With 2020 promising to be not just another presidential election year but a political year with multiple challenges, we at the Messenger Mountain News believe it’s time to reacquaint ourselves with the Constitution of the United States, which 232 years later, remains the Supreme Law of the Land.
As a year-long series, we have asked our contributors and others to write articles that place the Constitution and its 27 Amendments in the context of challenges we face in 2020.
Some of the issues discussed then are still with us in different forms: trade, commerce, slavery, the right to bear arms, search and seizure, right to a trial by jury, excessive bail, the right to vote, the right for Congress to collect taxes, etc. Amendment 18, prohibiting manufacture and sale of liquor, was repealed in Amendment 21, and Amendment 27, ratified in 1992, limits congressional pay increases.
We start with the First Amendment but how the amendments made their way into the Constitution at all is more than a historical footnote.
The first ten amendments are the Bill of Rights and would not be there except for George Mason, a constitutional delegate from Virginia. Sometimes referred to as the “forgotten” Founding Father, George Mason of Virginia, wrote a document in 1776, the Virginia Declaration of Rights, that would later serve as the basis for the Bill of Rights, and influenced Thomas Jefferson’s introduction to the Declaration of Independence.
As a wealthy businessman, lawyer, and a reluctant public servant, Mason optimistically agreed to be a delegate to the Constitutional Convention in 1787. By the time the first draft was finished, he bitterly exclaimed that he “would sooner chop off his right hand than put it to the Constitution as it now stands.” James Madison, who believed at the time that a bill of rights was superfluous, would later persuade the House to enact amendments and was able to shepherd through 17 amendments in the early months of the new Congress; the list was later trimmed to 12 in the Senate.
Before the final vote on the Constitution on September 15, Edmund Randolph of Virginia proposed that amendments be made by the state conventions and then turned over to another general convention for consideration. He was joined by Mason, who was concerned that a bill of rights, ensuring individual liberties had not been made part of the Constitution, and Elbridge Gerry (of “gerrymandering fame) of Massachusetts. The three lonely allies were soundly rebuffed. Late in the afternoon the roll of the states was called on the Constitution, and from every delegation the word was “Aye.”
On September 17, 1787, all 12 state delegations approved the Constitution, 39 delegates of the 42 present signed it, and the Convention formally adjourned.
It wasn’t until December 15, 1791, that Virginia ratified the Bill of Rights, and 10 of the 12 proposed amendments become part of the U.S. Constitution.
THE FIRST AMENDMENT
Amendment I. 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.
When we began the Messenger Mountain News, we selected as our tagline “First Amendment Forever,” because, as journalists, we understand how essential it is to circulate information without government censorship and how vulnerable a free press is when speaking truth to power.
In 1735, John Peter Zenger, a journalist and publisher of the New York Weekly Journal was sued for libel after publishing critical stories about public officials. The case was overturned and established the right of the press to criticize public officials; it also showed that true statements are a valid defense when sued for libel. In 1791, the First Amendment was established and is the basis of the freedom of the press.
In 1971, during the Vietnam war, the decisive Supreme Court case, New York Times v. United States, the government, under President Nixon, tried to suppress publication of the Pentagon Papers. The Supreme Court upheld the New York Times’ First Amendment rights to speech.
Today, we have a president who calls the media “the enemy of the people.”
Protecting our rights, even when written into law, requires we, the people, to be ever vigilant.
— Flavia Potenza
First Amendment Challenges Abound
More than 230 years after it was approved, the First Amendment remains the world standard for civil rights, but it also faces constant challenges. During the 2018-2019 Supreme Court term there were several major cases involving First Amendment Rights.
In American Legion v. The American Humanist Association, the Court held that the Maryland-National Capital Park and Planning Commission of Prince George’s County, Maryland, had the right to maintain and display a large memorial cross on county property under the Establishment Clause of the First Amendment. The presence of the cross, part of a 1918 WW I memorial acquired by Prince George County in 1961, was challenged by the American Humanist Association in 2014, which alleged that the cross’s presence on public land and the commission’s maintenance of the memorial violate the First Amendment’s Establishment Clause.
The American Legion intervened to defend the Cross. The District Court granted summary judgment for the Commission and the American Legion, concluding that the cross satisfies both the test announced in earlier cases, Lemon v. Kurtzman, and Van Orden v. Perry.
In Iancu v. Brunetti, Respondent Erik Brunetti challenged the Patent and Trademark Office after being denied federal registration of the trademark “FUCT,” challenging the provisions of the Lanham Act, which prohibits registration of trademarks that “consist of, or comprise, immoral or scandalous matter.” Brunetti argued that the federal government had violated his First Amendment right to free speech. The Supreme court agreed.
In Rucho v. Common Cause, one of three recent Supreme Court cases on Gerrymandering, the Court sent the matter back to the states, holding that partisan gerrymandering claims, based on allegations that voting maps drawn by state legislatures violated First and Fourteenth Amendment rights, are not justiciable because they present a political question beyond the reach of the federal courts.
Upcoming Supreme Court cases include, on January 22, Espinoza v. Montana Dept. of Revenue, a First Amendment case revolving around whether a religious scholarship to a public school is constitutional.
On March 4, the Court will hear arguments in Medical Services v. Gee, an abortion clinic and its physicians challenging Louisiana’s law requiring abortion physicians to have admitting hospital privileges within 30 miles of their clinic.
In 2020, also look for first amendment cases involving the Affordable Care Act, and transgender rights to head to the Supreme Court.
There’s a good chance that AB5, California’s controversial new anti-freelance law that restricts the work of journalists, photographers, artists, musicians, independent truckers, and many other professions, will also be heading to the Supremes, challenged on the grounds that it violates the First Amendment.
—Suzanne Guldimann
THE BILL OF RIGHTS
On September 25, 1789, the First Congress of the United States proposed 12 amendments to the Constitution. Ten of the proposed 12 amendments were ratified by three-fourths of the state legislatures on December 15, 1791. The ratified Articles (Articles 3–12) constitute the first 10 amendments of the Constitution, or the U.S. Bill of Rights. In 1992, 203 years after it was proposed, Article 2 was ratified as the 27th Amendment to the Constitution. Article 1 was never ratified. The following text is a transcription of the first ten amendments to the Constitution in their original form.
Amendment I.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.
Amendment II. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Amendment III. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Amendment VII. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Amendment VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.