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Legal Eagle
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. The first rule of construction of any writing is to interpret it in accordance with the "plain meaning" of its terms. Applying this rule to the First Amendment one finds that it is designed as an express limitation on the power of the Congress, not on State legislatures - recent U.S. Supreme Court jurisprudence to the contrary notwithstanding. This would seem to be made exceedingly clear by the phrase "Congress shall make no law...", but for those doubters an appeal to the second rule of document construction - a writing shall be interpreted in accordance with the intent of the parties thereto - makes this intent beyond dispute since at the time of the adoption of the Bill of Rights, several of the approving States had established state religions by law. Therefore the plain meaning of the text and the intent of the framers agree together that the First Amendment only applied to the newly created Congress of the United States and not to the States. Continuing on then, one finds that the First Amendment expressly prohibits the U.S. Congress from making any laws:
The question then becomes, what do these prohibitions on the U.S. Congress mean? First, the two religion clauses are compliments of one another. In practical terms, the first clause prohibits the Congress from setting up a national church, such as existed in England where the King was the head over the Anglican Church or Church of England. The principal concern was that Congress would set up a national church which would be preferred before all others, the precise situation that had caused many of our forefathers to leave England for America. On the otherhand, the second clause prohibits the Congress from disfavoring some religions over others by passing laws that would infringe upon a person's free exercise of his or her religious rights in accordance with the dictates of his or her own conscience. The plain meaning of these clauses therefore was not to minimize the role of religion in public or private life, but rather to prohibit the use of the awesome power of the federal government to impose one's religion upon another. Second, the freedom of speech and of the press clauses work hand in hand to insure an open marketplace for ideas. Although the meaning of these clauses do not appear to have been completely settled at the time our Bill of Rights were adopted, it would appear that the plain meaning of the words used would indicate that Congress had no authority whatsoever to limit free speech (i.e. the spoken word) or the freedom of the press (i.e. the printed word or images). Some would object to such a reading on the grounds that there must always must be limits on the exercise of one's rights, including one's rights to free speech and freedom of the press. I would agree that there must be limits, but the question is not whether there should be limits, but rather who has the authority to set the limits. As we have seen the First Amendment applied only to the Congress and not to the States. Therefore, consistent with the plain meaning of the First Amendment, the people themselves (through self-restraint), the judiciary (by appeal to common law principles - i.e. libel and slander - before a jury of one's peers) and/or the state governments, acting in accordance with the authority given under the several state constitutions, were the ones vested with the authority to place appropriate limits on free speech. Thus, it is difficult to see the compelling need for or the legal authority for the U.S. Congress to pass laws "abridging the freedom of speech, or of the press." Third, the rights of the people to peaceably assemble and to petition the Government for a redress of grievances work together to protect our rights of self-government. Specifically, by prohibiting Congress from passing any law restricting our right to peaceably assemble the First Amendment recognizes our sovereign right to peaceably join together with whomsoever we please free of Congressional interference. Similarly, by prohibiting Congress from passing laws that would abridge our right to petition the Government for a redress of grievances, the First Amendment insures that the people, to whom our government officials are accountable, have an unrestricted right to make known their grievances. Together these clauses are designed to preserve the exercise of our popular sovereignty, facilitate the peaceful resolution of disputes, and protect against government tyranny. Without a doubt, the First Amendment was a triumph for the recognition of individual rights, but it only protects the individual from the power of the Congress of the United States. The citizens of the several states, the judiciary, and the state governments are the ones in whose hand the precious reigns of liberty lie. Our past failures are what gave the federal government the moral, if not the legal, authority to intervene. The future is in your hands, simply returning power to the States will not insure our freedoms, rather as Daniel Webster said: "God grants liberty only to those who love it, and are always ready to guard and defend it." May we strive to so attain. Note: "To fully know your individual rights I strongly recommend that you call your local Secretary of State's office and request a copy of your State constitution."
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