The words are plain, blunt and unequivocal — without literary frill or poetic flourish — a directive intended to put the natural rights of citizens above and beyond the punitive power of the new federal government:
“Congress shall make no law . . . ”
Read aloud, this opening phrase of what would become the First Amendment to the newly ratified Constitution of the United States has almost a ring of harshness in the admonition to officials of the new government. Hands off, the amendment says. Hands off religion! Hands off dissent! Let the people speak out. Let them publish critically about their elected officials, and petition to right whatever wrongs they perceive done them. Let them assemble peaceably to protest injustice. That was the message the members of the First Congress sent in 1789 as they drafted that amendment and the others that would make up the Bill of Rights. If the people of the states decided to ratify the amendments, there indeed could be a “more perfect Union.”
No one should have been surprised by the strong tone and prohibitive tenor of the first 45 words of the Bill of Rights. Two years earlier, meeting in Philadelphia from May until mid-September 1787, the members of the Constitutional Convention had blundered when they refused to include in the proposed national charter specific language that would bar the new government from stripping away the powers of the states or ripping away individual liberties that American citizens claimed were “unalienable.”
There were a handful of delegates who favored such a measure to protect the rights of the states and the people. Luther Martin of Maryland had written a version of a bill of rights but did not introduce it after gauging the negative feelings of the overwhelming majority of his convention peers. Charles Pinckney of South Carolina and Elbridge Gerry of Massachusetts had made a pass, on August 20, at pushing through a provision assuring freedom of the press, but it was overwhelmingly voted down, as Edward Dumbauld recounts in The Bill of Rights and What It Means Today (1957). Then, a few days before the convention adjourned, George Mason of Virginia warned his colleagues that public discontent was building in opposition to their work and that they needed to add a bill of rights. Anxious to complete their work, the delegates rebuffed Mason, but the four months of secret sessions had taken their toll on the people’s blind support for a new constitution. Americans had fought a revolution to rid themselves of an all-powerful, oppressive central government, insensitive to citizens’ rights. Now, Mason warned, folks were fearful that the 55 delegates, meeting with doors barred and drapes drawn, were drafting a blueprint for the same sort of autocratic bureaucracy.
Although there were no formal reports on the convention’s progress, the walls — as is the case whenever government relies on secret deliberations — had ears. Inevitable leaks must have occurred regarding what was going on behind closed doors. Individual delegates had their own ideas about issues. Some of them had come to Philadelphia merely to improve on the ineffective Articles of Confederation — the country’s initial constitution that failed to provide sufficient power to the central government. There had been a Virginia Plan, a New Jersey Plan, and a Connecticut Compromise for the new government; these related to the structure of the government and congressional representation for the people. There had been the “completely daft” suggestion from Alexander Hamilton, the New York delegate, for a sort of mini-monarchy, mirrored after the British government — which he called “the best in the world.” No wonder, given the delay and uncertainty, that public anxiety, as Mason said, was building. A bill of rights that protected specific individual rights was what the Constitution needed, he said. It would “give great quiet to the people.” It would still the growing public unrest.
Mason realized that his associates were tired from long weeks of work that included emotional discussions. They all had made sacrifices to participate in the convention. Many had traveled long distances to Philadelphia, and they were neglecting familial and business obligations. They were tired. They wanted to wrap up their business and go home. But, Mason argued, composing a federal bill of rights would not be time consuming. Five state constitutions included protections of citizen rights against government oppression. As the chief architect of such a declaration in the Virginia charter, he assured the convention that the addition, based on the bills of several states, could be drafted and grafted onto the proposed constitution “in a few hours.” Gerry made a motion that a committee be selected to draft such a bill. Mason seconded. When the vote was taken, a majority of every state delegation opposed it. Mason, his fellow Virginian Edmund Randolph, and Gerry refused to sign the Constitution. Mason later declared he would chop off his right hand before he put it to such an imperfect document.
In fact, on September 17, 1787, only 39 of the 55 convention delegates put their names to the proposed constitution before George Washington, who had presided over the deliberations, sent the draft to the Continental Congress to be transmitted to the 13 state conventions for ratification. Mason, Gerry, and Randolph flatly and unapologetically stated their reasons for refusal. The other 13 delegates already had left the convention. No doubt some, drawn home by pressing business or financial obligations, simply left before all the “I”s were dot- ted and “T”s crossed. Others could have left their proxy favorable votes — as did John Dickinson of Delaware — but for their own reasons decided not to do so. There were, no doubt, a few among the 55 who worried that the document upon which they finally agreed went far beyond a simple revision of the Articles of Confederation, for which they thought they had convened. Others may have felt that the proposed charter’s language went too far in endangering states’ rights or did not go far enough in assuring citizen liberties.
Before adjournment, Benjamin Franklin, the oldest delegate, pleaded with his colleagues to endorse the document. “I confess,” he said in a personally written entreaty that was read on his behalf, “that there are several parts of this constitution which I do not approve at present.” Franklin added, however, that “with all its faults,” he thought it the very best the convention could create, given the disagreements among the delegates. So with 39 signatures, the proposed constitution was transmitted to the states in hopes that each would call a convention and ratify it. With that, the political campaign either to adopt the draft or to defeat it was on, with newspapers reporting opinions on both sides. There was intense debate in many state capitals, much of it centering on the absence of a bill of rights.
Mason went home to Virginia to join with Patrick Henry in an effort to kill the Constitution there. From France, Thomas Jefferson, the U.S. minister, sent a letter to James Madison asserting that “a bill of rights is what people are entitled to.” Later he wrote to fellow American diplomat David Humphreys: “There are rights that are useless to surrender to the government, and which yet, governments have always been fond to invade. These are the rights of thinking and publishing our thoughts by speaking or writing.” Madison, who turned his back on fellow Virginian Mason when the older man pleaded in the convention for a bill of rights, had committed himself to help get the Constitution ratified as it had been drafted. He must have felt uncomfortable when he realized that Jefferson, his political mentor, agreed with Mason. Madison was less than candid in responding to Jefferson’s letter.
Convinced that a bill of rights was not a crucial ingredient for the Constitution, Madison put his considerable political writing skills into the media campaign for ratification. A bill of rights, he maintained, simply was not needed to protect freedoms that were natural. Madison joined with Hamilton (who had abandoned his nonsensical monarchical affectations early on) and with John Jay (who would soon become first chief justice of the United States) to draft what came to be known as The Federalist Papers. They published the essays under the pen name “Publius,” with Hamilton carrying most of the writing load, Madison sharing some of the heavy lifting, and Jay contributing little. Addressed to “the People of the State of New York,” these 85 well-reasoned essays promoted the values and virtues of the proposed constitution and comprise what Edward Mead Earle has described in The Federalist (1941) as “frankly, a campaign document.” They first were published in New York newspapers in October 1787, just a month after the convention, and continued well into May 1788. They were republished and circulated elsewhere as newspaper articles and in book form.
Mason (sometimes writing as “Cato”) and fellow Virginians Richard Henry Lee and Patrick Henry, while not so prolific as Madison’s team, launched their own media propaganda campaign against ratification of the Constitution. A contentious partisan press was evolving in the land, and Republican editors welcomed articles and letters from constitutional opponents like Mason, just as Federalist publications took the work of “Publius.” Mason knew that a patriot press had earned the confidence of the people during the revolution, and he warned that without an amendment for protection, newspapers that criticized government would be endangered. At the Virginia ratifying convention, Mason stated, “Now, suppose oppressions should arise under this Government, and any writer should dare to stand forth, and expose to the community at large the abuses of those powers; could not Congress, under the idea of providing for the general welfare . . . say that this was destroying the general peace, encouraging sedition, and poisoning the minds of the people? And could they not . . . lay a dangerous restriction on the press?”
The rhetorical questions needed no verbalization in the minds of many patriots. The opening words of one of Mason’s articles highlighted what he considered the most glaring defect in the drafted constitution. “There is no Bill of Rights,” he wrote, “and the Laws of the General government being paramount to the Laws and Constitutions of the several States, the Declaration of Rights in the separate states are no Security.” He expressed particular concern that there was no statement “of any kind, preserving the Liberty of the Press.” Mason concluded with a dire prediction that without protection for individual liberties, the government would “commence in a moderate Aristocracy. It is at present impossible to tell whether it will, in its Operation, produce . . . a corrupt oppressive monarchy.”
Henry, at the Virginia ratifying convention, warned his fellow Virginians to be “extremely cautious, watchful, jealous of your liberties; for, instead of securing your rights, you may lose them forever.” On the other side, Hamilton waited until his penultimate Federalist essay before he dealt directly with the needling issue that would not go away — a bill of rights. He asserted that “bills of rights, in the sense . . . which they are contended for, are not only unnecessary, but would even be dangerous.” He defined the “zeal” for such restraints on government as “injudicious.” He was particularly critical of any suggestion that press liberty could be assured. “Whatever fine declarations may be inserted in any constitution respecting it,” he said, “must altogether depend on public opinion and the general spirit of the people and the government.”
These contentious points of view, and others on diverse civil liberties questions, found their way into the floor fights at many state conventions before New Hampshire became the ninth state to ratify, the bar that the delegates had set for ratification. Opposition in many states was heated. Rhode Island, the smallest of the states and fearful of an all-powerful central government, had boycotted the Constitutional Convention; it was the only state to do so. The leaders of tiny “Rogue Island” now refused to call a state conference to consider ratification. Instead, they conducted a town-by-town referendum, and the citizens turned out to vote the Constitution down by a stunning 10-to-1 margin.
North Carolina, where negative views were also strong, called a convention, but participants spent little time talking about ratification. Instead, they mostly discussed the need for a bill of rights and what should be in it. There was heated agitation in Massachusetts, New York, and Virginia — large states where there was strong sentiment for a second national convention to correct the imperfections of the draft so recently completed. In New York, the vote was close; ratification carried by only three votes. Had 6 more of the 368 delegates followed Henry and Mason in Virginia, the Constitution would have been lost there.
In Massachusetts, there were predictions that the state convention would refuse to embrace the Constitution. It was John Hancock who offered a compromise that saved ratification in the Bay State. Hancock, whose scrolled signature was the most prominent among signatories to the rebellious Declaration of Independence, was a strong advocate for a bill of rights. He had served as president of the Continental Congress, and he knew that operating the government under the provisions of the Articles of Confederation was damaging its credibility. He proposed therefore that Massachusetts ratify the Constitution but that its delegates insist that the First Congress, or a new federal convention, draft a bill of rights to be approved by the states. Had 6 delegates among the 168 in Massachusetts failed to follow Hancock’s advice, the Constitution would have failed there.
Of all the founders, Madison played the most important role in helping guide the Constitution through the quagmire of political dissent, then pushing the Bill of Rights through the First Congress. History regards him as the “father of the Bill of Rights.” Having helped craft the seven articles of the Constitution that divide powers between the central government and the states and created three branches of a new government, Madison was determined to be an active player in its affairs. To do so, he had to become an active candidate for the House of Representatives. He faced opposition from another rising political star, James Monroe.
All of Virginia knew that Madison had turned his back when Mason had made his case for a bill of rights in the national convention. Many were aware that he had a hand in writing The Federalist Papers, which called a bill of rights “dangerous.” As he and Monroe campaigned in their congressional district, the voters knew that Monroe was an outspoken proponent for a bill of rights. Now, under pressure of complaints from constituents, including Baptist leaders whose small but growing “sect” had felt the sting of religious persecution in Virginia, Madison flip-flopped. He publicly endorsed amending the Constitution and said that if he were elected to Congress, he would work to provide a bill that assured citizen freedoms. A month before the election, he declared in a letter to George Eve his “sincere opinion that the Constitution ought to be revised, and the first Congress . . . ought to prepare and recommend to the states for ratification the most satisfactory provisions for all essential rights.” He specifically called for religious liberty “to the fullest latitude” and freedom of the press. Madison defeated Monroe by 366 votes.
George Washington, the new president, stated in his inaugural address on April 30, 1789, his preference for the Constitution to be amended by Congress, squelching once and for all the idea of a second constitutional convention. The debate that had raged in many state conventions resulted in eight states submitting as many as 200 proposed constitutional amendments for consideration by the new Congress. Madison went to work examining them and establishing priorities. After duplicate recommendations were consolidated, the number was reduced by about half.
When Congress met in April, Madison discovered that approximately 80 of the 100 requested changes were favored by four or fewer states. From the remaining list, he culled 22 issues and finally proposed that Congress consider 14 amendments. In early May, Madison told his fellow House members that he would have a list of proposed amendments ready for their consideration in a month. Other members of the House and Senate were in no hurry. Many of them had other legislative priorities that dealt with making functional the national government, which had been paralyzed under the now discarded Articles of Confederation. It was clear that many members of Congress would drag their legislative feet on constitutional amendments in favor of government business they thought more important, including the budget, how to fund it, and international affairs.
To convince them that a bill of rights was a pressing issue, Madison borrowed a paragraph from the lecture Mason had given the Constitutional Convention during its delibera-tions. The people were expecting Congress to act, he said, noting the 200 separate demands of amendments that had come in from the states. He spoke to his colleagues, as Mason had spoken to him, of the “anxiety” among citizens that their liberties were unprotected. Members of the public, he said, were waiting for assurances that this government would not abuse their inalienable rights.
“I believe that the great mass of people who opposed the Constitution disliked it because it did not contain effectual provisions against encroachments on particular rights,” he declared. He focused on what he called “the choicest rights”: free expression — speech and press — and religious liberty. Members of the government, he warned, should not assume that such rights were secure “while a great number of our fellow citizens think these securities necessary.”
Five weeks later, Madison presented the House with his honed list of proposals. With some House members still grousing, he again warned them of the feeling among many citizens that the government had let them down. A bill of rights drafted by Congress, he said, “would extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they so valiantly fought and honorably bled.” It also would help unify the land. By this time, Madison’s conversion to the cause for amendments to protect citizen liberties was absolute, and he was well on his way toward becoming “the father of the Bill of Rights.” Among the arguments he relied on to convince his colleagues in Congress was his assertion that a nation of 11 states well might become a nation of 13 with a bill of rights, since Rhode Island and North Carolina had not yet embraced the Constitution. Both, he accurately predicted, would be favorably impressed by the amendments.
Congressional approval, however, was hardly immediate or assured. The debate rattled around the House and then the Senate until late September 1789, when Congress then approved and sent the amendments to the states for ratification. In the resolution offering the bill of rights to the states, Congress candidly acknowledged that public expectations had driven their action; Congress had heard and responded to the voice of the people. The resolution’s preamble stated,
The conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the government will best insure the beneficent ends of its institution, be it resolved . . .
Now the people would consider Congress’s recommendations. What ultimately emerged as the First Amendment was actually the third amendment of the 12 proposed to the states by Congress. The first two — one dealing with congressional salaries (ratified in 1992 as the 27th Amendment) and the other with apportionment — were rejected by the states. Thus, the third proposed amendment — the 45 words protecting the freedoms of religion, speech, press, assembly, and petition — became the First Amendment. Within nine months, the Bill of Rights had been ratified; “Rogue Island” became the deciding state on June 7, 1791. With ratification, rights of free expression and the other vital civil liberties set out in the Bill of Rights were made secure. The founders who served in the First Congress were certain of that, but they could not have been more wrong.
The emergence of a competing and politically divided partisan press raised the hackles of politicians who suffered sharp and caustic criticism. Beginning with the second term of George Washington, those in government felt growing resentment toward editors who condemned their actions. Washington, for all his popularity, bristled and sometimes in cabinet meetings exploded at what he believed were unfair criticisms of his leadership by journalists he called “infamous scribblers.” It took only seven years for the Federalist Congress, during the administration of President John Adams, to pass the Sedition Act of 1798. By then, the nation’s relationship with France had deteriorated. Fearing an invasion, Adams sent a request to Congress for funding to enlarge the nation’s military. His actions were criticized sharply by some of the nation’s anti-administration newspapers.
In response, Congress made a law abridging freedom of the press. The government thereby declared war on editors and newspaper owners whose publications belittled, ridiculed, mocked, or denigrated Adams and his administration. There followed a series of federal Sedition Act and common law prosecutions that sent editors to jail, fined them, closed down some publications, and created an environment of hostility among Adams supporters. Gordon Belt, in his essay “The Sedition Act of 1798,” provides detailed scholarship on the litany of abuses the government unloaded on critics of the president and the Federalist Congress. According to Belt, editors were harassed and harried, slugged, indicted, jailed, and fined. The intimidation even extended to a number of the clergy and to ordinary citizens who erected on their property “liberty poles” emblazoned with posters that urged early retirement for Adams and long life to Vice President Thomas Jefferson, already Adams’s rival in the 1800 presidential election. In one notorious incident, Jacob Schneider, a Pennsylvania editor, was grabbed by troops at his place of business, taken to the public whipping post, and beaten with a lash, without any formal judicial hearing or trial.
The most famous prosecution was that of a member of Congress, Matthew Lyon, who also was a Vermont publisher. Lyon, while campaigning for election to the House in 1798, wrote a piece condemning Adams’ “continual grasp for power” and describing the president’s “unbounded thirst for ridiculous pomp, foolish adulation and selfish avarice.” Indicted, Lyon was sentenced by a jury to four months in prison and fined $1,000. A neighboring Vermont editor, Anthony Haswell, attacked the administration for its action against the congressman and called for a lottery to raise money to help Lyon pay his fine. This, the Federalist prosecutor decided, was in violation of the Sedition Act. Haswell was sentenced to two months in jail and a $200 fine.
The most outrageous prosecution involved a group of convivial fellows in a Newark bar, lifting their glasses in a round of toasts. They heard the echo of gunfire as Adams arrived in town to the welcome of a 16-gun salute. One of them, Luther Baldwin, who was “a little merry” according to press accounts, declared (and there is some question about his direct quote) that he would not mind at all if some of the shot lodged in the president’s buttocks. Baldwin and his two pub mates were prosecuted and fined. They were jailed until the fines and court costs were satisfied.
Congress’s law abridging freedom of expression expired with the election of 1800. The new president, Jefferson, pardoned those who had suffered conviction under it. Regardless, that 1798 act would not be the last law made that infringed on free expression. In times of war (both hot and cold) or national crises or national distress, criticism of the government has often not been welcomed by officials. The government has imposed laws or policies limiting rights of free expression, free association, and access to information needed by a self-governing citizenry.
More recently, in the wake of the al-Qaida attacks of September 11, 2001, the government passed the USA Patriot Act of 2001, giving itself extraordinary powers impinging on citizen rights. Presidential executive orders created increased government secrecy. Actions were taken to monitor the telephone conversations of some citizens without warrants. Other measures closed off public and press access to trials in which alleged terrorist “suspects” were secretly deported.
One of the aspects of the Patriot Act that raised protests is the power the law gives the government to review what citizens read. The law requires libraries and bookstores to report what publications a person has checked out or bought if the information is requested by the Federal Bureau of Investigation during an official investigation. In addition, the act allows the use of so-called national security letters to prohibit librarians or booksellers from disclosing such requests. Just as the Sedition Act of 1798 had nothing to do with sedition, some question what the Patriot Act of 2001 has to do with patriotism. Both were rushed through Congress in a time of war fever with little or no public protest by a fearful citizenry. In both instances, there was support for the government, but that gradually dissipated as the breadth of the laws became known. A striking difference, however, can be found in the public’s understanding, then and now, as to what is at stake when freedom of expression comes under attack.
Matthew Lyon was reelected in 1798 while sitting in his jail cell. Two years later, Adams was not. The voters came to understand that they needed to regain the rights of freedom of expression. Most recently, a series of public opinion polls reveal a remarkable absence of support among U.S. citizens for First Amendment rights — and, what is worse — a disturbing lack of knowledge about First Amendment values. These results reflect a marked departure from the public attitudes that changed the mind of Madison and shook the founders from their political complacency in the 1780s. They also starkly contrast the public opinion that resulted in Adams’s defeat.
These polls document that only 3 in 100 Americans can name all five freedoms in the First Amendment. Only 15 percent know that it guarantees freedoms of press and assembly. More than 80 percent fail to list freedom of religion as part of the amendment, and 36 percent do not identify freedom of speech as a First Amendment right. In a separate survey of 100,000 high school students, 36 percent were convinced that journalists should not be allowed to report news without government approval. One in three had no opinion about whether religious liberty, freedoms of speech and the press, and the rights to peaceably assemble and petition the government to correct wrongs were constitutional rights.
Some of the surveys’ results can be explained by the terror that lingers from the September 11 attacks, but regardless, the ignorance that pervades society with regard to rights of free expression is disturbing and dangerous. At such a time, this encyclopedia detailing and defining First Amendment rights could not be more valuable. These volumes, the work of three distinguished First Amendment scholars — John R. Vile, David L. Hudson Jr., and David Schultz—provide an indispensable and lasting resource. In a real sense, their work serves the public interest.