The Surprising Origin Story of the First Amendment: How the Founders' Intentions Were Misunderstood

Core Concepts

The First Amendment's position as the first of the Bill of Rights is not due to the Founders' understanding of its importance, but rather a result of historical coincidence and happenstance.

Abstract

The article challenges the commonly held belief that the First Amendment was placed first in the Bill of Rights because the Founders considered it the most important. It traces the origin of this "myth" and provides historical evidence to the contrary.
Key highlights:

The Founders repeatedly rejected proposals to include a bill of rights, including protections for freedom of speech and the press, during the Constitutional Convention.
When James Madison introduced what would become the Bill of Rights in 1789, he did not intend for the amendments to be placed in a specific order. His proposed "First Amendment" was meant to be inserted into the body of the Constitution.
The final order of the amendments was determined by Congress, not Madison, and the First Amendment's current position was a result of chance rather than design.
The author argues that the myth of the First Amendment's primacy has become a "self-fulfilling prophecy," shaping how we value and protect freedom of expression in the United States.

Stats

"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."
"Madison also proposed a second press clause, in case the first didn't do the job. It would have made clear that the new federal government and the states could not interfere with freedom of the press."

Quotes

"The First Amendment is first for a reason," Mr. Chapelle told a crowd at the Kennedy Center. "The Second Amendment is just in case the First one doesn't work out."
"So even if the facts aren't entirely right, even if Ms. Powel didn't rush up to Franklin on the steps of Independence Hall, maybe indulging these myths isn't all bad — not least in a country that has such difficulty with internalizing civics lessons."

Key Insights Distilled From

Pornography, Texas, and the Origin Myth of the First Amendment

by Matthew Scha... at matthewschafer.medium.co... 03-13-2024

https://matthewschafer.medium.com/pornography-texas-and-the-origin-myth-of-the-first-amendment-9ccb6528e0f2

Deeper Inquiries

How have the myths and misconceptions surrounding the First Amendment's origins influenced its interpretation and application over time?

The myths and misconceptions surrounding the First Amendment's origins have had a significant impact on how it is perceived and applied. By perpetuating the idea that the First Amendment was placed first in the Bill of Rights because it was considered the most important, these myths have shaped public understanding of the amendment's significance. This belief has led to a heightened reverence for freedom of speech and expression, often placing it above other rights or considerations. As a result, there is a tendency to prioritize free speech protections even in situations where it may conflict with other important values or interests. Additionally, the myth of the First Amendment's primacy has influenced judicial interpretations, with courts sometimes giving speech rights greater weight than other constitutional principles.

What other foundational myths or origin stories in American history might be worth re-examining and challenging?

One foundational myth in American history that might be worth re-examining is the narrative surrounding the Founding Fathers as flawless and infallible figures. The idealized portrayal of the Founders as universally wise and virtuous individuals has shaped public perception of American history and governance. However, a more critical examination reveals that the Founders were complex individuals with conflicting views and interests. Challenging this myth can lead to a more nuanced understanding of the historical context in which the United States was founded and the complexities of the issues they grappled with.

In what ways can a better understanding of the First Amendment's historical context inform contemporary debates about free speech and the role of the government in regulating expression?

A better understanding of the First Amendment's historical context can provide valuable insights into contemporary debates about free speech and government regulation of expression. By recognizing that the placement of the First Amendment in the Bill of Rights was not based on a belief in its supreme importance, but rather on historical circumstances, we can approach discussions about free speech with a more nuanced perspective. Understanding the Founders' original intentions and the evolution of free speech protections over time can help us navigate complex issues such as hate speech, misinformation, and the boundaries of expression in the digital age. It can also remind us that the protection of free speech is not absolute and must be balanced with other societal interests, such as public safety and the prevention of harm.