Study Guide

Free Speech - Writing the First Amendment

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."blank" rel="nofollow">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.