The Fascinating First Amendment
The first amendment of the US Constitution has often been paraphrased as establishing “the separation of church and state”. Historically, this is a description given by Thomas Jefferson in private letters to the Danbury Baptist Church. They had expressed concerns about their religious liberties in the United States. Jefferson told them there was “a wall of separation between church and state”, assuring them that the state could not interfere with their religious beliefs or the establishment of their church. So is this the message of the first amendment? or just a simplification for the purposes of providing this assurance?
Amendment I
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.
First, the restriction applies singularly to Congressional legislative authority “Congress shall make no law”. Since Congress is the only legislative authority in our government, and no individual Congressperson is able to legislate on their own, this applies only to the act of legislation. It is not a limitation for lawmakers, it is a limitation for law making. An interesting note: Thomas Jefferson attended a church service held in the House of Representatives two days after writing to the Danbury Baptists.
Second, this protection of “an establishment of religion” can be both interpreted as a protection from legislative action against an established religious organization or denomination, or against any individual or group which may freely choose to establish or hold a religious point of view. Of course this would also prevent Congress from establishing or requiring adherence to a national religion, something quite common in the era the amendment was written. The next clause “or prohibiting the free exercise thereof”, suggests that any individual citizen of the United States cannot be restricted from expressing their religious views, in word or in action — provided such action does not infringe upon the rights and freedoms of others as protected by the Constitution and outlined in the Declaration of Independence. This freedom applies to individual government representatives as much as it applies to the larger public.
Thirdly, this is further affirmed with the freedom of speech clause, that any free expression of ideas cannot be prohibited, religious or otherwise; regardless of any determinations or opinions about the nature of that spoken or expressed idea. This is challenging, because there are many people who hold and express horrible and hateful ideas. But the assumption this seems to be making is that it’s better for people to hear these ideas, so they are aware of and can publicly reject them, than to give governing authority over the subjective determination of what is or is not reprehensible speech.
The legitimate powers of government reach actions only, & not opinions
~ Thomas Jefferson
This is particularly important under a partisan structure like our two party system in the United States. Because our politicians have become more party representatives rather than being public representatives, they are embroiled in a continuous competition. If they held legislative authority over speech, they would most likely use that authority to silence competitive or dissenting opinions from their own partisan objectives and agendas. This is demonstrated when we hear the speeches of these partisans, continuously making claims about the dangers or threats to our society by the views of the opposing side. A suspiciously convenient message for the benefit of the party. Of all dangerous speech, this is the most dangerous. As it enflames public animosity, polarization and division, and ultimately produces fear and hatred within a polity for those who hold different points of view. We’ve even seen these things turn to violence recently with a multitude of riots, property destruction and public outbursts. These types of messages are actually the sort that resulted, throughout the 20th century, in some of history’s worst atrocities perpetrated against people by their own governments, primarily for holding dissenting views.
The Soviet Union and China provide us with a cautionary example of this. Adopting the Marxist philosophy that all wealth and success had been gained by the oppression of the lower classes, led those lower classes to rise up violently against those who were deemed to be “privileged”. In those two countries alone there was an estimated 100 million people killed. The time it took from generating a broad public sentiment of hatred for the successful, to the development of that sentiment into a murderous rage was staggeringly short. Nazi Germany as well began by building up a harmless patriotism and sentiment of national identity, which took a murderous turn when it was prodded toward an ethnic-nationalism where all others were deemed to be “inferior races”, “parasitic”, and “deserving of annihilation”.
This demotion of individuals into groups, the “othering” of those unlike ourselves, has been historically the mechanism by which the seeds of such atrocities are planted — essentially, identity politics. In every case, the process began through the regulation of speech, of opinion, of public sentiment. While there is a universal understanding of the objective value of each individual human life, when we can eliminate individuality and cause people to see each other as only part of a group based on their differences or viewpoints, and then vilify that group; it becomes much easier to justify the horrific actions that history has shown us all too clearly people are capable of. By forcing people into groups, and then rendering a group “the enemy”, war becomes justified.
The interesting thing about this amendment, is that it relies on public sentiment to establish societal taboos which will broadly reject harmful ideas. So why doesn’t this carry the same danger of public sentiment “othering” people? Because it also values the right of individuals to freely express their ideas, resulting in an individual being held responsible for their own words rather than being relegated to a group. People tend to have conversations face to face, and those who express certain reprehensible ideas will be ostracized as an individual. With legislative action, it becomes necessary to remove this right, and any acknowledgement of it; or the legislative action would otherwise be impossible to justify. It also requires ignoring the individual and focusing on a group, those who collectively hold the “wrong views”. Government action is coercion, it is force; and while public rejection can be humiliating, it doesn’t carry the same capacity for the use of deadly force. So this amendment not only ensures the protection of any and all speech by all individuals, but it places the responsibility on the larger society to manage social taboos and public sentiment. It encourages societies to dialogue and come to consensus, a much healthier alternative than partisan discord.
What’s even more interesting is the priority of free expression over even the law itself. This is demonstrated by things like religious exemptions such as conscientious objections to military service. Individual liberty becomes paramount over government authority. This also means that societies and individuals become responsible for self-governance, predicated on broad public discussion, and an acknowledgement of individual worth and dignity. The expression of “dangerous ideas” is far less dangerous than the forceful governance of ideas, as history teaches us.
The next and natural continuation of this idea, is the freedom of the press. A free press is the mechanism by which this broad public dialogue is possible; yet only when the press is free. Of course we do know that journalists are people with their own ideas, and their views should be discussed and considered rather than simply adopted; but they do provide us with visibility to the greater public discussion. What we find historically is that these countries where the worst horrors had been perpetrated, they have always used the press to manipulate public sentiment toward their cause. This suggests that any political interference in the widespread dissemination of information, is another seriously dangerous thing. The free press is essential, and once it becomes subject to any degree of coercion, partisan influence, or censorship of information, it can literally alter and influence the entire public discussion, and radically change broad public sentiment.
Finally, we must facilitate this discussion, and so we ensure the protection of people’s natural right to gather peacefully, to engage in open dialogue. They are not just to assume all they’ve heard from the politicians and the free press is true simply because it’s proclaimed, rather to consider and reconsider ideas continually, debate and develop a broad understanding and sharing of that public responsibility. We are afforded this opportunity by our freedom to speak, and to gather together for discussion, even if it comes time to express grievances against our own government. By engaging in open conversation, we also can become accustomed to hearing and considering different points of view, and refining our own ability to articulate our viewpoints.
This first amendment is a fascinating and critical protection even of our thoughts. We think most often with our words, if our words can be governed, our thoughts can be governed as well as we are then beholden to censor ourselves when turning thought into speech. When public opinion is governed, conversations shift, thinking changes, viewpoints become dogma, and dissent is met with force. Free expression allows our viewpoints to be open to public critique, but doesn’t carry this same force, nor the capacity to drive general sentiments into the dark places it can go under coercion. This amendment does have the unfortunate drawback of giving no protection whatsoever against being exposed to offensive ideas, rather it guarantees that we will. Which is not only the solution to ensure that reprehensible speech heard is rejected publicly, but it also gives us motivation to be careful with our words, and also to listen; a critical component of conversation. All of which is an essential part of building this public consensus. The amendment assumes that there is greater wisdom in the collective millions of citizens, that the few who hold coercive power.
This amendment is a brilliant, well planned addition to our Constitution and one that specifically has allowed our society to grow and develop. It has allowed us to challenge and overcome historically universal institutions like slavery, and also for the protection of valuable traditions and faiths which offer us hope, and solace, and confidence; and the affirmation of an individual’s divine worth. If opinions are worthy of being held, there should be no fear in articulating and defending them publicly. If the public rejects them, it gives us good reason to at the very least, reconsider them.
So in my opinion, “a wall of separation between church & state” is not a particularly accurate description of this amendment, though it certainly served to alleviate the concerns of the Danbury Baptist Church. This amendment is far more nuanced and comprehensive in it’s scope and application. A wall provides a two-way restriction, while this amendment does not. Rather it’s a prohibition on the passing of laws which would infringe upon the free expression of thought, of opinion, of speech, and public discourse. A fascinating one-way limit on Congressional legislative authority.
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