Revisiting the Constitution: Rewrite the First Amendment

Pauline Maier

Pauline Maier is the William Rand Kenan Jr. professor of American history at M.I.T. and the author of "Ratification: The People Debate the Constitution 1787-1788."

Updated July 8, 2012, 10:01 PM

Since we’re dreaming here, why not start with that part of the Constitution most beloved by Americans? I would rewrite the First Amendment.

Would keeping James Madison’s language have affected the decision in the 2010 Citizens United case?

“Congress shall make no law” is a peculiarly stingy way to begin an amendment that protects the rights of conscience, speech, press, assembly and petition. James Madison proposed more capacious language for those rights. He would have said, for example, that “the civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.” He would also have stated that “the people shall not be deprived 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.”

The First Federal Congress rewrote and consolidated the amendments Madison proposed. These framers had no idea how important the amendments would become. Nor did they, or anyone else at the time, call the 12 amendments Congress proposed in September 1789 or the 10 the states ratified by the end of 1791 a “Bill of Rights.” That came later. Much later.

Keeping Madison's language would make the First Amendment like most of the first eight amendments, which affirm basic rights in general terms, not as restrictions on the federal government. Would that have kept the Supreme Court from deciding, in Barron v. Baltimore (1833), that those eight amendments -- the heart of what we call the Bill of Rights -- bound only the federal government, not the states? Probably not. It might, however, have affected the decision in the 2010 Citizens United case that corporations have the same rights of free speech as individuals. There’s no doubt that corporations act as artificial persons in law. But to claim that they are part of “the people” would be a stretch.

More important, the rights covered in the First Amendment are not just another set of restrictions on Congress. They are basic principles of freedom. The language with which they are stated should make that clear.

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Topics: Law

Another Stab at the U.S. Constitution
