Importance and History of the First Amendment

8/9/2019 Importance and History of the First Amendment

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BROOKDALE COMMUNITY COLLEGE

The First AmendmentArgument Why It Is Our Greatest Right

John Swift

5/2/2007


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The American Revolution was not just a war for independence, but was the battle for an

idea. The idea being that the people would have the underlying say in the manner of their

government and how it would affect the lives of its people. However, there were different views

on how the government be constructed and where the power be divided. The main difference of

opinion was on how the relationship between state and national government be structured. Some

favored a more powerful national government, Federalists, and others preferred that the states

hold a majority of the power, Anti-federalists. Both came to a compromise if the Constitution

was to be ratified. The compromise was the Bill of Rights, the first ten amendments to the

Constitution. It extended certain and basic civil liberties to the citizens of the United States that

prohibited government infringement upon the people.

The Articles of Confederation was a success in governing the revolting colonies during

the time of the war, but it didn't allow for a strong enough central government for post war needs

(Articles). The representatives believed that if they made a central government with even the

slightest power to control the states that they would be trading the tyrannical government they

just left for a new one (Articles).Therefore, Congress had no power to coerce states do go against

their sovereign wills, European powers threatened borders set by the Treaty of Paris, and that

central government had no power to end disputes between states (Todsen). If the United States

was to survive then the structure of government was going to have to be reconstructed. However,

the two visions on how to best accomplish this were completely at odds with each other.

One of those ideologies is that of the Anti-Federalist, a person who advocated for states

rights and feared the authority of a central government. These people came from all walks of

American life, especially farmers, who saw a central government as only a tool used for taxation

(Williams). Leading supporters of this movement were Patrick Henry, James Monroe, and


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Samuel Adams (Williams). Anti-Federalists believed that the greatest threat to liberty of the

people and continuation of the republic was the government becoming increasingly more

powerful (Williams). The national government as established by the Constitution would not

work in a large area (Williams). Therefore, it would only work on a local setting (state) and that

a national government couldnt possibly represent the interests of the entire population

(Williams). The ultimate goal of the Anti-Federalists was the preservation of the republic, being

that the states would hold their sovereignty and limits is held on federal power. Even though they

opposed with the Federalist plan, the Constitution, they were divided on what the solution should

be (Lowi 32). The Anti-Federalists had a different conception of what a republic should look

like, but their beliefs were not necessarily less valid than the Federalists' view (Williams).

The Federalists are supporters of the Constitution and advocated for its ratification, they

also believed the national government should gain power at the expense of the states. Prominent

Federalists and authors of the Federalist papers, articles written to gain support for the

Constitution, were John Jay, James Madison, and Alexander Hamilton (Federalists). The

Federalist perspectives often clashes directly with the beliefs of their counter parts, Anti-

Federalists, and at times are at the opposite end of the spectrum. Federalists believe America is

the perfect setting for a republic because it is so large; that small republics would be destroyed

by the growth of interest groups (Federalists). The Federalists explained that states would not be

wiped out by a more powerful government. That the government would not need to have a

dependence on virtue and the idea that citizen would have to surrender their own interests for

that of the public welfare (Federalists).Under the Constitution, everyone would be forced to

compromise, and in that manner the public good could be achieved (Federalists). At the

Constitutional Convention the battle between the Federalists and Anti-Federalists escaladed with


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the Federalists getting the upper hand. In exchange for Anti-Federalist support, as soon as the

Constitution was ratified, a list of individual rights would immediately be proposed as

amendments to the Constitution (Swanson).

Collectively known as the Bill of Rights, it defines the private sphere of personal liberty

free of government restrictions (Lowi 67). It sets forth certain freedoms that were seen by the

Framers to be so basic they should be extended to every citizen; civil, substantive, and

procedural liberties. Civil liberties are most notably expressed in the first amendment stating the

rights of conscience; freedoms of speech, religion, press and petition (Britannica). Substantive

liberties are a series of restraints imposed upon the government defining what it shall and shall

not do; unlawful search and seizures, quartering of troops, and establishing a religion (Lowi 67).

A procedural liberty is the way government is supposed to act, being grouped together with the

category of due process (Lowi 67). For example, the government has the substantive power to

declare certain acts crimes and to arrest violators, however cant do so without observing the

rights of the accused (Lowi 68). Each amendment aims to protect from a specific branch of

government and even reserve rights to the states.

The most feared branch by the Framers was the Executive. It is the role of this branch to

enforce the laws; therefore amendments III and IV limit the power to do so without taking away

the ability to justly execute this role (Lowi 70). Largely this is in response to the behaviors of the

Crown during colonial rule. It forbids the search and seizure of property of the accused unless

probable cause is proven to a judge (Lowi 70). The Second Amendment exists because of fear at

the time of a consolidated government (Konig). The rights of the accused are crucial to ensure

liberty of the innocent in a free society.


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Many of the grievances against the Crown written in the Declaration of Independence are

protected in the V, VI, VII, and VIII Amendments limiting the power of the Judiciary (Lowi 70).

An indictment produced by a Grand Jury of the accused peers provides that the prosecutor

provide a substantial amount evidence to bring to trial (Albanese 74). The right of trial by jury

and a speedy trail protects the fairness of the proceedings. The decision of the ruling is better

decided by a group of the accused peers rather than an individual who might not be. The shorter

the length of a trail the quicker they can return to their life, unless proven guilty. Since all

accused are innocent they hold the right to be free until they are removed of that right by the

court (Lowi 70). Fifth Amendment guarantees that if a person is to be taken of their personal

property for the use other than their own that they be paid justly for it (Lowi 70). Example of this

would be when constructing highways, land owners must be given adequate compensation for

the land they must surrender. The most important check on power is on the governing body

which is the direct line of the people to the government.

Civil liberties are quintessential in the ideals of American life. The First Amendment

directly points a finger at the Congress. In very clear language states that Congress can make no

law that abridges religion freedom or establish a state religion (Lowi 70). The Amendment also

protects the vital resource to petition the government for grieves (Lowi 70). Above all else the

most important aspect of this amendment is the allowable ability to petition the government.

Power resides in the people to make their opinions made public, no matter how they believe they

cant suffer governmental repercussions because of it. No other provision of the Constitution has

given way to so many different views of its underlying meaning, throughout history there have

been many attempts to limit its influence and interrupt its actual meaning.


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Known as the Atlas of Independence, the second President and Founding Father, John

Adams passed a controversial law known as the Sedition Act, 1798-1801 (Wilson). This was the

first attempt made by the government to affect a civil liberty (Wilson). The law made it illegal to

combine with others to protest the dealings of government and denied to the print of writings that

were against the measures of government (Gilje). The right to petition the government even for

the passage of that legislation would have been illegal and violators could have been sentenced

up to two years in prison (Gilje). Even though it has been over two hundred years since the

Sedition Act, still today the interpretation of tests upon the amendment still occurs.

The Vietnam War was famous for its protests back home about US troop involvement;

most prominent of these demonstrations were done by young people. In December of 1965 two

students, Mary and John Tinker planned to wear black arm bands to school one day as a sign of

protest (Tinker v. Des Moines School District). School officials heard of this plan in advance and

passed a dress code forbidding such an activity, but the Tinkers followed through regardless

(Tinker v. Des Moines School District). The Tinkers were suspended for violating the dress code

(Tinker v. Des Moines School District). The Supreme Court favored with the Tinkers stating that

right of speech extended to their public school (Tinker v. Des Moines School District). In the

opionion by Justice Fortas he stated that; the students had the right to slient symbolic speech as

long as it did not interfer with the learning procress (Tinker v. Des Moines School District).

Cases like this clearify in which ways the First Amendment can be exercised. However, some

cases for example; Dennis v. United States, describes actions even though excerised through

public protest are not protected.

Eugene Dennis was the leader of the Communist Party in the United States between 1945

and 1948 (Dennis v. United States). He was arrested in New York for violating the Smith Act, a


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law that made it a criminal offense to threaten to overthrow the government (Dennis v. United

States). Dennis claimed that his speeches were protected even though they were violent and

described urgency in rebeling agaisnt the government (Dennis v. United States). The Court ruled

agaisnt Dennis because of the grounds that his speeches represented a real danger towards

national security (Dennis v. United States). Justice Vison said in his opinion that the right to

speech is not unlimited and that it will be lifted if that speech represents a clear and present

danger (Dennis v. United States). In a world of growning technology the question of how the Bill

of Rights would extend to cyberspace.

The Federal Communications Decency Act was passed in 1996 to protect children on the

internet from sexual predators (Reno v. A.C.L.U.). The act made it a crime to transmit obsecene

and indecont messages over the internet (Reno v. A.C.L.U.). The ACLU fought over that it

violated both the First and Fifth amendments (Reno v. A.C.L.U.). In a 7-2 decision the Court

decided that the Act violated not both of the amendments, but only the first (Reno v. A.C.L.U.).

Justice Stevens stated that the act was simply to broad to be enforced and that it set a content

based blanket restriction on the First Amenmend (Reno v. A.C.L.U.). The right of the people to

expose government dealings is an invaluable resource to make known information that otherwise

would be kept from the general public.

In 1971 the New York Times received secret information about the US involvement in

Vietnam and what really happened at the Gulf of Tonkin (NY Times v. United States). The

President had exaggerated the event to gain emergency war powers from the Congress, the Gulf

of Tonkin Resolution (NY Times v. United States). When the Times attempted to print this

information the government put an injunction to bar them from doing so (NY Times v. United

States). When the Times sued the defense of the government was that the information would


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indanger national secuirty (NY Times v. United States). The court affirmed the position of the

New York Times, this would be a clear violation of the freedom of the press (NY Times v.

United States). The freedom of the press doesnt end with just saying how you feel in an

editorial, equally important is how those feelings are expressed.

People today dont rely as heavily as they once did on newspapers. The television has

taken over the market, a mass media with many channels providing a twenty four hour broadcast

of nothing besides news. Many of the programs they air have personalities who give

commentaries on current events. Example of one of this is Countdown with Keith Olbermann, on

a episode airing on October 10, 2006, he comments negitively on the dealings of the President

(MSNBC). Throughout the commentary he shows distrust of the President and refers to him

indirectly as a tyrant (MSNBC). Olbermann expresses his deep concern for the future of the

country with the suspenstion of Habeous corpus as provided in a provision of the Miliatary

Commission Act (MSNBC). Such an act is exactly what the Anti-Federalists had intended since

the compromise that brought the Bill of Rights into exsistance.

The aftermath of the Revolution left the central government far to weak to sucessfully

continue to govern the states as a united country. During the Constitutional Convention

arguments between two conflicting perspectives, Federalists and Anti-Federalists, would lead to

the system of government we have working sucessfully today. The Bill of Rights is a precious

resource preserving the liberties of the people from government interferment and secures the

peoples power to control the government. Substantive liberties set guidelines setting what the

government can and cant do. The procedural liberties state how the government is supposed to

act and contains due process of law. The most important of these assorted types of freedoms are

civil liberties. These located in the First Amendment act as the guardians against the government


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and provide a persons ability to control their own destiny. There is hundreds of Supreme Court

cases since its ratification that have sought to limit, expanded, and define the text of the

Amendment. The upmost important aspect of the First Amendment is the ability to share the

opinions on all subjects; government, science, religion, whatever they are, without fear of

government interference. Ultimately, it is this ability that keeps the government in check, the

ability to expose. A people who dont have such a right cant truly say they are free.


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Works Cited

Albanese, Jay S. Introduction to Criminal Justice. 3rd Edition. Virginia Common Wealth:

Pearson, 2005. 74.

"Constitution of the United States of America." Encyclopedia Britannica. 2007. EncyclopediaBritannica Online. 5 Mar. 2007

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Dennis v. United States. No. 341 US 494. The Supreme Court. 4 June 1951.

Gilje, Paul A. "Alien and Sedition Acts." In Gilje, Paul A., and Gary B. Nash, eds.Encyclopedia

of American History: Revolution and New Nation, 1761 to 1812, vol. 3. New York: Facts

On File, Inc., 2003. Facts On File, Inc.American History Online. .

March 3, 2007

Konig, David Thomas. "Second Amendment to the U.S. Constitution." In Schultz, David, ed.Encyclopedia of American Law. New York: Facts On File, Inc., 2002. Facts On File, Inc.American History Online. . March 3, 2007

Lafferty, Martha M. "Bill of Rights." In Schultz, David, ed. Encyclopedia of PublicAdministration and Public Policy. New York: Facts On File, Inc., 2003. Facts On File,

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Lowi, Therodore J., Benjamin Ginsberg, and Kenneth A. Shepsle. American Government:Freedom and Power. 1990. Brief 2006 ed. New York: W. W. Norton & Company, 2006.

MSNBC. The Death of Habeas Corpus. 10 October 2006. 3 March 2007.

NY Times v. United States. No. 403 US 713. The Supreme Court. 30 June 1971.

Purcell, Sarah J. "Making a New Constitution: 17871788." The Early National Period, An

Eyewitness History. New York: Facts On File, Inc., 2004. Facts On File, Inc.American

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Reno v. A.C.L.U. No. 117 S. Ct. 2329. The Supreme Court. 27 June 1997.

Swanson, Rick A. "Bill of Rights." In Schultz, David, ed.Encyclopedia of American Law. NewYork: Facts On File, Inc., 2002. Facts On File, Inc.American History Online.

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Tinker v. Des Moines School District. No. 393 U.S. 503. The Supreme Court. December 1969.
http://0search.eb.com.library.brookdalecc.edu/eb/article-219002http://0search.eb.com.library.brookdalecc.edu/eb/article-219002


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Todsen, John P. "Constitutional Convention." In Sabato, Larry J., and Howard R. Ernst.Encyclopedia of American Political Parties and Elections. New York: Facts On File,

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"Articles of Confederation." In Gilje, Paul A., and Gary B. Nash, eds. Encyclopedia ofAmerican History: Revolution and New Nation, 1761 to 1812, vol. 3. New York: Facts

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Importance and History of the First Amendment

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