The First Amendment

Considered by many the most important amendment to the Constitution is the First Amendment. It states,

"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."

JAMES MADISON This was not the first draft, by any means. There were multiple drafts regarding the freedoms that should surround religious and speech expression.

An earlier draft, spread out over two amendments, read,

"(3)Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed. (4) The freedom of speech, and of the press, and the right of the People peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed."

This was a hotly debated amendment, with Madison among others very concerned about the wording. It is worth noting that the earlier version stressed that speech was meant to be contributive to the common good. This similar concept is present in the preamble to the Constitution.

Another interesting point was that the while the religion clause was originally separate from the speech and assembly clauses, the later two were not separate. A reasonable explanation of this might be that the two were always to be considered together. Thus free speech was intended to be limited to political speech.

As Leonard Levy points out in Emergence of a Free Press, It is important to remember the prominent role of James Madison, considered the father of the Constitution and the Bill of Rights. In The Virginia Report, 1800, by the Virginia House of Delegates (which Madison penned), the idea that the Sedition Act was unconstitutional was advanced. It was his view that the First Amendment guaranteed an absolute freedom against the federal government, because no authority of the United States could abridge it.

However, Levy further explains that Madison could not support a sedition law that put into place prior restraints, which would abridge the freedom of speech and the press. In The Virginia Report, Madison wrote,

"It would seem a mockery to say that no laws should be passed for preventing publications from being made, but that laws might be passed for punishing them in case they should be made."

It is unclear, however, whether Madison had in mind the British understanding of a sedition law, where the crown were the authority. This contention is worth making because of the reference Madison also makes in saying "this idea of the freedom of the press can never be admitted to be the American idea of it."

Why the distinction between an American and a British idea of free speech, but not a distinction between to differing ideas of a sedition law. It would seem Levy is short sighted in not considering that Madison's criticisms of the Sedition Act were in the case that it might be used as was the Seditious Libel law of tradition in England.

George Washington voiced a similar concern when he wrote not outright condemning the passing of the Alien and Sedition Acts, but also not sanction them. In a response to the General Assembly of Rhode Island, recorded in the George Washington Papers Series 2 Letterbooks, Washington did caution that it would have to be seen whether Congress would "play out the ethical applications to of these laws." The logical assumption that can be made here is that in Washington's eyes, the laws were proper if ethically applied. It would only be in their unethical application that their existence would become improper. An application similar to that of British rule where there were prior restraints would be just such an unethical application.