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Writing the First Amendment

  • After 1787 Constitutional Convention, Anti-Federalist complained that the new Constitution had no Bill of Rights
  • Bill of Rights passed as Amendments 1-10 in 1791
  • First Amendment contained guarantee of right to free speech
  • Congress edited Madison's draft of a broad right to free speech down to a narrower protection similar to the old British guarantee against prior restraint

You can read more about the way that that the Bill of Rights came into existence here. But the short version of the story is this.

After the Constitution was drafted in Philadelphia in 1787, and passed out to the states for their approval, many complained that the new Constitution lacked a bill of rights. In fact, as part of their agreement to ratify the Constitution, these states demanded that a list of guarantees against government encroachment be added to the Constitution. For a time, James Madison, the principal architect of the Constitution, resisted these demands. He believed they were unnecessary, but in 1789 he decided that it would make more sense to give these critics what they wanted and thereby silence the opposition to the new government. So, during the first session of Congress, he proposed a series of amendments, drawn by compiling all the recommendations made by the state ratifying conventions. Among these was an amendment guaranteeing the right of free speech. This amendment, along with nine others, was ratified on 15 December 1791.

It was a clever move on Madison's part. By co-opting the primary complaint of the Anti-Federalists he took the wind out of the sails of the opposition to the new government. But he did not get everything he wanted out of these amendments. While to a great extent Madison was just trying to silence the opposition, two of the amendments he proposed held a deeper importance to him. One stipulated that "no state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases."35 In other words, Madison wanted an amendment protecting people from violations of their rights by state governments. These were the more dangerous political bodies, he argued; state governments were far more likely to be dominated by small groups of citizens who sought to use the power of government to advance their narrow self-interests. Within the national government, where so many conflicting interest groups would be represented, it was unlikely that a single group or coalition would be able to gain control over the government and distort the appropriate direction of public policy. Therefore, it was more important to protect citizens from these untrustworthy state governments than it was to restrict a federal government that had its own internal checks.

The other amendment that held deeper meaning to Madison was the amendment protecting speech. Here again, he saw an opportunity to provide greater protection to the public from violations by not just the federal government, but also the state governments. Therefore, the speech amendment that he recommended to Congress stated that "the people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."36

Unfortunately for Madison, he accomplished neither of these two things. His proposal for an amendment protecting citizens from state abuse was rejected, and Congress substituted far narrower phrasing in the final draft of the amendment protecting speech. Rather than Madison's more comprehensive statement about the right of "the people," Congress stated only that "Congress shall make no law . . . abridging the freedom of speech, or of the press."

Moreover, not only did Congress draft the amendment so as to restrict only the federal government, it failed to elaborate more fully on the depth of the protection offered. In other words, there was no suggestion that Congress conceived of this right in any other terms than those within the British common law tradition; that is, free speech meant no more than no prior restraint.

Such a limited right may strike modern readers as surprising. But it is important to remember that the framers were influenced not just by the legal tradition they inherited but also by their philosophy of government. These people had been raised within a philosophical tradition labeled republicanism, which meant that they believed that politics should be a collaborative process in which citizens worked together to identify the common interests of the community. Politics should not be a contentious arena in which conflicting interests battled one another for primacy. It should be a calm, rational forum in which all citizens set aside their personal interests in order to identify what best served the community.

Within this context, speech was seen as a tool for advancing this civic conversation. It was protected so that the community could fully consider its collective needs. Speech was not deemed worthy of protection because self-expression was considered necessary for personal self-fulfillment; it was deemed worthy of protection because it served a necessary civic function.

It is not all that surprising, therefore, that with the First Amendment ratified, speech was still not as protected as it is today. It is not surprising that George Washington could wax on the importance of free speech—"if the freedom of speech is taken away," he is reputed to have said, "then dumb and silent we may be led, like sheep to the slaughter"—while also condemning political opponents who spread their "nefarious doctrines with a view to poison and discontent the minds of the people against the government."37 Even Thomas Jefferson, perhaps the early republic's most ardent defender of the common people and their rights of speech, supported the use of state libel laws to silence the opposition papers that he believed had overstepped the appropriate bounds of free speech.

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