We will assume that the Congressman is saddened by this, and sees the importance of respecting the Bill of Rights and maintaining them in their entirety, but it is probable that there are members of Congress who, if they did not reject them entirely, would approve certain of those amendments only if major changes were made in them. Certain candidates for President, for instance, are not shy about their dislike of some of the Rights safeguarded by the Bill of Rights. But they aren’t the only ones – more than a few of our rights face challenges.
First off – let’s remember that the Bill of Rights – every one of them – protects the rights of the states or of the people against the power of the federal government. And note, as we read the Amendments, that each restricts the power of the central government in some way. And also note that the rights affirmed in the Bill of Rights are not “granted” by the government – the wording of each of the Amendments and of each of the rights affirmed thereby clearly shows those rights are considered to be “natural rights” and, in the words of the Declaration of Independence, “all Men are created equal, that they are endowed by their Creator with certain unalienable rights. . .” – Unalienable meaning “unable to be taken away or transferred.” Many Constitutions “grant” rights or privileges or “bestow” them in some fashion, but the Bill of Rights treats them as rights that we possess naturally, not as gifts of our government.
One could argue that the First Amendment has already undergone revision since it was approved in 1791. “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.” Its language reflects the justified fears the Founding Fathers had when a “State Religion” is “established.” The Founders were speaking of a national State Religion, which they had experienced, and did not want. Under a state religion, people from other religious denominations could be persecuted, or denied office, promotion, etc. Interestingly enough, with the exceptions of Virginia and Rhode Island, the other twelve states (Vermont had been admitted to the Union in 1791) either supported ministers through taxation and/or had certain religious tests to hold public office. These conditions were observed in those states until the 1820s, by when they had been removed. And the Founders passed many laws and conducted their business in many ways that prove they were not opposed to religion – in fact, promoted it - no matter how much they opposed establishing a National Church. For instance, under the Northwest Ordinance (which was introduced in Congress on the same day as the Bill of Rights), federal grants were allowed for religious schools – which prevailed until 1845.
Of course, modern Americans have had no direct experience of a state religion in their lifetimes, so the meaning of the word “establish” has shifted in the eyes of critics of religion to mean that the government should not do anything that promotes a belief or a faith in a Creator. This opposition has been extended to things such as Christmas displays in statehouses, public prayers, “In God We Trust” as a national motto, or sacred songs in public school concerts. Remember, though, the very next clause in the First Amendment says, “or prohibiting the free exercise thereof” which courts, through lawsuits, have been doing for a good long time. Progressive judges have not looked kindly upon any association between religion and government at any level. But not every time and not in every place. The Supreme Court recently affirmed that a World War One monument in Bladensburg, Maryland, can remain, even though it is in the shape of a Cross. The memorial, erected in 1925 to honor 49 residents of that area who gave their lives in the First World War, was challenged by the American Humanist Association, and that group won a case in the US Fourth Circuit court seeking the removal of the monument. That decision was appealed, and as noted, the US Supreme Court in a 7-2 decision, affirmed that the monument could remain. Most monuments of that type have been upheld in various court cases, but not all of them, and the fact that a Federal Circuit Court could issue a decision removing the monument is troublesome to those of us who do not see the monument as unconstitutional, but there are plenty of elected officials who might disagree with the Supreme Court on this matter.
Let’s look at the other clauses in the First Amendment – prohibiting Congress from “abridging the freedom of speech, or of the press” Several elected officials have sought to criminalize “climate deniers,” and the President has revoked the press credentials of a few reporters whom he does not like and who do not like him, either. Those free press rights might well be in jeopardy were the Amendment being drafted today. The “right of the people peaceably to assemble” has been challenged in various ways, and often is restricted on public streets, etc., but people typically are not prevented from gathering for whatever purpose they may, although conservative and liberal politicians have at various times wished that certain assemblies might be outlawed or restricted. However, Americans still enjoy those rights, and as the massive demonstrations in Hong Kong show, even authoritarian communist governments must tread lightly when it comes to restricting the people from assembling, protesting, or seeking redress. This shows that those are universal natural rights indeed. The power of those rights is so important in America that certain rioters and violent mobs have been tolerated, even though they are far from “peaceable.”
Next week, we will continue our review of the Bill of Rights with the one that is the least popular among the modern progressives – the Second Amendment, the right to keep and bear arms.