08 - The First Amendment

Speaker 0 00:01 So today we're going to be starting a multi-part series on the amendments to the constitution. Uh, specifically the first two 10 amendments, the bill of rights. We're gonna kind of go in depth on each of them, talk about why they were included, uh, what kind of the writers of the constitution. Uh, we're trying to accomplish, uh, antecedents to the amendment itself and issues that have arisen since the ratification of the bill of rights as far as interpretation of the amendments. Join us today on an incomplete history for an in depth discussion of the first amendment. Speaker 1 00:36 <inaudible> Speaker 0 00:57 hello and welcome to an incomplete history. I'm Hillary and I'm Jeff. Speaker 3 01:01 Where are your hosts for this weekly history podcast? Speaker 0 01:05 So, uh, good evening, Hillary. Speaker 3 01:07 Hello. How are you doin? Speaker 0 01:09 Pretty good. You've been Calvin and all over the Southeast this weekend. Speaker 3 01:15 Yeah, just been on little road trips here and there. So feeling a little tired, but okay. Speaker 0 01:22 Uh, run into any snow, any interesting weather. Speaker 3 01:24 Um, there was rain, our entire drive. We were driving across Tennessee and rain the entire time we were driving. So that wasn't fun, but it wasn't. No, and that's great. But it was dangerously close to that. It was very foggy, which I think Tennessee is famous for. Right. Is that, uh, so it was a little dangerous out there. And the roads, I'm not used to the roads still out here where it's not a 12 lane highway and you're going like, you're going one way and then the other people are going the other way and there's nothing that separates you, you know, and it's just like moving past each other. And I'm still not used to that. And there's no lights. Like, I think we should talk about Southern infrastructure one day because it's totally different than other places. Speaker 0 02:16 Well, there's, there's a big kind of book, right? There's like a big body of, of scholarship on that, right. About, uh, kind of the new South and the rise of that and everything. But uh, yeah, well we got an inch of rain last week. Speaker 3 02:32 I heard. So is fashion Valley flooded? Speaker 0 02:35 No, it didn't fly it. I mean they had to close a couple of the roads for a little bit. Uh, I mean, I know listeners solicit, is there like an inch of rain? Uh, that is one 20th of our annual rainfall total. And so if we, yeah, I mean if we have 19 more storms like that, we'll be on an average rainfall year and they're anticipating significantly more than that. So how many all over the place? It was insane. Um, I had to come up with imaginative ways to drive home when it's faster for me to drive home on local roads through the Hoya, uh, Pacific beach. It shouldn't be each, um, do what? Speaker 3 03:21 It's a nice tribe. It's very scenic. I do that just seeing the, Speaker 0 03:27 yeah, but if that's faster than me just driving down the five, which is normally like a 15 minute drive, like it was two hours the other day, that's a problem. That's a big problem. So anyway, today we're talking about the first amendment to the us constitution and maybe the bill of rights more generally, right? Um, just kind of what these things were. But uh, the first Amendment's pretty dense. There's a lot to it. There's Speaker 3 03:57 the fact that it has so many parts, almost makes me think that it should have, each part should have been its own amendment. But Speaker 0 04:06 it's interesting, right? You wonder why. So some of the amendments are kind of very specific, um, and really tightly focused. Whereas the first amendment is a lot of stuff. So I mean, let me start by kind of just reading what the first amendment says. So this is what it says. Congress shall make no law respecting an establishment of religion, comma or prohibiting the free exercise thereof, semi-colon or abridging, the freedom of speech comma or of the press, semi-colon or the right of the people peaceably to assemble comma and to push it petition the government for a redress of grievances. Period. And I know it sounds kind of weird me reading the punctuation, but I think that punctuation's important, right? So we've got kind of three distinct parts. So we've got the religion and free exercise thereof. We've got free speech or of the press and then we've got this people to peacefully assemble and petition the government for redress of grievances. Speaker 3 05:12 Yeah. All that punctuation is important because it does Speaker 0 05:17 <inaudible> Speaker 3 05:17 it does break it into these sections and again, why they aren't their own amendment. Cause like you said, some are just so specific. Speaker 0 05:25 Yeah. It's odd that they would group Speaker 3 05:29 all of these and the very first one. But I think it's because it's kind of like a tie. Speaker 0 05:34 Sure. First that's a, I mean I think maybe that's a good kind of thesis, right? That maybe you had multiple people arguing, but I mean, James Madison, who's the primary architect of the constitution, he initially opposes a bill of rights. Speaker 3 05:51 Well, but then when does he change his mind? Speaker 0 05:54 Well, I mean, Speaker 3 05:56 wow. When daddy, and I mean Thomas Jefferson and I don't mean literally he's a dad, but he was so heavily influenced by Thomas Jefferson and Jefferson was the one who was mostly behind this. And he kind of sends Madison out as, as minion, like go write these in Madison kind of on board. Speaker 0 06:15 Well, but I mean Madison initially, um, you know, he said, uh, it was a parchment barrier that if we put these rights down on to paper, it can actually lead to more problems than it would solve. And the idea was that once you specified things, people would say, well, it's not in here, so you don't really have that. Right. Um, but Jefferson famously writes, um, he doesn't attend the constitutional convention. And December of 1787, he writes this letter to Madison and he says, you know, if you don't include this bill of rights, it's a, it's going to be a big deal because the bill of rights quote a bill of rights is what the people are entitled to against every government on earth. And I think that's an interesting place to start with. Right? So Jefferson, so what did Jefferson wants? So Jefferson's anti-federalists, right? Speaker 3 07:13 He wanted to prevent the power of the federal government from, um, lording over the people because they had just fought to get away from a strong federal, central government of a monarchy. Right? And they were heavily invested in making sure that that wasn't going to be the case for this brand new government. And so to secure these fundamental rights were, was so important to so many people in order to sign on to the new, the new government. Speaker 0 07:47 Yeah. So you know, this, the people versus the government is this long thi you know, this long tradition in English and British history and the bill of rights just hasn't come out of anywhere. It has kind of pretty lengthy antecedents, um, going all the way back arguably to Magna Carta. Right? Speaker 3 08:11 Yeah. And also just it's created out of precedent of understanding what went wrong with the last government. Right. And I think the interesting part about the bill of rights, it's not about Speaker 3 08:28 the government giving you rights. It's not about that at all. It's not about the government is allowing you to do this. The, the point of the bill of rights is these are God given in alienable rights that every human being possesses. And so it's not about what is the government allowing of us, but what we are stopping the government from getting involved in with our own lives and individual rights and freedoms that it has nothing to do with, we should be thankful that the government has given this to us, but that they're fleshing out very clearly. The government is not allowed to get involved in these aspects. Speaker 0 09:10 Right. Well, so I mean, let me, let me start with Magna Carta. Um, cause I think understanding how can we move from Magna Carta to John Locke and the glorious revolution finally to Virginia's declaration of rights, kind of sets up a good background for how we end up with a bill of rights and why they look how they look. So the Magna Carta 1215, um, the great charter, the Magna Carta, uh, was a document that was basically England's King John was forced to sign. Um, his barons were rebelling against him and he agreed to sign this. And it doesn't give freedom to average English citizens at all. That's not what it is about at all. It's about this nobility, being able to check the power of the King. And I mean this is an interesting start because that has nothing to do with our bill of rights as far as the way it looks. But most legal historians would say this is kind of the Colonel. Um, so what does the Magna Carta do? Well, uh, you know, it's written in Latin, which still in 1215 is what you would write an important document like this and um, it's got 63 clauses. Most of them are about property rights of barons. Uh, it also doesn't really talk about average landless people. Um, and it has to get expanded on later in kind of English legal history. But, uh, Speaker 0 10:55 clause 39 of the Magna Carta says no free man shall be imprisoned or deceased, which is not deceased like dead, but D I S S E. I. S E D, that's kind of dispossessed, um, except by the lawful judgment of his peers or by the law of the land. This is key, right? I mean this is pretty spectacular. Speaker 3 11:20 This is the little nugget that starts at all. Speaker 0 11:23 I think it is. It's like the Cambridge just can't, the King does, can't arrest somebody and throw them in the clink. Speaker 3 11:30 And what's crazy about it is that this was so revolutionary and that people hadn't really thought about this before. And then suddenly they're like, Hey, wait a minute, people shouldn't be allowed to just be arrested for no reason. This is revolutionary political thought and advancement in society. Speaker 0 11:50 Yeah. And then we get the clause right after it as us know, what will we sell to? No one will we deny or delay, right. Or justice. Speaker 5 12:00 It's pretty big. Um, Speaker 0 12:04 you know, I, I get, I get chills cause I just, I'm amazed that that this document that's really not meant to protect the rights of all people maybe accidentally include something that is going to benefit many people. Speaker 3 12:25 That's what's so funny about this document. And then others, it's that they were not designed to benefit everybody and you weren't even thinking that it was going to, they were trying to cover their own interests and they were writing in their own language of attempting to, well, we need to make sure that everything's good for us, but then ultimately it ends up being blanket protections for everyone. And it was never intended in that way. And with, of course the magnet Carter was talking about, but then later on documents, founding documents, the United States, they were never intended to benefit everybody. And so if you think about any of the, any of the bill of rights, it was not intended to cover or assist or benefit, um, poor people. Non-property olders right. Uh, nobody who was enslaved and will certainly free black people, women, um, anybody who was non-Christian, it just wasn't designed to help them. Speaker 3 13:30 And then it ultimately, you know, because it's drafted and it's so, it's cannon, it does end up helping other people. And it's interesting that you say it gives you chills. Cause I'm like, I guess I'm, I'm not that faithful, the historian, cause I didn't, I didn't get the chills. But like again, I get what you're saying is like, it's super important document that that does end up offering the basis for everything else. Now there's, there's stuff going on too with parliamentary law after the Magna Carta, right in the 14, 15, 16th centuries where like it's built upon and strengthened and then that all this kind of a basis for what goes forward to the United States in building a new government because it's not like they're starting from scratch. They do have, yes. Yeah. Speaker 0 14:20 So we get, yeah, I mean this, this document. So first the Magna Carta undergo some revisions, um, and gets expanded on, Speaker 5 14:29 um, and kind of <inaudible> Speaker 0 14:32 the next 400 years of the, of kind of British legal or English legal history is interesting. But I mean, we want to get to the actual amendments of the, we're going to talk about, so I'm going to fast forward to John Locke because I think he's the next kind of super key piece in this puzzle about why they come up with this thing. So Locke is born, um, his parents are pure done. He's raised as a pure and he's born in 1632. Um, his is well connected and he's also loyal, uh, to the government because his father served as a captain during the English civil war. So he's around head. Um, and so Locke is well-educated. He eventually attends Christ church at Oxford and he takes logic, metaphysics classes, classical languages and uh, kind of returns, does a master of arts program there. Um, Speaker 4 15:36 okay. Speaker 0 15:36 Is elected to the Royal society, gets a degree in medicine. Um, he really is, you know, um, a polymath, right? He's, he's got interests all over the place, but the most important thing he does is he writes this two treatises of government and he talks about the natural rights of man and the social contract. And he argues, um, the social contract says people agree to submit to the authority of a government in exchange for that government protecting their interests. Speaker 4 16:13 Okay. Speaker 0 16:14 So a government is not supposed to be this kind of parasitic, um, have this parasitic relationship with its citizens, nor is it supposed to have an adversarial relationship. Uh, lockets in a lot of trouble. Um, this writing is not seen by supporters of King Charles. The second as very good, uh, lockets kind of wrapped up in this rye house plot, any eventually has to go to hall and he's exiled in Holland. He writes a little bit more there, but then we get the glorious revolution in 1688 and he's able to come back. And the glorious revolution is kind of the next big moment in this, right? Because the glorious revolution where it was the English people asserting they had a right to remove a King. They did Speaker 3 17:12 huge moment and also makes a lot of sense why there becomes a mass migration to the United States because it's not received well. It's not, you know, Speaker 0 17:26 I mean, this is the thing, there's a lot of people who do not like this, right? They don't like this. This is an upending of the social order. Um, you know, and what's important, and this is a lot of my students struggle with this. You know, it's the King of England. The idea of divine right was kind of a nascent thing at this point. It really wasn't strong. Right. And a lot of people aren't misunderstand and think European, especially Western European monarchs had this divine right thing all the way back. And that's not really true. Speaker 3 18:00 That kind of comes about during Henry the eighth. Right? Because, so that Clementine, you know, I guess sick, late 16th century stuff. But I mean, Speaker 0 18:13 right. Well, but I mean, you could argue that, right? You could argue that Henry's a deck declaring himself head of the church of England may have opened the door for them saying, well, if he can intrude and kind of religious matters like that, then maybe the parliament has to have the ability to kind of remove a King. Speaker 3 18:35 Yeah. Because otherwise, he's like an all powerful source or something. Right. Because it's like if you're not answering to anybody, you're not even answering to God. Right. Then you become the people authority in a way. And they were upset about that. Right? I mean, so it's, Speaker 0 18:54 yeah. Well, I mean, the biggest, so the biggest thing is, and it's funny, like we talk about this anti-Catholic sentiment. Um, King James the second, who is the King who gets dethroned during the glorious revolution. Uh, he is Catholic and a lot of English do not like this. They don't like having a Catholic King. You know, England has gone through now a hundred plus years of religious war on and off, and, uh, the parliament, they're able to kind of replace him with his daughter Mary. She's Protestant. She was raised Protestant and her husband who's Dutch and his name's William of orange, and they formed this jar, monarchy. And they negotiate. Parliament has a lot of power at that point. And we end up with something called the English bill of rights. It's officially known as then an act declaring the rights and liberties of the subject and settling the succession of the crown. Um, and it's kind of starts out with the condemnation of James, the second for abusing his power. And it says the monarchy cannot rule without the consent of parliament. Speaker 3 20:07 So it's a giant turning point for the function of government for the British. But it also serves as a launchpad for people who have at this point are in the colonies. And of course, William and Mary is named for who you just spoke of, right? Um, clinical William and, and so this sentiment that's kind of ruminating around is really hardly, uh, taken into account by people who have colonized this new area, right? The new world in the Northeast of, um, new England. And so that political sentiment is, is soaked up. Right. And that's, it makes sense, right at this time that there starts to be these stirrings toward, um, wanting, wanting their own government. And I mean, it's not, I wouldn't argue that they're starting that at the moment, but it's definitely their seeds planted because of the revolutionary discussions about politics. And about governing and governance that it becomes generational legacy of kind of revolutionary political thought. Speaker 0 21:26 Yeah, yeah. You know, it's, there are kind of these little mini rebellions that break out on the colonies as well. Though as people kind of hear news of this, there's kind of this general disgruntled atmosphere towards the kind of social hierarchies in the colony. Um, this is, you know, uh, Speaker 4 21:47 <inaudible> Speaker 0 21:47 when people start to reassess their relationship with their local governments. Um, Speaker 0 21:53 but the, the English bill of rights itself, it's important to note, includes a couple of key provisions. Um, the King and queen or queen can't interfere in the free election of parliament of members of parliament. There's free speech in parliament. Um, uh, the King, the crown cannot interfere with the law. You have the right to petition the King. You have the right to bear arms for self defense. Aha. You have freedom from cruel and unusual punishment and excessive bail freedom from taxation by Royal prerogative without the agreement of parliament. So this gives parliament the power of the purse string, right? Freedom of fines, unfortunate freedom from fines and forced for sures without a trial. And freedom from armies being raised during peacetime. Um, they also clarify that Roman Catholics can't be King or queen, uh, parliament should meet frequently and that when Mary died, a succession would pass to princess Anne of Denmark, Mary's sister and her heirs rather than the heirs of William. So this is the idea that they wanted to, you know, they're willing to have William kind of sit on the throne with Mary, but they want to keep this with English people after Mary dies. So Mary's children with William are not going to, uh, to the crown of the throne, but, Speaker 3 23:18 and that, that edict that non, you know, people who aren't, who are Catholic are not allowed that position, that kind of subtle, uh, at this point more than a century of debate over religious, uh, leadership within the region. Because there are some people who are supportive of the Catholics and some who are not and so to, to kind of set that establishment immediately there after they're there. That's settled at that point. Speaker 0 23:45 Right. Well, I mean Speaker 3 23:46 there's this whole idea that any time a Catholic leader would take the throne it through into doubt what would happen to Protestants. Right? Yeah. It allowed in other European powers to coerce or be included in or considered in British domestic policy and Speaker 0 24:07 well, Mary queen of Scots uses a French army. Right, Speaker 3 24:10 exactly. So a French army and then also the Spanish. Um, there's most certainly more, um, activity with the greater European continent when there is a Catholic Monarch and it's because they end up teaming up with these other countries who are predominantly Catholic. Speaker 0 24:30 So now we kind of moved from 1688 forward to 1776. And so June 12th, 1776, Virginia is constitutional convention convenes almost a month before, um, kind of the declaration of independence is going to be written in Philadelphia and ad it kind of lays down declaration of rights. And Jefferson draws heavily on this document for his declaration of independence, which unlike the constitution does assert people have certain rights. Correct. Speaker 3 25:03 Yeah. But are you asserting that Thomas Jefferson has plagiarized the document? Speaker 0 25:08 Um, I don't think he's plagiarizing it. I'm just think he's like looking at it and saying, Oh, that's pretty good. Speaker 3 25:13 Well it sounds plagiarism to me. I mean I, that sounds like a case of like true, but I mean it is, I think what I'm trying to get from there though is that these ideas are not coming out of nowhere. That this sort of political sentiment and this sort of revolutionary, um, idea of governance has, has been present for a long time and that they are drawing on one another and growing and learning and deciding, you know, how it's actually going to be flushed out. And so it's a collective effort. And, and I think that's important because a lot of people don't know who George Mason is. And so you, you talk about him and it's like, Oh, he was actually really involved in Jefferson's thinking and um, it wasn't like he just went off by himself. I mean, he did actually go and write it all out. And I've seen the house that he wrote the declaration of dependence in. Of course, it's in Philadelphia and that's really neat. But it's not like he's just pulling these ideas out of the clear blue sky. Speaker 0 26:16 Right. Well, and I think the big thing is, is he is George. Yeah. I mean, George Mason is interesting. He may be one of the most important colonial era figures that most people don't know much about. I mean, are he, is the author, he's the, he's right. He's the primary architect of the constitution. He's the one who's kind of able to make something that, you know, for the most part has to function to this day. Um, but I mean, what's really interesting, so there are 16 sections in this declaration of rights, the Virginia declaration of rights and section 16 says religion or the duty which we are creator and the manner of discharging it can be directed only by reasoning, conviction, not by force or violence. And therefore all men are equally entitled to the free exercise of religion according to the dictates of conscious. And that it is the mutual duty of all to practice Christian forbearance, love and charity towards each other. So this seems to be directly reflected in article one are the first amendment right? Absolutely. Speaker 3 27:31 Yeah. Speaker 0 27:32 But there's a little distinction there. Speaker 3 27:34 Absolutely. Yeah. There's for sure distinction. It says very specifically in that document that it's Christian and Christianity and Speaker 0 27:42 well, I mean it's that what it's saying. Speaker 3 27:46 So, and I mean I think that the first amendment was designed for Protestant Christians because habitually throughout time, so many people of different religions are persecuted and not just persecuted but forcibly converted. I mean, it's not written, but that's what ends up being the practice of it. If that doesn't excuse it, but I think that that's the issue. Speaker 0 28:15 But what if that lasts? That last phrase, um, it is the mutual duty of all to practice Christian forbearance, love and charity towards each other. What if that instead means, look, you can freely practice whatever religion you want, but at the end of the day, you still have to adhere to these three Christian concepts. Speaker 3 28:37 So then that's not having a freedom of religion at all because you don't have to, I don't know. What if you don't ascribe to those sorts of ideals? I mean, Speaker 0 28:48 I mean, maybe that's, well, I mean that's the thing though. I think that, I think kind of an expansive rating of this would be that you know, any, any religion, as long as it incorporates something that looks like Christian forbearance, love and charity towards each other is fine. But if your religion doesn't include those three things, then it's maybe not fine. However, we cannot force you to convert. Right. Um, I mean it's an odd thing and you know, we don't have a clear idea. We do know that Thomas Jefferson is an early advocate for no official state religion. Speaker 3 29:42 Most founding fathers were. And that's something that we've uncovered and discussed. And it was very popular, discussed in the early two thousands about that the founding fathers were actually Speaker 3 29:54 quite opposed to organized religion and have a lot to say about that. And that's one of the things bill Maher brings up. And that documentary, I don't know religious, it's old, but he talks a lot about that. It's just like they didn't, they were outright religious people and they didn't want everybody to be religious. And this whole idea about, you know, practicing kindness toward one another, whatever it said. It's as if, you know, humans need Christianity in order to figure that out. But it's like, no, I don't, I don't think that Christianity is what makes people be kind to one another. I think it's just like generally humans are like, Hey, let's not kill each other and steal each other's stuff. Right, right, right. I that's born thinking about freedom of religion in the first amendment and all this. It's like, I think it's so heavily predicated on Christianity yet it's not because so many of the founding fathers didn't, they weren't utterly or outrightly religious. Speaker 0 30:56 Well, I mean a lot of them are DAS, right? So they believed God was this great clockwork maker and he kind of created the universe and everything in it, set it in motion and the discount of went and did other projects. Um, right. And here's the thing is I tried to do with this is like Mason and Jefferson and all these people, even, even kind of the, the least religious amongst them still lived in a world where the vast majority of people they saw every day were Christian of some type. And I think Speaker 4 31:31 <inaudible>, Speaker 0 31:32 you know, I don't know what I think. I mean, it's this Christian forbearance love and charity thing. It's like, I mean, and there are reading is, yeah, Mason's saying, yeah, but you gotta be Christian. You can be any flavor of Christian you want to be, but you gotta be Christian or he's saying you can be anything you want to be, but you have to incorporate these three things. We think, I mean, maybe what he's saying, and this is the last section of the Virginia declaration, maybe saying, you know, our society needs forbearance, love and charity between people to work. It's not gonna work otherwise. I mean, it's Speaker 3 32:08 though is that deep Christianity to say that? Speaker 0 32:14 I mean, I don't know. I mean, I think it would've been hard for somebody like Mason to separate morality from religion. Right. Um, and you go back one section to section 15, and it says, no, free government of the blessings literally can be preserved to any people. But by affirm adherence to justice, moderation, temperance, frugality and virtue. And by frequent recurrence to fundamental principles, I mean fundamental principles. Thanks. What is our James, have I been saying George Mason? I think I have, I mean, James basin a James Madison, Speaker 3 32:48 James Madison, you got everything on that stuff now. James Madison, George Mason, Speaker 0 32:54 George Mason, right? James Madison. Yes. James Madison is the guy I'm talking about. Not George Mason. Um, but I mean this fundamental principles, like what does, what does that mean? Speaker 3 33:13 That's what ends up being such a huge problem in Speaker 4 33:18 <inaudible> Speaker 3 33:18 the constitution and the bill of rights. Like there's some, there is ambiguity and it's left to interpretation and different people can vehemently argue one way or the other. And I don't know if they did it on purpose. Sometimes I think yes, they did it on purpose, but also it's like, do you know the problems you've caused? Do you know? Speaker 0 33:40 Right. I mean, it's like they either do it on purpose or maybe they do it because they all kind of agreed in their minds what they meant by fundamental principles and thought it was self-evident. Speaker 3 33:49 Well, and we talked about that in earlier episode, right? Where, where I think we were talking about, uh, the high crimes and misdemeanors I think, but seeing that they knew what they meant because this was common everyday language and it was just generally understood that there it didn't need further explanation because they're just like, Oh yeah, we're all on the same page about that. But to a 21st century reader, we don't use those phrases. And so that's not at the tip of our tongue to explain something. And so then we, then we're forced because we don't use that phrase and it's not a part of our common lexicon. We ended up going and breaking down each word of it and trying to take it as literally as possible. And then that's kind of, I think that's what ends up causing the problems. But to them it's very possible that it, it wasn't ambiguous at all. Speaker 0 34:42 Right. Yeah. I mean it's, that's the thing is I think the easiest explanation is the one that makes the most sense is it's not ambiguous. They know what they mean by fundamental principles. For us, that's a little vague, right? We want something that's more concrete. Um, Congress shall make no law respecting an establishment of religion or the free are prohibiting the free exercise thereof. Um, that's a, that's a modification of what's in Virginia's declaration, right? Uh, there's no mention of Christian values of those, you know, forbearance, love and charity. Um, so I mean, maybe this is the thing is that Madison takes the document he had already written and kind of crafts this new version where he maybe a little ambiguity out. Speaker 5 35:40 Mmm. Speaker 0 35:42 And definitely some of the colonies are more religious than others, right? That those people in charge are more religious. Um, some of the colonies have kind of relatively long histories of religious plurality where some of the colonies are very mano religious, right? There's basically one religion. Speaker 5 36:03 Mmm. Speaker 0 36:05 Let's move to the second kind of phrase. You're ready to move to freedom? Speaker 3 36:10 Well, yeah, yeah, for sure. Yeah. At this one. And that's what I was getting scared of. I was like, Oh my gosh, we haven't even covered speech yet and we're already at 37 minutes. So yeah, let's get there. Let's get there. Speaker 0 36:23 Sarah, section 12 of Virginia's declaration that the freedom of the press is one of the great bulwarks of Liberty and can ever be restrained, but by despotic governments, bill of rights or abridging the freedom of speech or of the press. So this is Congress shall make no law respecting or abridging the freedom of law or the freedom of the press. So pretty cut and dry, right? Speaker 3 36:51 You would think, yeah, I don't think, yeah, I don't think that was as contested as just speech in general has been recently. But uh, that one is super important for the bill of rights and for the formation of this new government because, and this is something that the British still struggle with. They don't have freedom of the press there. I think a lot of people were totally shocked to know that, but they don't, the queen has four obeyed the press to print stuff. And I mean, I'm wondering if she's like doing major damage control right now because of Andrew and his tried so hard historically that's been their problem is that they do not have freedom of the press, right? Speaker 0 37:40 Well, so freedom of speech and the English bill of rights is in parliament, in parliament, in parliamentary meetings. If you're a member of parliament, you have a right to speak your mind. That doesn't extend outside of parliament, right? Speaker 3 37:55 So that just for a specific class of people to speak, right? The Arab politicians, right, Speaker 0 38:04 right. So then kind of something we have to bring up is the bill of rights as initially envisioned and until kind of some night, uh, kind of mid 20th century cases, it really only applies to an individual and their relationship with the federal government. It doesn't generally apply to state governments and the individual, and it's not until we get a series of cases, uh, one of the most famous is Griswold versus Connecticut, right? This idea that, uh, and that has to do with the ninth amendment, and we'll talk about that when we get to that episode. But this idea that, um, this is the individual citizen and their relationship with the federal government. So does the first amendment prohibit a protect free speech versus a state government? Eh, Speaker 4 39:03 okay. Speaker 3 39:04 Who knows? Unclear at this time and Speaker 0 39:08 unclear what about to another person? Speaker 3 39:11 Right? Well, but it's also just, um, it's important to think about, they're trying to appease people to get them to sign on. And so it is unclear, I would say for that reason is to say, well, is it the state or the federal government who gets to make those decisions? And that's what ends up being to this day. There are cases about that, right? It's like, well, is it the state or is it the federal is the state or the federal end? And in this case, it is. It's totally unclear. Speaker 0 39:40 Right? Well, and I think this thing is, so religion is the first thing they're thinking about. Freedom of speech and the press is the next one. Um, and I think the reason they do that is it's so important in the revolution itself, in the period of time leading up to the revolution kind of bolstering. And, uh, kind of supporters of revolution as well as kind of, um, helping people understand what they want to accomplish. The press is critical. Right. And I think they value the press's role in that. Now what's interesting is the first amendment is going to get trounced on every time we go to war after this. Speaker 3 40:27 Right. Wow. But the alien and sedition acts and, and yeah. Was the most, but, but with this too though is thinking about Speaker 0 40:43 the, Speaker 3 40:44 gosh, I'm sorry, I forgot what I was going to say. Speaker 0 40:47 Sorry. That's fine. I mean it's, it's, you know, it's, I think it is a little more cut and dry, but at the same time it's, where is the religious one? You know, the United States has not successfully banned any specific religion they've tried. Um, and they've definitely, there are some groups, especially kind of in the early part of the 19th century, that have to try to move outside the U S as Gerts jurisdiction. Uh, I'm thinking particularly the Mormons, right? I mean, Speaker 3 41:23 yeah, they had to go to their own land, Speaker 0 41:25 but that a lot of that is state governments they're contending with, it's not the federal government necessarily, although the federal government, Speaker 3 41:34 Lincoln blinking, it's involved in that, right? Speaker 0 41:37 Oh yeah, yeah. Later. Yeah. Yeah. Lincoln gets very involved. Um, so you know, it's, I think one thing that's important for listeners to understand is most of these amendments get challenged at various points and the Supreme court eventually asked to step in and kind of say, well, what's kind of meant by this? Um, you know, so you've got religion, you've got this freedom of speech to the press, and then you've got this last part of the first amendment, the right of people, piece of peaceably to assemble and to petition the government for a redress of grievances. Speaker 3 42:19 Can't go back. Because I remember what I was going to say now about freedom. It really is. You were mentioned that it's important because they're coming out of the revolutionary era and that was one of the biggest beefs with the British government was the stamp act. And that required you to have like a stamp or a seal on every single piece of paper you had. And so it really limited what people could say, what they could write, what they could publish based on their class status and their access to money. And so anything printed, printed, any piece of paper had to have a stamp on it. Um, and so this costs a lot of money. And so it was just, I think that that was one of the things that upset the colonists the most. And then the importance of the pamphlets, uh, and circulating ideas about revolution and circulating ideas about new governance. It would just became colossally important to spreading the message. And so that one does become so near and dear. And you're right, it gets challenged a lot, particularly in the 1790s because they're uncomfortable with it, but they also do know how important it is. Speaker 0 43:35 Right. Well, I mean, here's, yeah, definitely. I mean, it's, so when I left, the stamp act is great. Stamp act does in 1765. And the way I usually teach the stamp act is, uh, who can you not afford to join the rebellion? Uh, let's, the lawyers and the stamp act basically pisses off all the lawyers in the colonies since every piece of paper has to have this stamp on it. Lawyers, people who write, uh, printers, these are all the people who are going to be affect, affected by this. It's a really shortsighted solution right by the crown, um, Speaker 3 44:21 educated. Right? And so, Speaker 0 44:23 yeah, it's like, it's like, you know, and at this point, you know, maybe they're not many of those people who are very well educated and kind of in these professions where use paper a lot, you know, I think it's, you know, a majority of them are not in favor of independence and then they do this and they just managed to piss off a huge group of people. And so I think, Speaker 3 44:46 and well, he pull, yeah. Speaker 0 44:49 Powerful, wealthy people with access to printing presses and the will to use them. I mean, it's so stupid, right? It's so like, come on, could you have done anything more idiotic? Um, and you know, um, what I think is funny is in February of 1765, um, there's this meeting that takes place, um, you know, British officials are discussing this perspective stamp act. Benjamin Franklin is there, um, and the, uh, British official Grenville says, Oh, this is the most easy and lease objectionable to the colonies. Like this is just like, this will be fine. Thomas Watley who drafts it, um, says out of tenderness to the colonies. Speaker 3 45:47 That's, that's really good. I love that quote whenever I absolutely stupid and be like, it's not a tenderness. Speaker 0 45:56 Yeah. It's just like, it's, we can have a kind of a detailed discussion about these acts and I think at some point we'll probably get an episode dedicated to parliament trying to collect money from the colonies that they spent protecting the colonies. Um, but you know, this freedom of press is really important, right. And so they kind of bake it into this very first amendment, but let's, let's move to that peaceful assembly and petition the government. And then maybe we can look at all of all three parts again, kind of, yeah. Speaker 3 46:35 The way I look at, look at speech also just in general speech, not just to the press, Speaker 0 46:42 right. See, I don't think the first amendment is meant to guard anything other than your speech against the federal government. The way it's written in the way they wrote it. It's not, I don't think Madison is advocating your right to say whatever you want to about somebody else. Speaker 3 47:03 Oh, for sure. And that's exactly what I wanted to get at is like this is does not mean that you're allowed to just say whatever you want. And that's been well established over time that you're not allowed to say whatever you want, whenever you feel like it. And I found a good quote about this, um, from a SERMO pseudo, he writes in 1989 that Speaker 0 47:27 Mmm. Speaker 3 47:28 Essentially markets depend on the regulation of free speech in order to function. And he said that absolute protection of expression would render unconstitutional all of contract law, most of antitrust law and much of criminal law. I thought that was so interesting. And it's like you can't just say whatever you want. Like the first amendment actually does not allow for that. And that's the thing that I find that students have the hardest time understanding. And there's a lot of contentious debate on college campuses right now about freedom of speech, but the first amendment does not protect you to say whatever you feel like saying particularly in certain spaces. And I don't think students get that. There's like freedom of speech, freedom of speech. It's like you can't go into a crowded movie theater and yell fire. And that's the gem. That's the trope example. But it's, that's just the best example to say. And particularly college campuses, you're not allowed to say whatever you want and especially not in the classroom. So it's a distinction. Speaker 0 48:37 Right? It's funny. I mean what, what form of government? Like it's your classroom Speaker 3 48:44 w excuse me, what for government? Yeah, it's, yeah, it's a dictatorship. Speaker 0 48:53 Mine is a benevolent monarchy. Allah platers Republic. Speaker 3 48:57 Yeah. I actually have not like, I'm actually pretty democratic in my classroom to be honest. I think costumes are considered to be dictatorships, but halfway through the semester they were like, we don't like what we do. On Wednesdays, I was like, all right, we're not doing that on Wednesday anymore. I just inched everything. But if you can't say whatever you want in the classroom, and it's actually like my mandate as an educator and our mandate as educators to to correct people when they say something that's factually incorrect. And we've touched on this a couple of different times throughout the podcast and it's a delicate situation and balance and I never mean to shut students down, but they aren't just allowed to say whatever they feel like saying and they don't get that Speaker 4 49:42 <inaudible> Speaker 0 49:43 right. Well, I mean it seems to them you're shutting them down and you're not valuing their opinions and things on things. Here's the thing though. Um, you and I, and other history professors have studied this stuff a long time Speaker 0 49:59 and we try to be really careful about what we say and we try to kind of incorporate the latest scholarship, uh, but not just every bit of latest scholarship. We look carefully, we scrutinize new scholarship and we decide, you know, what rises, what kind of looks like it has enough critical evidence and makes a good enough argument that this is something I feel comfortable teaching my students and there's a lot of thought that goes into it and it's not just us up there. I'm kind of preaching to the class or kind of spitting out, you know, our own personal grievances against whatever it's, you know, we say these things and a lot of times students, I know for me a lot of times students mistake the way I talk about knowledge is kind of this contentious place and like, you know, history is, this is kind of constantly kind of not being rewritten completely but being kind of pushed one way or the other. I think they take that to mean anything goes and they can say whatever they want and usually, yeah, go ahead. Speaker 3 51:16 That's the importance of teaching them about making an evidence based argument because they can say whatever they want. I think, I mean I let them make arguments, but they have to be steeped in evidence. You have to give me primary sources, you have to hit me with, you know, some literature like you're no, I don't let them just wax on about nonsense from just like, where did you hear that? Where did you get that idea? Um, what have you read that says that? And I pushed them to consider things in a scholarly way. And that's part of the teaching process I think is like, you can say things, but you have to make sure that they're steeped in evidence. Speaker 0 51:56 Right, right. So like a piece of evidence that I would use, uh, earlier discussion about religion. I made this assertion that many of the, the kind of architects of the constitution, founding fathers aren't particularly religious. One of the piece of evidence I would use would be Thomas Jefferson's Bible. So he makes his own Bible. It's really small and it's really small. Well, he took everything he said was superstition out of it. Speaker 3 52:28 Yeah, he took all, so he like he based it off of the traditional new Testament, but he took out all of the references to Jesus, his miracles or anything that was like out of the ordinary or seen as mystical. He just removed that and then didn't he call it something like the teach the good teachings of Jesus Christ of Nazareth or something like cause he's just looking at it morality perspective. Speaker 0 52:56 Well that's the thing is I think that, and this is I think would be also good evidence that maybe what they meant was that maybe what Madison meant was, you know you have to have this base moral morality. It's the life and morals of Jesus of Nazareth. He also wrote the philosophy of Jesus of Nazareth, but no copies of that exist today. Speaker 3 53:21 He also owned a Quran. He was well read, studied and he understood religion from multiple. Yeah. Speaker 0 53:31 Right. So this would be, as an historian, these would be piece of evidence I would use to say, look, Thomas Jefferson is definitely not this super religious person who wants one religion to dominate all others in the United States. And, you know, I know that's a pretty contentious statement at this point. A lot of people, you know, the United States is founded as a Christian nation, kind of Speaker 3 53:59 a lot of what is established us law and precedent and customs and tradition, all those things. Yes, heavily, heavily Christians still day. But I don't know if it was the intention of the framers and that's like, you're right. Those are the pieces of evidence that I've presented to students to say, were they really that interested in it? You know, and really on this, Jefferson was like his own God. I mean, this man worshiped himself. I mean, who is like, I'm going to write my own Bible. It's like, wow, you didn't look like a long enough list of accomplishments. Like your CV just wasn't teaching enough with, you know, strengths you had to say, you know what, write my own Bible to the guy's soup AKI. Speaker 0 54:50 Oh, yeah. I mean, it's, um, yeah. Uh, Speaker 0 54:59 so if you, uh, I just have to throw this in here because I did, I remember seeing it when I went to, um, Washington DC on my last research trip. Uh, it is in the national museum of American history and the documents gallery. Um, and it is this little red book. And when I was there, they had it open so you can just read one page, but they've got these digital kiosks. So can you, you can read it and stuff. Um, but Jefferson, I just love, I am a sect by myself as far as I know. Speaker 3 55:34 This is what I'm saying. Like this guy. Can you imagine like being on a date with this man at the end? Sufferable Speaker 0 55:43 uh, I think he talks like George Costanza. Speaker 3 55:49 Yeah. He gets referred to himself in a third person. Yeah. But George Castanza has major self esteem issues. I mean you're thinking of like, like Jimmy sound like that episode where the guy ever, but I mean he's, he is super cocky and I want to preface that by saying though is I love Thomas Jefferson. Super flawed has a lot of problems, but like I do understand his importance and I mean we can get into that on another day I guess, but a mess of. Speaker 0 56:23 So let's finally, so let's get to this last part with assembly and redress of grievances kind of before we go too long on this episode. Um, so section two of the Virginia declaration of rights says all power is vested in and consequently derived from the people semi-colon that magistrates are their trustees and servants and at all times amenable to them. And definitely the last part of this, to the right to petition the government for Doritos or grievances is a continuation of that, right? You can kind of see the history of that back in the, uh, the English bill of rights, even the magnet Carter, this idea that you have a right to petition the government to get clarification on things. Speaker 3 57:10 Yeah, yeah, for sure. It comes working with what you talked about with the magnet Carter, because that revolutionary ideal of, you know, you actually can question what the government's doing and you do have, um, a, a vehicle for doing that. That's really rooted in that document. And so I liked that, you know, the, the tail end of it kind of comes full circle to discuss where really the magnet Carter does come, uh, into, into play. Speaker 0 57:40 Right. Um, so we didn't touch much on peaceful assembly. Why do you think that is? Is it self-evident what it is? Speaker 3 57:52 See, I dunno. I dunno about that. I mean I think it's an important, but it's, it's all well is the, go ahead. Sorry. Speaker 0 58:05 No, again, it's like a right, that's in the first amendment. So they clearly thought it was important. Um, but again, this is a right to gets trounced on constantly, even today, right? I mean, what does that mean? The first amendment says I can peacefully assemble. How can a local government then come in and say, you don't have a permit? Well, the constitution doesn't say I need a permit to assemble. Speaker 3 58:28 No, it doesn't say who fully assemble under a permit. Speaker 0 58:33 Right? Right. It says the right of the people peaceably to assemble. And I think this isn't, again, an interesting thing and one thing as kind of an a story and that makes me a little uncomfortable is who the public's okay. With the government banning from assembling and who they get upset when the government bands from assembly. So there's a famous case Speaker 4 59:02 <inaudible> Speaker 0 59:03 do what Speaker 3 59:04 I think it, it changes depending on the moment in time, but what place are you thinking of in particular? Speaker 0 59:11 Well, so I'm thinking of the Nazi protest in Skokie, Illinois in 1977. Right? So most Americans be okay with the Nazis being banned from, from assembling. Um, however the Supreme court decides in, um, national socialist party of America vs village of Skokie, um, that in fact the freedom of speech and freedom of assembly do apply and that the village of Skokie cannot, nor can the state of Illinois ban the national socialist party from assembling. Um, it reprimanded the, uh, Illinois Supreme court, uh, because the Illinois Supreme court had held lower courts ruling upheld lower court's rulings that they could not March. And I think this is a big thing and this gets to an issue that I think a lot of contemporary Americans have problems with. A lot of my students struggle with this as well. If we kind of expand freedom of spread of speech and we couple it to this idea of peaceful assembly, it means sometimes we're going to hear some pretty detestable opinions. Speaker 3 00:27 I mean, I'm witness to that every single day on campus. Speaker 0 00:33 Yeah. And you know, what's the solution to that? Do we go back to an older, maybe 19th century reading or freedom of speech or do we kind of accept it as a reality of living in kind of a pluralistic contempt, a modern society? And I, you know, I, what do you think about that? Speaker 3 00:57 For me, I think it boils down to the burden, the financial burden to the taxpayer. So for example, um, when I was at Penn state, there was a speaker who came to campus who was very, uh, contested. Like nobody, not nobody. A lot of people did not want this individual to come and speak on campus. I'm not going to say who it was, but there were protests, uh, when he arrived. And so there was a large group of students who wanted to go see him speak. There was a large group of students who were protesting outside and like kicking the doors down basically. And this was back in 2016 on one side. And what ended up boiling down to is like the cost to secure the event at a state school fell on the taxpayer. And I think that if people understood how much it costs to pay for security for these sorts of events, I think that people would need so much more hesitant to just give carte blanche to these speakers. Speaker 3 02:04 And I have to say that I'm getting some of these ideas from in a forthcoming book. It's called the contested campus, aligning professional values, social justice and free speech. It's coming just some for 2019. And these ideas are discussed in the book to kind of flush out what does free speech on a college campus look like, what are the legal ramification, what are the financial implications? Um, and so some of these ideas I'm gleaning from that book and I would recommend it. It's really interesting for thinking 21st century speech issues. But that's for me, what it boils down to is what is the financial burden of protecting the speech? Because it can, it can cause like rioting. I mean, think about Charlottesville, somebody was killed, right? And, and initially there was a peaceful assembly, but at what point does it stop being peaceful and at what point do law enforcement have to intervene and that to what costs to the taxpayer to facilitate some of this madness. And I mean madness on both sides of the aisle because in the 1960s of course there was a lot going on, you know, with the protests to the war and the free speech movement at Berkeley and all, I mean, to me this doesn't boil down to a partisan issue, but you do have to ask questions about what does this cost society literally in dollars and cents. Right. Speaker 0 03:46 I think it's a good point, right? I mean it's, there's kind of a logistical issue with it, but I mean, part of me Speaker 7 03:54 cool. Speaker 0 03:56 I dunno. Part of me is just like, you know, um, maybe it's the price you have to pay or, I don't know. I mean it's, it's a sticky situation, right. And it's complicated issue because I think a lot of us are worried about, once we start saying, well, this group can't protest or this group can't appear to speak because the cost to the community is going to be so huge to kind of protect them or to maybe keep peace because of protests that'll arise. We can't allow them to speak. I mean, it becomes an easy way to shut down public discourse is, you know, if you find out somebody who's coming to speak, if you just can't get enough of your friends together and make a big stink about it, that person won't be able to speak because they'll be able to kind of say there's this burdensome cost. Speaker 3 04:50 Yeah, definitely a slippery slope. And I, and I think if you start setting a precedent, um, it can backfire on people as well that, you know, you start to kind of make these judgements on one group and then it's going to affect another group and that kind of snowballs into this bigger issue. Or before you know it, you're right. Maybe maybe that freedom to assemble and freedom to speech ends up being curtailed. It's such a sticky subject that I don't have the answer to it and I do see both sides of the coin, but I think right now it's contentious in different ways than it was 10 years ago and maybe we'll be in 10 years. And so I think the importance of the debate at the moment is to remember that no matter what policy ends up being enacted now, like it will come down the pipeline potentially to bite you. Speaker 3 05:48 And so leaving not major judgment calls on it at the moment. Um, but it's certainly a huge issue on college campuses and that's, that's the big, that's the big thing because they're publicly funded, right? So if you have somebody just standing on a street corner, that's a little bit different because yes, there's still a cost to the public I guess, but it's like is the college campus the space where they are left to foot the bill for something along those lines? And the answer may be yes, and the answer may be like, absolutely that's what college campuses are for. But the answer may be no. You know, we actually need to spend more money on, um, accessibility and housing and health care for our students or any number of things that college campuses could pump money into that aren't dirty. And so it's a, it's really complicated. Speaker 0 06:45 Yeah. I think that's the thing is, is college campuses are, you know, are these traditionally since the 1960s not really before then free speech spaces. Um, but you know, in places like that, they do have a right to kind of protect the students and kind of things like that. Um, but Speaker 0 07:14 kind of for the Nazi party versus Skokie, it's not a college campus. Right? It's a municipality. It's a city. And I think that's why the Supreme court says you can't stop it there. Right. You have to allow it to happen. Whereas, um, a person doesn't have freedom of speech, um, within their company necessarily. Right. Or within a corporation or within any kind of institution. Um, you may not have freedom of speech. You might be allowed it, but you know, it's not automatic. Um, but I think it's, it's one reason it's really important to look at these, this bill of rights and really think about them, um, because they are so important. Uh, any last words? Speaker 3 08:06 No, I'm really excited to go onto the next, uh, the next bill of right. Right. Like an amendment. Oh, yeah. Speaker 0 08:13 Yeah. I mean, uh, next is going to be the second amendment. Speaker 3 08:16 Yeah. And that's, thanks to loyal listener Katie in North Carolina. She was the one who suggested that we cover the second amendment, and then we started talking about it and said, you know what, we should cover all of them. And so we're gonna cover the second next week, but we do listen to suggestions and if you do, you know, have something that you're interested in learning more about, please let us know and we're really open to going in the direction that's most beneficial to our listeners. Speaker 0 08:44 Yeah, definitely. I mean, I think that's the thing is, um, you know, I want this to be useful. I mean, we've talked about this. We want this to be what people want to hear. Uh, it's what they want to learn about. Um, and I, you know, I think this is, this is great. I think it's a great start to this. So, uh, wow. Can't wait til the next one second amendment. That should be fun. Uh, I'm Jeff Speaker 3 09:12 and I'm Hillary. Speaker 0 09:15 Thanks for joining us this week on an incomplete history. Make sure you join us next week as we continue our discussion of the bill of rights. Um, if you haven't, uh, rated us on Apple podcast, please do so. Leave us review there. Also, if you enjoy our podcast, you can go to our website on incomplete history.com and you can leave comments there. You can also find show notes. You can read a little bit more about, uh, the two of us. Uh, additionally, um, we are going to be available on YouTube starting this week, so look us up on there. There'll be a link on our homepage that takes you to YouTube. Uh, that's another place you can kind of listen to our episode. Uh, we may at some point do some kind of <inaudible> Speaker 8 10:00 live stream there. We're still kind of working out the details for that. Also, we have a Patriot link up on our home page. Click on that if you want to shoot us a few bucks to help us cover the production costs of an incomplete history. Until next time, thank you very much. Have a good day.