Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In the American political tradition, we often refer to the freedoms of religion, speech, press, and assembly as our “first freedoms”; first not only because they are protected by the First Amendment to our Constitution but also because the freedom to speak, write, worship, and assemble peacefully is central to any conception of liberty worthy of the name. As Justice Benjamin Cardozo noted in an important Supreme Court case in 1937, the “freedom of thought and speech” is the “matrix, the indispensable condition of nearly every other form of freedom.”
But simply declaring, as the First Amendment does, that “Congress shall make no law respecting an establishment of religion” or “abridging the freedom of speech, or of the press or the right of people peaceably to assemble” does not immediately settle our current debates about the shape this freedom should take in political life. For the government will, as it always has, make some speech—libel, fraud, perjury, etc.—subject to criminal sanctions. The question we are constantly wrestling with is where the line between protected an unprotected speech is to be drawn. Just last week, for example, the Supreme Court heard oral arguments in United States v. Alvarez, a case challenging a congressional act that made it a crime to claim falsely to have won a military honor.
Xavier Alvarez, an elected member of a local government board in eastern Los Angeles County, told a group of people in 2007 that he was a retired marine of 25 years and that he had been awarded a Congressional Medal of Honor for his heroic military service. Although he and his lawyers admit there was no truth to these claims, Alvarez nonetheless insists he had a constitutional right to make them. Whatever the Supreme Court decides, the outcome will depend on answers to some weighty questions– What is the purpose of the freedom of speech? Why do we have it? And are some types of speech beyond the pale of what is legitimately protected by the Constitution? The same may be said about the limits of religion and assembly, for we are always debating these anew. Is the Obama Administration’s mandate that religious organizations cover contraception, abortafacient drugs, and sterilization in their health insurance policies an affront to religious liberty? Should religious employers be subject to federal anti-discrimination laws? Is there a right to picket at the funerals of military servicemen? Can people simply campout in public spaces without appropriate permits?
To begin to answer these questions, it seems we must think through and understand our entire scheme of constitutional government. In a regime that seeks to protect the rights of individuals and create space for the vital institutions of civil society, we must balance the legitimate need for law and order against principled limits on government power. As the Founders were well aware, a legislature, made of ambitious and imperfect men, will, if left unchecked, draw “all power into its impetuous vortex.” The freedoms in the First Amendment stand as a bulwark against this type of concentration of power, first by protecting the liberty of conscience and the rights of religious and civic organizations and, second, by reminding successive generations about the rights that are indispensable to a free society. The power and force of the First Amendment is muted, however, if citizens are not educated and engaged. As the principal author of the First Amendment, James Madison, acknowledged, the “only guardian of true liberty” in a republican regime is, at the end of the day, the widespread “advancement and diffusion of knowledge.”
Justin Dyer, Ph.D. teaches political science at the University of Missouri, and he is the author of Natural Law and the Antislavery Constitutional Tradition (Cambridge University Press).
Friday, March 2, 2012