Tag Archives: Montesquieu

The increasing importance of the First Amendment (Part II)

American-Flag-and-ConstitutionIt is probably the shortest of the original ten amendments that were ratified as the Bill of Rights. Although its wording is fairly plain and simple, its meanings have been debated in the nation’s courthouses, school rooms, college classrooms, political debates, congressional hearings and churches nationwide since its adoption in 1791.  It is amazing that yet again, just a decade into the 21st century, we are nationally struggling to define what was meant by those 18th century authors who wrote 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.  

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Although I intended to briefly overview the First Amendment within my last post, I never was able to move beyond the “religious freedoms” clause of the Amendment and the reasons why it was deemed essential enough to be included. I have often thought that Benjamin Franklin’s  quote, “Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech.” The entire First Amendment is the ultimate protection of personal liberty that existed at the time it was written; its context and meaning must be maintained if we are to remain a nation of free peoples.

Congress shall make no law… abridging the freedom of speech, or of the press

The second freedom that the First Amendment deals with is at the heart of what Benjamin Franklin saw as the epitome of a free people – the right to freely exchange ideas.  From the time of the ascension of King George III as the sovereign of Great Britain, leaders in Parliament and the king believed that the British American colonists must be brought into the empire and integrated into proper British society.  Some historians argue that the Stamp Tax, designed to generate revenue by requiring all documents printed in the colonies to bear a stamp indicating that it was, indeed, a legally printed item.  This requirement included playing cards, legal documents, books, newspapers, and any other printed medium.  While it did generate some tax revenue, it is obvious that one of the side effects of the Stamp Act Tax was it could be used to differentiate between “legal” speech and “illegal” written speech.  It could be used to restrain or even curtail printed matter that was in opposition to the actions of the Crown and Parliament.  While under the guise of “freedom of expression,” the actual act of criminalizing the production of unauthorized publications would serve to censor the revolutionary thoughts of the day as their production would be greatly curtailed.  Without a single direct attack on the freedom of conscience, it would make written public dissent a crime to possess or to disseminate.

Earlier last week, I read an article that discusses the latest proposal by Senator Gloria Feinstein that would actually define who constitutes a journalist.  Within the definition of the proposed legislation, a journalist is defined, according to Watchdog.org as those who work as a “salaried employee, independent contractor, or agent of an entity that disseminates news or information,” though students working for news outlets would similarly be covered.  The definition seems to leave out the new tide of bloggers and citizen journalists who thrive on the Internet.  The reason that there has never been a definition of what the press was or who should be considered as a journalist was not because newspapers did not exist, but because the British press had been under the influence of the Crown and Parliament, unable to legally publish articles critical of the imperial governance of British America.  Indeed, most of the articles published demanded that the Crown extract more control over the colonies and supported the Townshend duties, the Intolerable Acts, and the various Navigation Acts as being proper for subjects of the empire.  Had the monarchy had its way, the political theory espoused by Jefferson, Samuel and John Adams, Paul Revere, and Thomas Paine would never have been allowed to publish and disseminate their revolutionary rhetoric throughout the colonies.  Now comes Senator Gloria Feinstein and she is more than willing to do the job that Parliament and King George would have wanted to do.

Freedom of speech and the press are related and cannot be separated from one another.  It is why, from a grammatical frame of reference, there is a solitary comma to separate the two and not a semi-colon.  There is a relationship between the two liberties; the first phrase of the First Amendment clearly indicates that Congress does not have the authority to define or restrict through legislation the very concepts of freedom of speech or the press.  The free flow of ideas is paramount to the preservation of our very understanding of liberty.  In the past thirty years Americans have watched this very concept come under increasing attack. Beginning with the Adams administration, the Alien and Sedition Acts were passed by overzealous Federalists in Congress and signed by President John Adams – at the heart of it was the desire to protect political power and to shield criticism of the Quasi-War with France.  Again, in World War I, freedom of speech and the press were attacked again when the Democrats in Congress and the Wilson administration passed and enacted the Sedition and Espionage Acts as a means to control the criticism of the president and the American war effort in Europe.

Continued on next page.

The increasing importance of the First Amendment


It is probably the shortest of the original ten amendments that were ratified as the Bill of Rights. Although its wording is fairly plain and simple, its meanings have been debated in the nation’s courthouses, school rooms, college classrooms, political debates, congressional hearings and churches nationwide since its adoption in 1791.  It is amazing that yet again, just a decade into the 21st century, we are nationally struggling to define what was meant by those 18th century authors who wrote 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.

As an American historian and someone genuinely fascinated with the political and social thoughts of the Enlightenment, I have always believed that the best answer to understanding the language of the First Amendment has been to understand the mindsets of the men that helped to write it. It must be noted that if one reads the Federalist Papers, a collection of writings by Publius (John Jay, James Madison, and Alexander Hamilton), it was clear why they objected to the concept of the amendments that would become the Bill of Rights.  In their minds, the natural rights of man, according to Enlightenment thoughts of John Locke, John Hobbs, Benjamin Franklin, Thomas Jefferson, and to some extent, Montesquieu, believed they were a part of the natural law handed down by the Creator.  These liberties, it was believed, should not have been defined by the Constitution because once rights become defined, they can then be further restricted to the strictest interpretation of that definition.

With that in mind, it was understood that many of the states would not ratify the newly written Constitution unless it did contain some guarantees of rights, privileges, and protections against the tyranny that, as former subjects to the British crown, the colonists had experienced.  The authors of these amendments tried to construct a framework that would place the burdens upon the national government and not on the individual citizen or by law abiding groups of citizens.  It was determined that the Bill of Rights would be considered as a binding covenant on the citizenry, the states, and the national government; following this model, each of the amendments deals with a specific function of government or those relationships between the national government, the people, and the states.

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof

 From the context of the time that this was written, it seems pretty common sense.  Since about the sixteenth century, and with the formation of the nation-states, Europe found itself embroiled in a series of wars with each other, and in many cases, with themselves as more began to reject the teachings of the Roman Catholic Church and formed new denominations.   The result at the time of the American Revolution is that within the nations of Europe, duty to the state, worship of God, salvation and grace, and even the sacraments of the church became tied to one’s duty to the state.  The state had replaced God as the purveyor of grace and eternal salvation; not only had this happened in Europe, but it had now begun to surface within the United States as Maryland, South Carolina, Virginia, and Delaware began to consider legislation to make the Anglican Church the state religion of those states.  Under the Articles of Confederation, Even as late as 1801, rumors circulated around the nation of several states petitioning the Congress to create a national church, as existed in the nations of Europe.

A group of men, known as the Danbury Baptists, sent a letter to President Thomas Jefferson on October 7, 1801, asking him to intervene or to use the powers of his office as President of the United States to protect the concept of religious liberty.  Specifically, they asked Jefferson:

Our sentiments are uniformly on the side of religious liberty–that religion is at all times and places a matter between God and individuals–that no man ought to suffer in name, person, or effects on account of his religious opinions–that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbors; But, sir, our constitution of government is not specific. Our ancient charter together with the law made coincident therewith, were adopted as the basis of our government, at the time of our revolution; and such had been our laws and usages, and such still are; that religion is considered as the first object of legislation; and therefore what religious privileges we enjoy (as a minor part of the state) we enjoy as favors granted, and not as inalienable rights; and these favors we receive at the expense of such degrading acknowledgements as are inconsistent with the rights of freemen. It is not to be wondered at therefore; if those who seek after power and gain under the pretense of government and religion should reproach their fellow men–should reproach their order magistrate, as a enemy of religion, law, and good order, because he will not, dare not, assume the prerogatives of Jehovah and make laws to govern the kingdom of Christ.(1)

While Jefferson’s response is well known, many Americans have never read the entire letter that inspired Jefferson to theorize about the “separation of church and state.” At the heart of the letter sent to him by the Danbury Baptists are several crucial fears that were addressed in the first part of the First Amendment – the concept of religious liberty.  As part of Enlightenment thought, it had become widely accepted that true religious liberty was when the individual was able to worship God according to the dictates of their own heart.  While the early national government did recognize the existence of God as a Supreme Being, it purposely did not define that God to be it accordance to the Christian definition, the Jewish definition, or even as an American Indian deity.  The Danbury Baptists acknowledge that government does have the right to legislate human behavior between individuals but that government did not have the right to legislate religious “privilege” because to do so would be an intrusion into the Kingdom of Christ – the Christian religion itself.

Continued on next page.

Mr. Obama, an unwilling public, and American history

obama-01For the last few weeks, since the chemical weapons attack in Syria, worldwide attention is now being paid to the developing situation.  Earlier last week, Mr. Obama’s planned coalition of nations he had hoped would back American efforts to contain the Assad regime has slowly began to crumble one nation at a time.  First, the British Parliament, on August 29th, 2013, made a historic vote that Great Britain has only had happen one other time and in 1956 – Parliament has rejected Prime Minister David Cameron’s push for military action in Syria.  Since then, it has become clear to the world that Germany, Italy, and other European Union and NATO member nations will also not support action in Syria.  According to Reuters, it now appears that France’s National Assembly quite possibly follow the example of the British Parliament.

Facing a difficult sell to both Democrats and Republicans within our own Congress, it appears that there is sufficient opposition to military intervention in Syria coming from both parties within the House of Representatives to prevent the passage of any bill designed to authorize the use of military force.  Even if enough support was farmed out of the Senate, without the concurrence of the House,  it would be unconstitutional for the president to conduct military action without the approval of both chambers.  On Friday afternoon, there was even discussion and doubt that there would be 60 senators that would vote to authorize the use of military force.  As I have been listening to the various talking heads, students and faculty members on campus, and in discussions with neighbors, there are several consistent reasons why military action in Syria does not have the support that the American public gave for the post-September 11, 2001 invasions of Iraq and Afghanistan.

There are only two cases in which war is just: first, in order to resist the aggression of an enemy, and second, in order to help an ally who has been attacked.

(1689 – 1755)

If there is any time that Montesquieu is appropriate, it is at this time where we face a serious decision about what our role in Syria should be.  Over the last six weeks, and before this latest chemical weapons attack, the world has witnessed the use of poisoned gas that have been deployed in smaller scale attacks.  Personally, given the amount of evidence this latest attack was by rebel forces, I believe it is safe to say that both sides – the governmental forces under Assad and the rebel forces – have used these weapons of mass destruction.  I believe that most Americans probably have similar feelings about who should be held ultimately responsible and accountable for the use of these horrendous weapons. I also believe it has many Americans asking themselves that if the government forces of Assad and/or the rebel forces would be willing to use this kind of weapon on their own countrymen, what is to prevent them from using the same weapons against U.S. forces in the region?

Americans are also war weary.  Since 2001, the nation has been fighting the forces of Islamic extremists in Iraq and Afghanistan. Mr. Bush did have the consent of Congress, both Republican and Democrat, both House and Senate for military actions and operations in both regions.  Mr. Bush further complied with the War Powers Act of 1973, a law that has been widely debated by both legal and constitutional scholars as to if it is actually constitutional.  Within the last few years, we have seen Mr. Obama ignore Congress and the requirements of the War Powers Act through a sustained air and cruise missile campaign in Libya.  It was well known even at that time that the American public was unwilling to support even a limited military campaign against any foreign power where a direct threat to the United States is not clearly visible.  With the current situation in Syria most Americans do see a human tragedy in the making, but it does not warrant the American public to see that tragedy as a direct threat to the United States.

Americans are hearing the same promises made about Syrian intervention as it has heard about other interventions that grew beyond a limited military action. Americans also were told that collateral damage would be avoided as much as possible to avoid civilian casualties.  Although these are noble gestures, and lofty goals, there has never been a war in the history of the world that did not have some form of collateral damage.  In a war between two nations or even two factions within a single nation, there will be collateral damage.  There will be the death and destruction of innocents.  General William Tecumseh Sherman (U.S.A.) said during the twilight of the Civil War that “war is hell.” It does not matter how many precision guided bombs you use, how many smart rockets you launch, there will always be collateral damage.  There is always a possibility of escalation and broadening of the limited military action into a wider conflict. Limited military actions and conditional wars are never victories but almost always met with either nothing really being permanently changed or a worsening situation.  The American public has learned this lesson all too well:  The Philippine War, the Korean War, Vietnam, Afghanistan, and the deteriorating situation in Iraq.

Continued on second page.