2.5 The new Constitution

The US Constitution and the Bill of Rights

The US Constitution and its guarantees of free religion, speech, press, assembly and petition were influenced by the long European  history of religious warfare, the ideas of Enlightenment philosophers, the Virginia Declaration of Rights of 1776.  Another major influence,  according to some scholars , and a proclamation of Congress,  was the federalist state and national structure of the Iroquois Confederacy.

Virginia Declaration

The very first legal hurdle in creating a system allowing free speech was taking away the government’s power of prior restraint — interference with publications or speeches before they reach the public.   Although prior restraint censorship ended in 1694 in Britain, post-publication prosecutions for sedition and libel were common.  Legal theory in the new American republic held that people should be free to publish whatever they liked, as we see in the Virginia Declaration of Rights of 1776 which was the basis for the US Bill of Rights.

Article I : That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Article 12: That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments. That any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.

A month later, in Philadelphia, the Declaration of Independence was signed:  We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The rights embedded in the Virginia Constitution were not specifically spelled out in the U.S. Declaration or later, the Articles of Confederation of 1783. Nor are they expressed in the new Constitution of 1787. Arguments about the need for a Bill of Rights continued in the late 1780s.

Virginia, meanwhile, passed An Act for Establishing Religious Freedom in 1786. Largely written by Jefferson, it was maneuvered through the General Assembly by James Madison. “Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments … tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of (* text not inserted * ) the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others … Be it therefore enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities.

Jefferson had this to say about the *text not inserted* :

* Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed by inserting ‘Jesus Christ,’ so that it would read ‘A departure from the plan of Jesus Christ, the holy author of our religion;’ the insertion was rejected by the great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mohammedan, the Hindoo and Infidel of every denomination.  — Thomas Jefferson, Autobiography

Similarly, James Madison led the opposition to a bill establishing  “A Provision for Teachers of the Christian Religion. “If finally armed with the sanctions of a law, will be a dangerous abuse of power,” he said  in Memorial and Remonstrance   Against Religious Assessments.

James Madison and a committee from the Constitutional Congress originally proposed 12 amendments as a bill of rights, the first three involving freedom of speech:

1) The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal flights of conscience be in any manner or on any pretext infringed;

2) The people shall not be deprived or abridged of their right to speak, to write or to publish their sentiments, and freedom of the press, as one of the great bulwarks of liberty, shall be inviolable;

3) The people shall not be retrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions or remonstrances for redress of their grievances.

These are eventually compressed into one First Amendment:

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.