The First Amendment: Origin, History, and Modern Significance

Origins and Ratification of the First Amendment

The original language of the U.S. Constitution encountered difficulty during the ratification process among those who believed it was insufficiently protective of civil rights. Those arguments generated the first ten constitutional amendments in 1789, known as the Bill of Rights (Friedman, p. 75). The First Amendment, in particular, was considered necessary to ensure that the new American nation remained free from the type of state-sponsored religion from which the original settlers had fled in England, where the Royal Crown imposed Catholicism on the entire populace. It reads as follows:

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.

The First Amendment has been one of the most important elements of the U.S. Constitution ever since it was ratified in 1791. The first part is known as the "Anti-Establishment Clause," because it specifically prohibits the U.S. government from establishing a national religion. The second part guarantees the right to speak without content restriction. The final part is meant to guarantee that Americans have the right to question their elected leaders.

The monumental importance of these concepts is evident today if one simply conducts a worldwide survey of other countries where citizens have no such rights, more than two centuries later. In the eighteenth century, those ideas were nothing less than revolutionary.

Early Significance, Evolution, and History

One measure of the significance of the First Amendment is that legislators have been trying to circumvent it almost since its ratification. When slavery was still the law of the land, for example, Congress actually adopted a "standing rule" from 1840 to 1844 that suspended the applicability of the First Amendment to slavery, giving Congress the right to ignore any petition against it. That standing rule was only rescinded in 1844 (Haynes, et al., p. 47).

The other major issues that arose in the evolution of constitutional law as it pertains to the First Amendment included the distinction between regulating the actual content of speech and regulating the time, place, and manner of its expression. Very early on, the Supreme Court decided that the government has a legitimate interest only in regulating the external circumstances surrounding the free expression of ideas, but never the actual content of speech (Dershowitz, p. 143).

Justice Oliver Wendell Holmes articulated the issue in his famous example of shouting "Fire!" in a crowded theater, which is susceptible to regulation simply because it is capable of starting a dangerous riot. The right to be free from government censorship applies only to the ideas expressed in speech; it does not create an unlimited right to speak where the circumstances of the speech — rather than their actual content — pose a danger to others.

Modern Evolution of the Anti-Establishment Clause

One of the most important contemporary issues in First Amendment law concerns the interpretation of the Anti-Establishment Clause. Like the rest of the Constitution, the First Amendment is worded so broadly that much of constitutional scholarship — and litigation — rests on judicial interpretation. Many conservatives believe that the Anti-Establishment Clause prohibits only the actual establishment of a national religion in the manner of the English Crown. To them, the First Amendment guarantees only the right to freedom of religion, not the right to be free from religion (Dershowitz, p. 202).

The Supreme Court has interpreted the First Amendment to include the separation of church and state much more broadly. Under the conservative interpretation, the government might in principle be able to require some form of religious affiliation of its citizens, provided it did not specify any particular faith. That issue has arisen numerous times and in many different forms over the years, including whether public schools may require recitation of the Pledge of Allegiance with the words "under God," or whether "moments of private reflection" intended for prayer may be mandated during the school day.

Most recently, the issue arose over the matter of displaying engravings of biblical passages — such as the Ten Commandments — in public buildings. In that regard, one of the more curious modern facts of American life is that some jurisdictions still prohibit the sale of alcohol on Sundays because of the "Sabbath." These ordinances are patently violative of the Anti-Establishment Clause because of their religious connotations and obvious origin.

Even American currency bears the phrase "In God We Trust," which also appears to violate the Anti-Establishment Clause at least as much as other elements of government entanglement with religious ideas. In principle, that phrase is no less offensive to non-theists than the inclusion of the phrase "In Christ We Trust" would be to non-Christians.