Freedom or religion, speech, press, petition & assembly were placed by James Madison in the Third Amendment of his list of twelve, only ten of which were ratified. When the first two were deleted, No. 3 became our First Amendment.
Where did Madison get these freedoms from?
Well one of the places he looked when assigned the task of drawing up a Bill of Rights was to the charters of the thirteen colonies, excuse me, states, since they'd won the American Revolution against Britain and had formed a Constitution in 1787. But it lacked a Bill of Rights protecting individuals. This drew serious objection from Virginia patriots James Mason, Patrick Henry, and others, so a deal was struck. They would support ratification of the Constitution provided a Bill of Rights were added. Madison got the job of cooking it up.
He went through the state charters, some of which had been redrawn in recent years to account for the fact that King George no longer ruled the New World roost. Madison found over a hundred individual rights embodied in the various charters and combined them into the ten we know as our Bill of Rights. These provide much of our so-called civil rights, to distinguish them from the few rights one enjoys under military law. The amendments having to do with criminal substance and procedure are included in the term civil rights. Those would include the Fourth, Fifth, Sixth, and Eighth Amendments. But even the First Amendment slops over into the criminal law.
It's very hard to keep rights separated once they start fermenting in the minds of the people, and their lawyers. Good people and good lawyers find ways of applying rights that came up in one context into another.
Why is this?
It must be because rights are the expression of ideas, which are somewhat more amorphous, perhaps even nebulous, when rattling around in our heads. Divorced from their original context, they seem well-suited to other, often surprising contexts. Suddenly a First Amendment right finds itself in a Fifth Amendment context. How did that happen? Someone thought of it and sold it where it counted, to a court which bought it. That's how the law develops.
Particularly with FA law, it's hard to keep it in its little box. You wouldn't want to. But because it doesn't seem to want to stay put, it's more challenging to organize for studying.
That got me to wondering where some of our FA ideas come from, freedom of religion, conscience, belief, expression, etc.
Lawyers are used to looking at cases as sources for law, but this doesn't go back far enough when sourcing FA law.
Before there were lawyers and cases in courts, there were conflicts and conquests. Emperors decided the fate of the conquered. Pharaoh decided to kill the first-born of his enslaved Hebrews for being, well, Hebrews. The decision is recounted in Exodus as the Passover story, celebrated every year for seven days for the past 5,000 plus years. No lawyers, no courts, no case-law, but still First Amendment.
Why?
Because the Egyptian was condemning a people for their beliefs. The Hebrews had a different God and a different tradition that made for a different identity. The Hebrews were no more likely to discard their identity and belief than Pharaoh was. The story has come down in the Old Testament, well-known to our Founding Fathers, as one of many examples of one people putting another down for their beliefs and identity, which is condemned in the Passover story.
The Purim story, in which Esther protects her people, again the ancient Hebrews, against a Persian emperor, repeats the theme of persecution of a people by a superior power for their beliefs and identity, but I don't want to read you the whole megillah, the name for the story, which is long and read annually in the temple, for those with patience.
The story of the Maccabees, who reconquer Jerusalem from the Greek general, Seleucis, a successor to Ptolemy, is commemorated in the Chanukah celebration.
On Masada, the mountain-top retreat, where besieged survivors commit suicide rather than submit to their conquerors and lose their identity as Jewish people. That's how important the idea of freedom of belief, conscience, and religious/ethnic identity are in our Western (and non-Western) traditions, as if you didn't know.
There were no lawyers, case-law, or courts involved in developing these traditions. Later, when there are lawyers, courts, and case-law, the lawyers, judges, parties, jurors and all connected realize the importance of these bible stories as moral guides and incorporate them into their arguments. When they win in court, we have the development of case-law base on this cultural norm tradition written by gospel writers and scribes.
Lawyers today look first to the case-law because it saves a lot of breath when citing authority. But lawyers also point to the resident boogie-men of our minds to remind courts not to go down certain roads, citing Hitler-Germany and Stalin-Russia when being particularly dramatic. We use single words like Holocaust to embody the individual tragedies of six million people.
We point to the American Revolution, slavery, the Civil War, Jim Crow, and the Civil Rights Revolution as shorthand to make a point of warning not to go down the wrong road again. The journey to the Holocaust began with but a single step.
Our job is to be on guard against taking that step, which may be difficult to see amidst the fear and loathing that typifies our conflicts. We have conflicting claims as to whether we're taking a step in the wrong direction towards Hell. So we do the best we can and try to avoid going too far.
Let me ask you whether setting up detention camps in Guantanamo, or our practice of 'extraordinary renditions,' or refusing to provide legitimate hearings to determine whether we've got the right terrorist suspect or someone with the same name, is going down the wrong road? A U.S. court has dismissed a lawsuit brought by Khaled Al-Masri, a German citizen of Lebanese descent, who was detained as a terrorist for five months, interrogated, and sodomized before being released by U.S. authorities allegedly for not having good information, the reason being that he was the wrong guy who had the misfortune of having the same name as a real suspected terrorist. Mistaken identity, in other words. The judge upheld a government claim that to let the case go forward would reveal secrets about our intelligence operations. Maybe they need to have the light of day shined upon them.
How are the American people, the alleged sovereigns over their own government, supposed to learn of bad deeds done in their name, such as torture, unless provided the information? By dismissing the case to preserve the secrets, the court has performed an act of prior restraint on the development of information through the legal discovery process which does not merely chill the dissemination of information, it freezes it, since the information never gets out.
Courts are in the business of sorting out mistaken identity. But if you don't bring the prisoner to court to let him say he's been a victim of mistaken identity, how are you going to find out. Don't we want to find out, or is the United States being led by people who don't want the U.S. to find out?
How does this help the U.S. maintain its status in the world as a nation that upholds certain principles of right not wrong?
Is this an example of taking steps down the wrong road towards our own Hell?
Meanwhile the United Nations anti-torture panel has condemned the U.S. practice of holding alleged terrorists indefinitely in the off-shore prison camp at Guantanamo Bay, Cuba, for harsh interrogation amounting to torture. Here's the report from the U.S. Voice of America.
Our final example today of wrong steps down the wrong road appears in this report from the Washington Post concernig the testimony of four-star USAF General Michael V. Hayden, in his confirmation hearings before the Senate Intelligence Committee, in which he states that the White House convinced him of the [dubious] legality of National Security Agency (NSA) massive warrantless eavesdropping, and data-mining inside the U.S. against American citizens, in the name of the GWOT. This is pronounced "Jee-wot" and refers to the alleged Global War on Terrorism.
The new presidential press agent, Mr. Snow, stated in an interview two days ago that since the president had declared war on terrorism, he therefore was within his inherent constitutional rights as commander-in-chief to authorize such massive eavesdropping programs without a warrant based on probable cause and individualized suspicion of wrongdoing as required by the Fourth Amendment.
This is what all the fuss is about today, because if a president can expand his powers by declaring war, why not declare war on anythig? We've declared war on drugs and poverty, so why not terrorism, or terrorists?
Or why not do something smart and not "declare war" on such things so that some future power grabbing president is not tempted to aggrandize control over the levers of power and influence at the expense of our freedom from government over-reaching. Skip the pretexts, in other words.
Eavesdropping invades privacy and chills belief, thought, speech, press, and the providing of information to the public on the public issue of whether the nation is being led down the road to perdition, a three-syllable word for Hell. This is an example of the core idea of one Amendment, the Fourth, intertwining with that of another, the First. Just because you happen to be thinking in terms of one Amendment does not mean that it is a good idea to forget about the others, as they all go back to ideas of what human dignity consists of and requires. The Bill of Rights, the Constitution as a whole, could equally well be described as the Foundation of Human Dignity, as that is what it is there to protect. And when the U.N. tells us to pull up our socks, maybe we should pay attention.
Jesus was persecuted for his beliefs. In the Christian tradition which has come to define the West, his crucifixion is the leading example of a First Amendment violation. The old religion from which Jesus came was being criticized and the old God supplanted with a new and different variant.
Later Christians are thrown to lions in the Roman Colosseum by pagan Emperors. Freedom of religion did not yet exist, but there were those who thought it should. By writing such accounts, the makers of the principle, the writers of the gospels, saw the conflict, saw the principle, and wrote it up so that it has come down to all who cared to see. They were First Amendment formulators, one might say with a reasonable degree of accuracy.
Martin Luther, in 1517, Wurtemburg, today's Germany, posted his 97 objections on the door of the cathedral. He was an Augustinian (Catholic) monk, asking that his religion cleanse itself of abuses that had long been tolerated. The movement that followed is called the Protestant Reformation.
At least a hundred years of sectarian fighting followed along dynastic and what later came to be called national lines. Protestant vs. Catholic, Protestant sect vs. Protestant sect, Christians against Jews and Muslims. Our Founders were quite familiar with this history, including the principle that, following the Peace of Augsberg, the religion of the people was the religion of the king.
New king, new religion. England had this problem following Henry VIII, Mary, & Elizabeth I. If you got a king who was soft on Catholocism, you had a revolution; see James II, forced out to bring in the Protestant William of Orange, to the outrage of Irish people everywhere.
One of the English men who saw through the turmoil and wrote his own analysis was John Locke, who had fled to Amsterdam, Holland, to avoid sure punishment for opposing the king on matters of faith. His writings influenced James Madison, Thomas Jefferson, and us.
There were cases in London, such as the one against William Penn, the Quaker founder of the Quaker State, not the motor oil, but Pennsylvania. The Five Bishops case, Bonham's case, Sir Walter Raleigh's coerced confession case, are others.
The Framers were of course familiar with the arrival of the Separatists at Plymouth in 1620 from Leiden, Holland after putting in at Plymouth, England.
And John Winthrop's Puritan colony of Massachusetts Bay, 1630, "the City on a Hill," (from the Matthew gospel) centered on Boston.
And Roger Williams's breaking away to found Rhode Island colony because of religious differences with Winthrop.
In the colonies, the sedition trial of John Peter Zenger, New York, 1730, for criticizing the Crown's governor Cosby, no known relation to Bill, for being a crook, resulted in the arrival on scene of the best lawyer in the colonies, Andrew Hamilton, no known relation to the later Alexander, from Philadelphia, giving rise to the term "Philadelphia lawyer," meaning the best at parsing the law. The jury acquitted Zenger for telling the truth, despite the English common law rule that the greater the truth, the greater the libel. Jury nullification meant that the Crown could no longer count on obtaining convictions for publishers who told the truth about matters of public interest, even against the government.
Do you see how one might say that the development of the notion of court-made case-law followed the historical accounts? And that bible writers and other writers preceded the arrival of the profession of law and lawyers as we know it today? The fact that we are late-comers to the freedom of conscience game does not mean that we are better than our forebears. We have our challenges, and they had theirs. We have the advantage of hindsight. They couldn't know what the future would bring any more than we can. We stand on the shoulders of giants. We should look back once in awhile to see whose shoulders we stand on. And maybe say a word of thanks to whichever god we have who might be in a postion to pass it along
Perhaps you can come up with examples from the Greek myths, or Homer, or the Athenian playwrights, illustrative of FA themes. Or Shakespeare
What other authors, dramatists are noted for dramatizing FA themes? Arthur Miller's "The Crucible," written to compare unfavorably the McCarthy Red-scare witch-hunt is a great example.
John Milton, Areopagitica.
"Inherit the Wind" about the conflict between Christian fundamentalists and secular skeptics in the Scopes "Monkey" trial, is another.
Further resources:
Revocation of the Edict of Nantes
The St. Bartholomew's Day Massacre of Protestants (Huguenots) by Catholics, in France, under Louis XIV, following the Revocation of the Edict of Nantes promulgated by his grandfather, Henry IV, who said "Paris is worth a Mass."