#1608 Ten Things about the First Amendment
2024-07-15 00:57:46
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Hello everyone, and welcome to this introduction to the podcast edition of this week's Listening to America. Lindsey Chervinsky, Ten Things About the Bill of Rights. Bill of Rights was ratified on December 15, 1792.. Dr. Chervinsky is an expert on the early national period and the founding generation.
As you know, we do these Ten Things programs. This one was on the First Amendment to the Constitution of the United States. Freedom of speech, freedom of the press, freedom of religion, freedom of assembly, freedom of petition to government for redress of grievances. Is it the most important amendment? Unclear, but it's certainly the first, and the question we started with is, is it the first because it's the most important, or is this just where it wound up?
I think it's some of each, actually. Anyway, it's a really fascinating conversation, and, as you probably know, the wall of separation between church and state, that's Jefferson's phrase, is being eroded these days. Louisiana just passed its Ten Commandments law, for example, and so on. So there is an attempt to quote-unquote, take back the country by bringing religion back into the classroom, back into public spaces, to break down Jefferson's wall of separation between church and state. And so stay tuned for all of that.
That's vitally important. And, of course, freedom of the press. The point I made was that we have a breathtaking freedom of the press, that you can almost say or write anything. If you incite directly to violence, you may get a call from the FBI, but almost anything goes, whether it's pornography or deep resentments or conspiracy theories or, you know, crazy notions about life on Jupiter, that we live in a time of almost unbelievable freedom of expression, and that's glorious. It's not without a dark side.
It has some dangers, but we should be thrilled that we live in such a country. So, Lindsay has finished her book on John Adams and the precedents that created America, and she's going on a book tour, and so we're going to try to get her here to North Dakota, but we also are going to do a joint program in the same zip code, we'll be in the same space, in which she and I will invite people who are friends of the program, or friends to Lindsay, friends to me, to, if they buy the book, they'll get a 30% discount on her book. If you buy the book, she will sign it on a special book plate that she has designed, and we'll have a Zoom meeting where five of you, or 5,000 of you, unlikely to be either one of those, but somewhere in between, will join us, but you'll have to be able to prove that you bought the book, so we'll send you some sort of an entrance code, I don't know how it works, but you know what I'm talking about. And so we are going to do that joint program in September, probably on the 11th, 12th, or 13th of September, she's probably going to come to North Dakota, I hope so, and we'll do a couple of things here, and then she's coming to Vail in March, I do these programs four times a year for the Vail Symposium, in Vail, Colorado, one of the great ski resorts of the world, and great summer recreation too, I was just there to do a program, several programs, in fact, one of them was a conversation with Danielle Seawalker, a Lakota artist and activist and author, and that was an amazing evening, so that was one of the two programs, then we do programs on controversial issues, this time was on third parties, and, of course, the No Labels. third party candidacy did not actually happen this time, but third parties are historically important, and even though third party candidates, including Theodore Roosevelt, never win, they do shape the discourse, they do affect the trajectory of party platforms, they have an effect, and once in a while they're a spoiler, as surely Ralph Nader was in 2000,, when he got 80,000 votes in Florida, and most of those votes, had he dropped out, as everyone begged him to do on the Democrat side, most of those votes would have gone to Al Gore, so Al Gore would have been the President of the United States, not George W.
Bush, if Nader had pulled out, presumably, you can never ultimately, finally know, but that seems to be the case, I do these controversial programs, programs on controversial subjects four times per annum, the next one is on what happened to sports in America, that's coming in August, and in August I'm also in Vail doing The Trial of Thomas Jefferson, which I do with an extraordinary comic man from Norfolk, who's a friend of mine, and then I'm doing a conversation with the great Patricia Limerick of the University of Colorado on Orwell's 1984, so if you go to the Vail Symposium website, you'll see all of that, so we're looking forward, and we just were talking about this today, we're hoping to do a series of programs, so if you live in a community which might want to host a joint appearance by Lindsay Chervinsky and her whipping boy, Clay Jenkinson, we could make that happen, we'd love to travel together on a number of venues to talk about history, but particularly with a focus on her book and John Adams, I can't wait to read it. She has spent the week recording her book, and recording a book, I've done this a number of times, it is a real commitment, because just if you want to see how, pick up any book, pick up Jane Austen's Pride and Prejudice, and turn a tape recorder on, or your recording memo on your phone, and read the first three pages, and see how many times you trip, how many mistakes you make, how many times you put the inflection on the wrong word, how many times you miss the rhythm of the sentence, it's a long, long, tedious, satisfying, but tedious process, and so she's just finishing that, so her book will be available on Audible, there's a website, if you just type in Lindsay Chervinsky book plate, or go to Lindsay's website, or go to our website, you can get all of the details, anyway, it's exciting, and the First Amendment is fundamental to American life, and it's under fire, you know, and a lot of test cases, you know, can the President of the United States encourage people to assail Congress on January 6th, is that a violation of law, should it be protected as a First Amendment? question, a gag order in a trial, the Ten Commandments on every school building and wall in the state of Louisiana, a crash on a courthouse lawn, you know, we're moving into a period where there's a reaction and a desire to re-Christianize American public life, Jefferson would be appalled, I mean, absolutely, overwhelmingly appalled that this could ever happen, and he would say, you obviously don't know your history, if you think you want to chip away at the wall of separation between church and state, but that's where we are, and we have to accept it, anyway, it's a very exciting time here at Listening to America, and, as I need to say now, if you really help, because this is an expensive set of journeys, and I think it's doing really important work, please go to our friend's site at Facebook, it's Listening to America Facebook site, or my own Facebook site, LTAmerica is our main website, and you'll see we now have a huge quantity of content there, including my own hand-drawn cartoons of my travels, so lots and lots going on, but now let's go to the program, 10 things about the First Amendment to the Constitution of the United States. Thanks, everyone.
Hello, everyone, and welcome to this special edition of Listening to America, I'm Clay Jenkinson, sitting across from me is the author, historian, Dr. Lindsay Chervinsky. Today, Lindsay, 10 things about the First Amendment to the Constitution of the United States, so welcome.
I'm very much looking forward to this conversation. I think that it is my, probably my favorite amendment, although I may have said that about the 14th as well, but nonetheless, I think the first is probably my favorite, if I were to rank them, so I think that this is an excellent and timely and important conversation.
So I think, as we go forward, we should try to do not all of them necessarily, but a bunch of them, the Fourth Amendment, the Ninth Amendment, the Fourteenth Amendment, you know, and so on, dig in.
You left off a pretty contentious one. there in the middle. You mean number two?
I was going to say, yeah, people are going to love that one.
Well, I think it's important. This is what historians bring to it. We can contextualize it at least to a certain degree and try to rescue it from its absolutism. I mean, I live in a red state and I have literally met people here on the Great Plains, Lindsay, who say there's only the Second Amendment.
I think James Madison would have a few things to say about that.
They wouldn't go to the wall for the Fourth Amendment. They wouldn't go to the wall for the Seventh Amendment, but they say they would go to the wall with an AR-15 for the Second Amendment.
So I should acknowledge and say that I did not grow up in much of a gun family. My brothers did teach me how to shoot a BB gun, but that's pretty much the extent of it. And I cry when, you know, baby birds fall out of the nest, so I'm probably not going to be going hunting anytime soon. So I will acknowledge that these are my biases. to just start up front.
I have no problem with responsible gun ownership. I really don't. I think that there are a lot of ways to be very responsible and, you know, safe in all of this. But to be honest, I don't understand why our sense of rationalism departs. when we talk about that amendment.
I mean, we have licenses to drive cars. We, you know, we have to get passports to leave the country. Why is it so hard to wait 36 hours? I just, I don't understand the lack of rationalism on this particular amendment. But I have sidetracked us very substantially.
To be continued on another round of Listening to America, where we dig in on the Second Amendment, its historical background, and its applications today, and recent Supreme Court decisions and so on. But let me just remind everybody of the First Amendment, 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. So there are four areas there. One is freedom of expression. One is freedom of religion.
Another is freedom of assembly, the right to protest. And the other is the freedom to address government with your petitions of grievances. So kind of an antiquated notion now. But I think, for example, the effective bar on petitions about slavery during the first half of the 19th century, where Congress somehow agreed in some sense that petitions calling the attention of government to the abomination of slavery were tabled, were not even allowed to be introduced. And your man, J.Q.
Adams, was an important person in finally shattering that agreement.
I think you're completely right. I think it very much went against, certainly, the spirit of the First Amendment, if not the text strictly. I think a couple of background things are worth highlighting about not just the First Amendment, but the amendments more broadly. The way in which we cherish the amendments is something that did not start, I think, on day one. I think it'd be fair to say that the Bill of Rights, once they were passed and they were ratified, of course, they were part of the Constitution and they were part of the legal structure of the nation.
But I don't know that people clung to them in the way that we cling to them. And there were a lot of examples of a lot of things, like the Submission Act passed in 1798, that we would immediately say that absolutely violates the First Amendment. So I think our understanding, the enforcement, the regular call to the amendments have evolved over time. The second thing that I would like to draw attention to is it says Congress shall make no law. It does not say everyone shall make no law, or no business can, or no company or no organization.
So a lot of times when people talk about the freedom of speech, they conflate what is a sort of societal norm that we have generally agreed upon about the right to have freedom of speech with what is actually legally protected. And that's that the federal government cannot prevent you from doing these things. It does not apply to private businesses. It does not apply to private organizations. So just kind of had to get that little disclaimer out there, because I think sometimes there's confusion on that.
The Constitution was written by 55 white men in Philadelphia in 1787, ratified state by state in 1788, some in 1787, but the rest in 1788.
. I think Rhode Island was the only state that refused to ratify at that point.
Fun fact, when Washington did his initial national tour, he refused to go to Rhode Island until they ratified it because he was the master of petty, which I just think is very funny.
And then he took Jefferson and Hamilton with him on a boat and Jefferson got seasick. And Jefferson was a not a good sea traveler. But when Washington finally went to welcome Rhode Island in, Jefferson went with him as Secretary of State.
That's pretty funny.
I just love the idea of the three of them on a boat. All right. So.
Sounds like the start of a really good joke, like Washington, Jefferson and Hamilton walk.
into a bar.
Yeah.
But you pointed to something very important, Lindsay, that the Constitution was written without a bill of rights. Many people argued strenuously that there must be a charter of the rights of man. And Jefferson went so far as to say to Madison, a constitution without a bill of rights is void. The people have to have these guarantees. This is essential in any document.
And so Madison wasn't really convinced. Remember, he called it a parchment guarantee. And maybe we bring trouble on ourselves if we start to articulate. Maybe these things are just so deeply embedded in the norms and human conduct that we would only endanger them by trying to articulate them. Jefferson said, no, no.
You want a text. You want the actual text. And, of course, it wasn't alone with Jefferson. The Anti-Federalists were pushing for this all over the country. Madison then does it.
Gathers up some 80 or 90 possible amendments from around the country, whittled them down, rationalized them, put them in order, 18 go to Congress, 12 get accepted, 10 pass.
Yes. There were a few objections to a bill of rights once the Constitution had already been ratified. And some of them were practical, like, how do you pick which ones? And there was a concern that if you pick certain ones, were you saying that the other ones weren't important? That, I think, is a fair question.
Sometimes we wonder, like, how do you prioritize which rights are more important than others? The second question was, there was the argument that the government was relatively limited in scope and the way that the document was crafted, it was providing certain powers, but everything else was supposed to be reserved. That was Hamilton's argument, especially for passage. A lot of people rightly assumed that the language in the Constitution can be quite fuzzy, and maybe that's not a very good guarantee. And then there was the third question is of Jefferson wanted the Bill of Rights before ratification.
A lot of people wanted the Bill of Rights before ratification. So do you have another convention, which Madison rightly understood would be a total catastrophe, and they would never get anything passed. and it was kind of like a one and done deal.
But Jefferson sort of thought, oh, nice, start. Go back to the drawing board. You'll meet again. You'll figure this out. I mean, he clearly was.
Says the person who wasn't there.
He's in Paris and he has no idea what an ordeal it was to get the Constitution that we got. So you're laying out these reasons, and the Ninth Amendment addresses one of them when it says this is not. this is not meant to be an absolutely exhaustive list. Don't just think if it's not here, it doesn't exist. But that was the argument that that you leave something out and then you wind up really regretting that it's it's.
it doesn't seem to be enshrined in our charter.
Yeah, absolutely. And so what happened was, you know, several states sort of agreed to ratify but put forth recommendations for amendments. And Federalists kind of made backroom deals, saying we will take this seriously once we are in Congress. And Madison in particular, when he was campaigning for his congressional seat after the ratification had been secured, said I will do this once I'm in Congress, but I will not do it before ratification. And he got to Congress and a lot of people suggest wanted to kind of push it off and say, you know, we have a lot of other things to consider.
And hey, we were ratified. We don't? we don't need to do it now.
Yeah. Yeah. And to be fair, I mean, like they were crafting the judicial branch and coming up with the department, the executive department. So it's not like they were twiddling their thumbs. But Madison said, no, no, no.
We promise we're doing it this summer. And I still I know I've said this before on the show, but I still maintain in one session they created the judicial branch, they created the executive department and they passed the Bill of Rights. No, Congress will ever get close to being halfway near that productive ever again.
Exactly. And yet and yet, many historians believe that the Bill of Rights was seen kind of as a sop to anti-Federalist feeling and that we do this to fulfill a promise. And it's not really that important. And so some historians say it wasn't debated very rigorously. If it had been debated rigorously, we probably wouldn't have gotten it in the bold form that we have it.
It was sort of passed as boilerplate, as a feel good thing to assuage anti-Federalist anxieties, but that they didn't sit down and say, whoa, what do we mean by that? Let's really wrestle with establishment. What? what is a prohibition? If Congress can't prohibit, can the state of Kentucky prohibit?
A lot of this debate wound up having to occur later in the Supreme Court or in the court system. But every word that that you talked about at the beginning, Congress shall make no law respecting an establishment of religion. Congress got to parse that. No law. Boy, that's a strong, strong statement.
Is an establishment to put the Ten Commandments on the courthouse lawn? These are all really, really, really complex questions. And Congress didn't specify it. There's a there's a real brevity to the Bill of Rights, and we've been sort of trying to figure it out ever since. And it's not over yet, because, as you saw just in the last week, Louisiana passed a law saying that every school must have a clear and a good legible font, it said, of the Ten Commandments.
And I think a Jeffersonian would say that's an establishment because you're not putting up Quranic verses. You're not putting up Buddhist verses. You're not putting up Hindu or Native American verses. You are now de facto establishing that the official religion of the United States is Christian or Judeo-Christian. That's exactly what we wanted to prevent.
Yes. And it's especially important. It's one thing if it is a voluntary space, but children are required to go to school. They have to be there. And so that is really the problem.
If it's when it's a compulsory space and you cannot choose to avoid that type of language, then it is forcing the establishment. And I have stopped predicting things with the Supreme Court because I think that's a dangerous game. But I don't see in any way, reading the First Amendment, or even all of the existing jurisprudence on how the First Amendment had previously been decided by the Supreme Court, how this could possibly fail.
In other words, you're saying if we were living in the country we thought we were living in, this would be slam dunk. That is unconstitutional. It can't be allowed. There's enormous precedent for this, dating back decades, and that the idea of trying to sneak one through in the state of Louisiana would be struck down instantly and firmly. Yes.
And that's not where we are. All right. We're talking about the Bill of Rights and particularly the first of them, the First Amendment. I'm talking with the famous historian, Dr. Lindsay Chervinsky, who just read her book.
Her book will be available on audio. And so she's delighted and exhausted. We'll take a short break. When we come back, I want to ask you a question about sequence. You're listening to a special edition of Listening to America.
Welcome back to Listening to America. I'm with Dr. Lindsay Chervinsky, and our subject today is 10 things about the First Amendment to the Constitution. So we've been talking a little bit about the background and how Madison took it very seriously, but Congress was sort of less interested. They were doing things that they regarded as more important, like creating the judicial branch of government, building an executive branch.
They were, in a sense, doing finishing work on the Constitution during the first Congress of the United States. And that's vitally important. But Madison, true to his promise, addressed the question of a Bill of Rights and shaped the Bill of Rights. And Congress adopted them. And on December 15th, 1792, they were ratified.
And so now they were officially a part of the Constitution of the United States. Now, our man, Jefferson, or my man, Jefferson, made a terrible mistake. Lindsay, he said to Madison, they shouldn't be an afterthought. Let's corkscrew them right back into the document itself. That would have been a mistake, wouldn't it?
Because some of the greatness of the Bill of Rights is its status as a companion piece.
Yeah, I think so. And I think that's certainly that's how history has unfolded. He was not the only one that thought that if you added them at the end, they would actually be treated as an afterthought. And I think maybe initially he was correct to my previous points about how. initially I don't think that they necessarily treated them with the same seriousness that we did.
And so a lot of people suggest that they should be folded back in. And I think that they recognize that that would be very messy and very complicated. And OK, if you do that for these 10 amendments, but then what about the future and how do you fix it? And what's interesting is, if you go and look at the National Archives today, they have the Constitution up on the website. And if you go to the 12th Amendment, which changes the text of how the president and the vice president are selected, they will show you in the real font or in the original text, like a hyperlink bolded version of it.
And then you can see the next. So like, they've kind of incorporated it. But I do think that the idea that they are listed separately has come to give them more reverence than they would have had if they had just been tacked into the original.
Agreed. So question number one, first point of our 10 points on this, is there any significance to the fact that it's first? If this amendment had been sixth or ninth, or eighth or fourth, is this the big one? Is this the one that matters most of all in the minds of the people who produced it?
Well, it's hard to say, because I don't think that they intended to list them in order of importance. I don't think that they're listed of like. this is the most important, and this is the second most important. and third most important, because, you know, some of the most pressing concerns about quartering troops, which had been a very present thing during the revolution, are listed farther down. So I don't think that they're listed in order of importance.
And yet. And yet? And yet.
You'd be sorry if it were number six.
I would be. And I do think that they probably, while they did not list the others in order, I do think that the first contains the ones that they were most concerned about in terms of the cherished freedoms. And they're also the ones that were parallel those or resemble those in a lot of the Declaration of Rights by George Mason and the Virginia Statute of Rights.
Jefferson's view, and not not addressing the the First Amendment per se, but his view was all other rights stem from these basic rights, freedom of conscience, freedom of expression. This is sine qua non, without which none, if you don't have this game over, that this is the essential business of what it is to be a republic of the people, by the people and for the people.
Yes, I totally agree with that. And if you look at the freedoms, they are, in theory, what distinguish in a lot of ways a democracy or a republic from a more monarchical system in which you don't have a lot of these rights, or at least you didn't in a lot of the monarchies of the 18th century.
And it should be said, right, that in this day, in 2024,, there are many, many, many countries in the world where there is not freedom of expression, freedom to petition, freedom of religion, freedom of assembly. Tehran and Iran, for example, may pay lip service to those sorts of things, but they don't really mean it in that nation. And so we sometimes take for granted how fortunate we are, that central to American life is a bill of rights.
Yes. And we should point out, and I'm glad you chose Iran because Iran is technically a republic, but you can have illiberal democracies, you can have illiberal republics in which these freedoms are not protected and not guaranteed. And I do think that's an important distinction.
The fact that it's number one is not necessarily intentional, but we're glad it's there. Is that our view?
I think it was kind of intentional, but it's like ish.
Yeah, but not fully.
Not fully.
So who wrote it? Answer? Madison, essentially. Not alone. I mean, he was gathering proposals from around the country.
He was gathering proposals. There was a committee that reviewed a lot of the proposals and put forth a report. But he was the force pushing for this, both in Congress to create the committee and then in the committee to create the report. And if you read it, it reads like Madison's text. Madison was a brilliant writer and he was very thoughtful about constitutional matters.
And it reads like that.
And concise, too. So, third point is sort of been semi-answered, you know, how much debate was there? And the studies I've read of the Bill of Rights is not much. But do you think there was eye rolling? Do you think, like members of Congress are, like, here's Madison, we got to do this.
It's taken up time. OK, you know, he made this promise. Is there some sense of that? Like, just let's just throw the sop up to the people and get it over with.
Yeah, I think so. I was talking with a great writer and someone who's worked in politics for a very long time the other day, and he said, I've always loved James Madison because I feel like he was just a really great Paul. And I think that that's obviously, like, you know, 20th century language. But he was. he was so good behind the scenes.
And I think that these amendments getting through Congress as quickly as they did and them just being like, OK, fine, let's just do it so that he could stop talking about it was, I think, a testament to his ability to get them to do it and how powerful he was, especially in that first session of the first federal Congress. And that's why there wasn't a whole lot of debate. And also then how quickly the states ratified them. It's really quite impressive.
Freedom of expression. It's essentially unlimited. You could today write that the president of the United States is flirting with the Chinese communist government to betray Taiwan. And you wouldn't go to prison over this. There's almost nothing that you couldn't write or say today that would get you into trouble.
We have, we have, an enormous freedom of expression in the United States. I'm sometimes shocked by it.
Yes. Although let me draw a couple of distinctions there. So there are a couple of limitations. So there have been limits on speech that is designed to provoke violence or to to provoke danger. So the famous example is you can't shout fire at a crowd feeder.
That was a limitation that was recognized by the Supreme Court. that, interestingly, that limitation did not exist in the 1790s. And so I think it is one of the nuances. And we're talking about the Sedition Bill of the 1790s that they could print language that encouraged violence. And there was nothing really to be done against it.
So that's one very important limitation. They, the courts, have drawn certain exceptions and rules around whether you are a public figure or a private figure. So if you are a public figure, if you are a politician, if you are a movie star, libel or slander, which are written in and speaking, you know, criticisms or even lies against a public figure are very, very, very hard to prosecute, because there's a much higher bar if you are engaging in public activity. If you are a private citizen, then that's a little bit different. The last piece that I think is important is there is a distinction between legal action and social repercussion.
And this is something that I think in the 21st century, we have a hard time necessarily drawing distinctions between. The government cannot arrest you for saying those things. That doesn't mean that people have to like you for that. That doesn't mean that there aren't social consequences. There is no guaranteed right to social acceptance for saying despicable things.
So just an important caveat.
But, as you know, with the explosion of publication through the Internet, a very large body of very wild things gets published every day. And I think that any of the founding fathers looking at this, Jefferson, Madison, Hamilton, Washington, John Marshall, Abigail Adams, I think all of them would say, you've taken this pretty far, America. That's why you allow a lot of stuff.
Yeah, they didn't really think that everyone should share all of their thoughts. A lot of people share a lot of their thoughts.
I don't think that they really could have anticipated the breathtaking freedom of expression that we share in the United States.
No. And I mean, to be fair, they had a lot of social norms that prohibited a lot of the expression. And in some ways, those things can actually be more powerful. Social expectation and social norms for behavior. And so our behavior has changed and our expectations have changed in a lot of ways.
And I think our interpretation of the broadness of the First Amendment has certainly changed. But I think in some ways they would be more surprised. what we're OK with, as opposed to what we've decided is legal.
So you're distinguishing social behavior from legal tests and saying that their biggest concern would be just like what a Bulgarian crazy ass nation we've become. Yes. And that the First Amendment is not a very good tool for reining that in.
Let's say yes, which is not to say that in all things they're right. for my, you know, my favorite example is they would want to know why I was wearing pants. And so like. there are things about their social expectations that obviously we would not find acceptable, but probably a little bit more restrained on behalf of society. We've probably not heard.
My only point in all of this is that I'm so impressed with the freedom that Americans have. I think we take it for granted. I don't think we have any idea how much lower those tests are in some other societies. And I'm not just talking about Iran and Bulgaria. There's a breathtaking freedom in America.
And you see it. And it troubles us, of course, because it's just there's. if Alex Jones says that the Sandy Hook killings were a CIA or faked, he had to pay the price. He's now going to pay millions, hundreds of millions of dollars, if they can get it out of him, because he was defaming those families. But the fact that it's even a test tells you where we are.
The conspiracy theories, Marjorie, Taylor Greene saying that what happened in the Las Vegas shooting was aliens or it's kind of an anything goes culture. All right. You change the subject here to another on our list. It's so often said to me, we're a Christian nation. So prayer in schools or the Ten Commandments or preacher at baccalaureate, that's America.
The founding fathers wanted us to be a Judeo-Christian nation. And so get over all this wall of separation stuff. So what's the myth there?
My immediate answer, which is not very nuanced. So the Judeo-Christian concept is one that was a creation of the second half of the 20th century in recognition that anti-Semitism was distasteful. There was a lot of anti-Semitism in the 18th century. They would have not considered it a Judeo-Christian nation. Most of the quote unquote founders or the delegates at the Constitutional Convention were Christian in varying degrees.
I believe some were Catholic, and that was a very important distinction, especially at the time. Some were nominally Christian, but hadn't stepped foot in a church in decades. They all believed that religion was a private experience. Now, it's not something that you necessarily only did by yourself. Of course, you went to church and you had marriages and you had baptisms.
But when I say private, I mean it was not a government activity. And this was a very important part of the revolution, because the Church of England was the church that was headed by the King of England. And a lot of people in certain, especially in certain colonies, were mandated to attend or mandated to pay your taxes to the church. And they didn't really like that, because not everyone wanted to be Anglican or Episcopal at the time. If you wanted, so, if you were Baptist, if you were Methodist, if you were Puritan or Congregationalist or etc., etc., etc., you didn't want to have to go to this one church or pay tithes to this one church.
So from the very beginning, they wanted religious church activity to be something that was separate from the government, which is why it is in the First Amendment. That doesn't mean you can't go to church. It doesn't mean you can't have values. It doesn't mean that you can't have ethics based on your own religious activities. And it doesn't mean that, yes, it is true that a lot of Americans have been Christian for most of history, but there were Jewish people, there were Muslim people, there were Hindu people.
There were people who practiced all sorts of faiths from the African tradition, from the very beginning. in the United States. It has never been a Christian nation. It's never been a Judeo-Christian nation. It's just wrong.
So two things there. One is, you're saying that the phrase Judeo-Christian is sort of a latecomer to combat antisemitism. Before that, it would have just been Christian. But then this became a kind of a social norm in the way we talk about this, and that that's a late development in American history, 20th century development. Second thing is that we may be demographically, historically, a largely Christian people, but the founders were firm that we would be a secular government.
And so the word God does not appear in the Constitution. The words Jesus or Christ do not appear. Not even Providence, not even Jefferson's creator. So the Constitution is absolutely silent on the question of religion until you get to the First Amendment, in which it sets a very high standard for any erosion of that secularity.
One of the key things that they had on their mind was the concept of a religious text, because it used to be in England and in Britain and in a lot of the colonies that if you were a certain type of religion, you could not hold office. They explicitly rejected that type of religious text because they wanted anyone to be able to hold office. They wanted any white man to be able to hold office, regardless of their religion, because there were a lot of things that they were willing to prevent people from holding office for. So, for example, if you were profligate with your property, or if you were a person of color, or if you were a woman, but religion was not one of them.
How influential has Thomas Jefferson been in all of this? Because, as you know, this was the bonding moment between Jefferson and Madison. This is how they first decided they were going to partner, because they both believed very strongly in this. And Jefferson then says on his tombstone that the Virginia Statute for Religious Liberty is one of the three things for which he most wants to be remembered. And I think it's, frankly, his greatest hit.
He then, in 1802,, coins the phrase wall of separation between church and state, which in the 20th century gets incorporated into judicial decisions about the First Amendment. So I think you have to say, am I wrong, that Jefferson is exceedingly important in this discussion and maybe the most important of the founding fathers of this discussion?
Certainly, I think. when it comes to the First Amendment, he is by far the most influential. I think his pushing for amendments was something that Madison took seriously, and he trusted and respected Jefferson's input. They had worked together on various different statutes at the Virginia level, including, of course, the Virginia Statute of Religious Freedom, which I agree is, I think, his greatest hit. They had both been influenced by George Mason, but they had sort of been influenced by him together as a communal activity.
As you said, of course, Jefferson's ideas about this have influenced jurisprudence, which is huge, because there are a number of documents that have influenced jurisprudence that are not legal documents. So, for example, the Federalist Papers are often used to help guide how we should interpret things, which I find to be ridiculous, because the Federalist Papers are brilliant, but they were propaganda. So I don't know why we treat them as though they are gospel.
Heresy, heresy, heresy, heresy.
I mean, they're very powerful arguments, but they're an argument.
They're op-ed pieces. They're op-ed pieces.
Yes, they're not the Constitution. No, I think Jefferson was hugely important on this. And I mean, his ideas on this are so fundamental, both because he believed them so personally, also because he came to be associated with those things. So the Jeffersonian ideal of freedom of speech and freedom of religion is one that has a very powerful force.
Two things about that before we go to break. Number one, the Virginia Statute for Religious Liberty was passed into law in 1784.. Jefferson was out of the country. by now. Madison is the one, the Paul, as you called him, the political activist, the person who really knows where the levers of power work, who has the ability to, in the back room, to persuade people to attach amendments or to prevent them.
And he got the Virginia Statute through the Virginia House of Delegates. Jefferson, as with so many other things about Jefferson, was sort of, I did that and I guess I move on now, because he didn't have a lot of political staying power. I mean, every rational person will believe it, won't they? That's very much an important part of all this. And then, secondly, Patrick Henry does not come off well in this discussion.
He did not go along with the Virginia Statute for Religious Liberty. He said, you need some sort of restraining social glue. Maybe you divvy the money up amongst different denominations, but there should be state sponsorship of Christian behavior.
Yes. I think, you know, Adams. at one point, he has this quote in his presidency where he says the Constitution cannot survive without a moral and religious people. And he wasn't saying that everyone needed to be churchgoing or needed to be Christian. But I think his ideas on the subject were not, I think, as extreme as Patrick Henry's.
But what he was saying was that you need to have a shared code of values in a society. If the society is going to work, you need to have a shared code of values. And especially in a republic where it requires civilian buy-in in order to work and participation, and you need, you know, citizens to uphold these institutions. They have to agree on a set of things. And oftentimes religion is an easy stand in for that code of values or has been the dominant organizational principle for a lot of other societies.
And I think, in terms of Patrick Henry and to a little bit, I think, John Adams, I think he began to shift away from that. It showed, I think, a lack of an imagination that you needed religion in order to have that code of values. Whereas I would argue you could have a sort of democratic, civic virtue set of values that don't really have anything to do with religion and instead have everything to do with how society operates, how you treat one another, what you respect and don't respect.
I like what you said. I want to pick that conversation up again at the other side of our break, talking to Dr. Lindsey Chervinsky. Ten things about the First Amendment. We'll be back in just a moment.
Welcome back to Listening to America, Dr. Lindsey Chervinsky, the First Amendment to the Bill of Rights. We were talking about what restrains human behavior. And it's easy to kind of be sarcastic and sneer at the people who are worried about this, but I don't think that's right. I think, I think John Adams had a point, which is humans are not always trustworthy.
We have to inculcate moral behavior and civic virtue. They don't just happen. That religion has been one delivery system for this. Thou shalt not steal. Thou shalt not covet thy neighbor's wife, et cetera.
That the Judeo-Christian tradition has been one formulation of a set of moral codes that are so important that they are part of a sacred text and people have to at least acknowledge their validity. Jefferson says, no, no, no, no. We have a moral sense. Everyone's born with one. It's like your arm, your leg, your eyes, your nose.
These are organs that function and everyone has one. And although we need to train it a little and strengthen it, it's there. People know when they're doing wrong. If I dropped a hundred dollar bill on the floor in a restaurant where you and I were, if someone comes upon it, they should, they know I can't just pocket that. They know.
I should try to find out who that belongs to, and it would be wrong to take it. Jefferson's view is we always know what is wrong. We still do it, but we know. And so his view was you don't need the Judeo-Christian tradition for this, because it's embedded. It's embedded.
I don't think John Adams would agree to that. I think he would say maybe some of this, but it really you need institutional support.
Well, I don't know if he felt that you needed institutional support. I think that he felt like left to their own devices. Humans tended to be, whereas I think Jefferson had a much more positive, optimistic outlook about the base of human nature. I think he didn't meet humans, but that's fine.
My formulation of that is always Adams saying to Jefferson, have you looked around? Have you looked around? much? You know, because they're not your utopian citizens.
Because they're not sure what you're talking about. I don't know that Adams said it had to be institutional, but humans had to be taught. And maybe you've actually used this phrase that, like you, can have a civic religion, but humans have to be taught it in some way. And I think that was his concern, whereas Jefferson, I think, thought it was sort of innate and just had to be brought out in people.
Agreed. And I think Jefferson was partly right and mostly wrong in that. I think Jefferson is a utopian philosopher, prince, who also lived in the real world. And the negotiations of those things don't always really work. So is it an establishment to say in God we trust on our coinage?
I think so. I mean, a lot of these, a lot of these elements of God. So One Nation Under God and the Pledge of Allegiance. I personally don't think that that language belongs there. It bothers me less than things like the Ten Commandments, because I do think that in God we trust is a little bit more vague.
It allows for some various. it allows for various interpretation. As long as you are not atheist and you don't believe in faith, it does allow for some various interpretation. But if we were to really interpret the First Amendment seriously, I don't think we would have that language on our coinage.
Is Christmas as a national holiday, an establishment?
That is an excellent question. Probably so. You know, I think we've kind of tried to make up for it, in that we allow people to take off for take off work and take off school for other holidays. But society does not shut down for Passover. Society does not shut down for Hanukkah or Kwanzaa or anything else.
Ramadan. I mean, imagine if Ramadan were a federal holiday, how that would stir up some political passion.
Yes, it would. You know, I think in some ways I don't want to make allowances, because this is a very provoking question. I think a lot of people celebrate Christmas in a very paganistic way, myself included.
It's all about merch with you, isn't it?
I really just like the Christmas tree and I like my decorations, and it's a very cozy holiday. But that is a thought provoking question.
So what if I put a cross on a national forest mountain overlooking Salt Lake City? Is that an establishment?
If it is a national forest, yes.
My view of this is very simple. I'm a kind of an absolutist because I think Jefferson was right.
I know. I agree. I totally agree. I think absolutism.
This is, I think, the most rightness of anything that Jefferson ever believed. And I think, when in doubt, throw it out. In other words, if there's a cross up on a mountain and the community just doesn't give a darn about it one way or the other, I don't think you need to have a busy body coming in and filing suits about that. But if it comes to the attention of the public, that there's a creche on the courthouse lawn, that there's a cross in a public place, that you're putting the Ten Commandments in your schools, it's clear to me. I mean, I'm not clear about everything, but I'm clear about this, that this was the very intention of the First Amendment to make sure that can't happen.
Because it's automatically an establishment. Every Hindu student in that school has to pass by the Ten Commandments. And if they said, how about if we put up some of our sacred verses, you know what would happen. Why can't the people get this? Why can't we get this?
Why can't we get? because the Supreme Court is going to chip away at this. And I believe that you're going to be deeply disappointed with court rulings in the next five years on the Religious Establishment Clause.
I already am. In the last couple of years, they have made a number of decisions that I think are not in the spirit of the First Amendment and are very disappointing. I don't know why we can't get it. I think it's. I think it's almost like I think some people have interpreted.
if the government is not allowed to do it, then that somehow is an insult. No one is saying you can't have a cross on Christmas tree. No one is saying you can't have a cross.
Or on my front yard.
Yeah, that's perfectly fine. It's saying the government on government lands with government resources cannot prioritize one religion over the other. And I just I agree with you. I don't think it's that complicated.
I mean, I get it. I get it. That evangelical Christians believe that that's what America is and that they believe I don't agree with them that if we still had prayer in schools, we'd be just fine. We'd be a much better nation. I think they believe these things.
I don't think that they're just posturing here. I think they deeply believe that we are a Christian nation and that, oh, come on. already. Your leftists and secularists are taking the intentions of the fathers far too far. They were much more ecumenical and flexible than you think.
And so on. I hear that. And I and I understand it. But I also think, if you look into it for five minutes, historically, you realize, if we didn't have separation of church and state, how many Methodists could there be? How many Lutherans could there be?
So that the proliferation we used to have? yellow pages. I don't know. Are you old enough to know yellow pages?
Yes, I did. I did have phone books when I was a kid.
If you look up in the yellow pages, the churches for any community in America, it's like breathtaking how many varieties of religious expression there are, even within Protestantism, much less Christianity, much less Judeo-Christian, much less the world. And so we have this breathtakingly beautiful set of religious freedoms in the United States. I could form a church tomorrow, the Church of Clay and Lindsay, and I could probably get tax free status for that. You'd have to be the high priestess, just be altar boy or something. But you take my point that almost anybody can form a religion in America and get tax exemption for it.
Yeah. You know, and I think one of the things that I think the founders did actually get right is a lot of them really felt that religion was supposed to be private and personal. And to this day, the person, my grandmother, was one of the most faithful people I knew. She was a devout Catholic. She went to church every week, sometimes multiple times a week.
She prayed every night. She lived her values and morals. She was an upstanding citizen. She cared for the poor or she cared for, you know, everything that you would want someone of faith to be. And she was so private about it.
She did not force other people to adhere to her same beliefs. And in doing so, I think she was actually a better advocate in some ways for her beliefs and her way of living, because it was so upstanding. But it was just the way that she did things. And I have so much admiration for that. And I guess I take that example as an important one, because no one is saying you can't have your faith.
No one is saying you can't believe and live the life the way that you want to live. They're just saying you can't make other people do it, too.
But if this conversation we're having were broadcast on an evangelical Christian network, people would tear their hair out and say that you're not a good American and that you misunderstand everything, and that that you are a threat to God's plans. I mean, this is not about tax policy. This is about deeply held views of what life is.
And I would say that we are both fortunate. we live in a society where both ideas have a right to exist. And I hope that they continue to have a legal right to exist.
When you talked about her privacy, I remembered Matthew 6, 6, When thou prayest, pray in your closet. In other words, don't be like a public showman of your faith. I've always thought that that was the final word on this subject, that, of course, we should not be embarrassed to be publicly religious, but we should not be out trumpeting of this and saying that's what America is and it's no other. Let's look at the other two clauses here for a minute. Freedom to petition for redress of grievances.
What does that even mean?
So it basically means you have the right to ask your government to address your concerns, whether it's to abolish a law that's already on the books or to try and pass a new law, or to reduce your tax load, or et cetera, et cetera. And the idea behind it is that it used to be back in Great Britain and in other nations that if you sent in petitions like this, they could be used against you, and that it could be dangerous to submit such petitions to parliament or to the king. And what this clause is saying is no, in a representative democracy, where the people are there to represent, where the leaders are there to represent the people, the people have the right to speak to their representatives and to ask for their assistance. And that cannot be held against them.
There should be no legal penalty or other penalty for saying to your government, this is unfair, this is oppressive. My rights are being denied or trampled upon. The attitude of most nations in history has been, who are you and how dare you question authority? The founding fathers wanted us to be a nation that does challenge authority. So when they say petition, they don't exactly mean what we mean.
We think a petition of 750 people who sign a petition saying that we should do X and Y and Z. The petition means you have a right to address a document to your government outlining your concerns or grievances.
Correct. And sometimes that did take the form of a request that was signed by 750 people from Northampton County. But other times it meant a letter or it meant a speech or a pamphlet or something like.
that. And so this is sort of a quiet way of talking about the right of rebellion or the right of protest, that this is an important American value. And I think this is often forgotten too, Lindsay. Dissent is absolutely central to the American experience from the very beginning. And whenever I see people that are appalled by dissent, I think, what have you ever read about freedom and about a republic, and about how things work in a democracy?
Absolutely. Dissent gets at the idea of a loyal opposition. You can oppose a measure. You can oppose a party. You can oppose a politician and still be loyal to the nation.
And dissent is an essential part of that loyal opposition.
And I'm really alarmed by where whistleblowing is. Whistleblowers in the first Trump administration or in the Trump administration were fired from their jobs. Their names were leaked to the public. Their phone numbers were given out. They were threatened.
They were demoted in their jobs. I've just been reading a really interesting new book on the Challenger disaster from 1986 and the whistleblowers in Utah who knew that those O-rings were of real danger. They lost their jobs. They were demoted. They were silenced.
They were threatened. We need whistleblowers. And that's what, in some sense, what we mean by petitioning your government. We need people to be able to say the attorney general is doing insider trading tips. In most countries, that person would have gone to jail for even bringing it up.
In America, we want to protect that. But we're not doing a very good job of protecting it, I don't think.
No. And, you know, there are legal whistleblower protections. But those are. the problem is when the government that's supposed to enforce protection is the same government that is being whistleblown against, that can get challenging.
So let's go to the last of them, Lindsay, assembly. So we're about to have a really interesting Democratic National Convention in Chicago. And we are already hearing that there's going to be a lot of assembly. They're going to be people protesting in the streets. Chicago is bracing itself.
There's a lot of prediction that this is going to be another episode like 1968, where there's absolute chaos. I really dislike it when I see an event where they say, well, here's this chain link fence over here and you can go over there and have your protest, but you can't be anywhere near the building. We've increasingly moved into a kind of a norm in America where, sure, you get to assemble, but don't disrupt.
The hot button issue. You know, I think the First Amendment says the right of people peaceably to assemble. And that peaceably is pretty important, because that means you can yell, probably. It means you can talk loudly. It means you can hold signs.
It doesn't mean you can destroy property. It doesn't mean that you can damage things. It doesn't mean that you can threaten people. It doesn't mean that you can obstruct traffic laws. I think that the challenge is, in some ways, as Americans, we've forgotten what it means to actually peaceably assemble.
And we have started doing non-peaceable assembly and then thinking that means peaceable assembly.
We've been a volatile protesting people from the very beginning. And I think that we should be careful not to squeeze this into too much civility.
I agree with you that our history of assembly is not necessarily a peaceful one. I mean, you know, I think about the Boston Tea Party, which we love to remember, but it was a lot of destruction of private property, which we're not comfortable with today. as a general means of making one point. Like, I don't want to condone destruction of private property, because often the people who are bearing the brunt of that, who, you know, is a shop owner or something like that, they're not the ones. They're not involved.
Yeah. And so, you know, I don't want to harm innocent people. But I take your point that we also don't want to get too sanitized and too squeamish about these things. So I'm not exactly sure where the middle ground is.
I assume you believe that January 6th was not peaceable assembly. It is pretty chilling.
It is. You know, if you look at the footage of the riot, especially in the tunnel underneath the Capitol, it looks like medieval warfare. It's horrific and it's terrifying. And it's not actually scenes that we see very often, like we see them in the movie theaters when we're watching, like, Gladiator, but we don't actually see them in real life. I think it's worth not looking away from that, because it's an important reminder that this actually did happen.
And it was quite ugly and quite brutal and very damaging for a lot of people.
So let's just close with this. And I don't want this to be about Donald Trump. But one of the allegations against him in a federal indictment is that the things that he said before the election, after the election, and particularly on the morning of January 6th, were not free speech that we should protect because he was inciting riot. As you know about Donald Trump, he's pretty shrewd about where the line is and how to stay just straddling the line enough so that there's a plausible argument that I didn't stir up any protest. I just said, you're going to have to get angry.
This is a First Amendment issue. And it's also. it's a First Amendment issue in several ways. Does he have an unlimited right to cry foul? If he says that this is war, is that a metaphor, or is it?
is it literal? Is the assembly that he encouraged an assembly we can accept? What if they had just shouted and there had been no property damage? Then surely you would agree that they had a right to shout.
Let me work backwards in that. So Trump does have a right to say a lot as a public figure and as a politician, that bar is higher than it would be for an average person. There are limitations. No politician is permitted to try to provoke violence. That's why that is a very important distinction.
However, the charges against him in the January 6th case actually don't have anything to do with free speech and they don't have anything to do with inciting insurrection. And I think that they explicitly avoided those charges for this exact reason, because it is very complicated. And the line is fuzzy and it's really hard to decide where the line is.
But I think Jefferson would say, looking at our culture now, or Adams, too, we have not done even an adequate job of civic education, because the American people don't seem to be aware of how grave this could get. How important it is to have these cherished freedoms and that we need to not just invoke them, but understand them and be able to do nuance, so that we're not just a reactive people, but a people that understand that this is a. These are incredibly important freedoms that are unsurpassed in the rest of the world historically. And but they aren't a comic book, that this requires an enormous amount of interpretation.
Yes, I think that our society would be better off if we all had a good understanding of what was in the Constitution, what is not, how the government works and what is protected and what is not protected in our amendments, because I think it would give us a better sense of when things are going off the rail. But it would also give us a much better sense of what we can expect, who we can hold accountable when things don't go the way we want them to go and what is outside the bounds of our expectations for the government.
So we'll go back on another program to talk about some of the other amendments. Of course, I want to talk about the fifth. I want to talk about the second. I want to talk about the sixth, seventh and eighth. And of course, the 10th, which has sort of come back into some primacy in our time, as states' rights are reasserting themselves here against the powers of the national government.
Lindsay, thank you. I hope we've done justice to this. It's it's amazing. You know, you could. we could do a program a week for 30 weeks on the First Amendment alone and its history.
We could. It's a very long, complex history. There are a lot of very important things, a lot of important moments in American history having to do with the First Amendment, not least of which are things like Watergate and Pentagon papers and different rights to protest and World War One. I mean, there's just there's so much so much that could be covered.
And gag orders. And, you know, we're in for a series of tests about the First Amendment, both in the street, in public discourse and in the law over the next 10 years. And it's in our interest to know more than we know. We'll see you all next week. For another important edition of Listening to America.
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