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The First Amendment of the United States

billchao

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This isn't meant to be a partisan discussion, simply a statement of the law. It bugs the shit out of me when people cite the First Amendment incorrectly. Here it is, verbatim:

Amendment I

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.

A good resource can be found here at the Cornell University Law School website:

https://www.law.cornell.edu/constitution/first_amendment



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1 hour ago, Abu3baid said:

Can you give an example of when it is cited incorrectly?

Any one of the times when someone claims we are infringing on their First Amendment rights when we delete their posts.

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I don't know that I've ever heard anyone claim the 1st amendment protects their statements from criticism. Is that a common thing? If so, then I agree that would be irritating.

I know there are limitations - yelling "fire" in a crowded movie theatre is the most common example I've heard.

I know the porn industry cites protection under the 1st amendment. While I can't figure out why, I think they are correct. Porn must fall under "press"?

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The other interesting "twist" on the 1st Amendment is what it specifically says about religion, and the way it has come to be interpreted. There are no words there about "separation of Church and State" as many think there is. Lots of smart people I've met have sworn to me that those words are in the Constitution.

From what I recall, Jefferson wrote a letter once and mentioned a "wall of separation between church and state." That letter has been cited as intent of the framers, although there's debate on what Jefferson's intent by that phrase meant, because he did not implement any strict wall of separation during his terms as president.  The trend over the years is to interpret the 1st Amendment as more and more restrictive regarding what the government can do with regards to religion, from what I understand.

What's not debatable (but misunderstood) is that nowhere in the 1st Amendment does it say there is a separation of church and state.

Just some random musing. (I attended UVa where TJ is still worshipped, so this tidbit sunk in while I was a student there, long long ago)

 

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41 minutes ago, RandallT said:

"The other interesting "twist" on the 1st Amendment is what it specifically says about religion, and the way it has come to be interpreted. There are no words there about "separation of Church and State" as many think there is. Lots of smart people I've met have sworn to me that those words are in the Constitution.

From what I recall, Jefferson wrote a letter once and mentioned a "wall of separation between church and state." That letter has been cited as intent of the framers, although there's debate on what Jefferson's intent by that phrase meant, because he did not implement any strict wall of separation during his terms as president.  The trend over the years is to interpret the 1st Amendment as more and more restrictive regarding what the government can do with regards to religion, from what I understand.

What's not debatable (but misunderstood) is that nowhere in the 1st Amendment does it say there is a separation of church and state.

Just some random musing. (I attended UVa where TJ is still worshipped, so this tidbit sunk in while I was a student there, long long ago)

 

"Congress shall make no law respecting an establishment of religion,.." 

I read this as Congress cannot establish religion as part of the government. So do many others including the SCOTUS. That is separation. My attorney wife agrees BTW.

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16 minutes ago, boogielicious said:

"Congress shall make no law respecting an establishment of religion,.." 

I read this as Congress cannot establish religion as part of the government. So do many others including the SCOTUS. That is separation. My attorney wife agrees BTW.

Yeah, but that constitution was written 250 years ago by white, old, rich men.  Doesn't have any relevance to today's times.  It's a living, breathing document that should adapt to evolving circumstances.

Written with tongue in cheek but hopefully I get my point across.  Sorta chaps my ass when lefties use the above then firmly embrace the aspects they like (their favorite almost invariably being church/state separation).  

I like the whole thing because I believe our founders were perhaps the wisest men ever assembled to create a nation.  It is the foundation upon which the greatest country ever conceived is lain.

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11 hours ago, JonMA1 said:

I know there are limitations - yelling "fire" in a crowded movie theatre is the most common example I've heard.

 

That was an analogy made by O W Holmes in the case US vs Schenk, a horrible analogy that had nothing to do with the case at hand, unless one is for censorship.

US vs Schenk was overturned in 1969, by the way:

http://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/

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7 hours ago, boogielicious said:

"Congress shall make no law respecting an establishment of religion,.." 

I read this as Congress cannot establish religion as part of the government. So do many others including the SCOTUS. That is separation. My attorney wife agrees BTW.

First, Happy Birthday! Just saw that in the sidebar.

But yes, I understand your interpretation above, and I think it's likely the consensus view today. 

Anyway, my point wasn't to start an ideological argument or anything, but just to point out that sometimes the First Amendment doesn't say what otherwise intelligent people think it says. I was simply echoing your sentiment when you wrote:

Quote

It bugs the shit out of me when people cite the First Amendment incorrectly. 

I have had people tell me they were certain that the Constitution mentioned "separation of church and state" which it objectively does not. As I recalled, Jefferson's own letter he wrote many years after the Bill of Rights factored into that interpretation in court opinions, which implies there was doubt in the wording as written. I could be wrong on that, but it does stick in my head from way back in college (the university that Thomas Jefferson, himself, founded).

I completely agree with you that people need to cite the words in the Constitution correctly: Congress can't establish, nor prohibit the free exercise of religion. Therefore, people can't cite "separation of church and state" as being in the Constitution, unless they mention the judicial interpretations over the years of the founders' intent. 

I suppose I'm nit-picky about it, because I think our Constitution is quite important, although I don't claim to be a high-falootin' scholar- just someone who respects it greatly and I'm always interested to learn more. 

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1 minute ago, RandallT said:

I completely agree with you that people need to cite the words in the Constitution correctly: Congress can't establish, nor prohibit the free exercise of religion. Therefore, people can't cite "separation of church and state" as being in the Constitution, unless they mention the judicial interpretations over the years of the founders' intent. 

In layman's terms it does a pretty good job in describing the 1st amendment in terms of what it does to protect religious freedoms. 

The fact that congress can not create laws establishing a religion does make it pretty hard to say there isn't a separation between church and state. With only over a hundred years from when the Pilgrims, fleeing the Church of England due to thinking it was corrupt beyond repair, landed in the United States till the US's creation of the constitution. The fact that many of the wealthy landowners in the United States were those also who felt that England was too constricting in terms of freedom of land ownership and worship. It is an easy reach to say that the 1st amendment was their strict demand that congress shall not make laws doing anything similar to what the Church of England and the King of England was doing to it's citizens when it came to religious persecution. They didn't want any governing body to have influence in the spiritual aspect of society.

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On 3/11/2016 at 1:53 PM, jamo said:

Might as well post it for posterity:

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

https://www.law.cornell.edu/constitution/second_amendment

Here's a quick overview of its inflection point:

http://www.newyorker.com/news/daily-comment/so-you-think-you-know-the-second-amendment

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59 minutes ago, nevets88 said:

It's a tricky piece of wording. Still it can be argued that the line, "the right of the people to keep and bear arms, shall not be infringed". Is a powerful part of that amendment. 

In the end a militia, though now defined under the National Guard, in times of extreme measures would be the citizens of this country. If the USA was ever invaded by a big enough army that the National Guard could not adequately supplement the primary military then the people can be called upon as a Militia. In that instance the definition of a Militia still validates every US Citizen the right to own and bear arms. 

If they discontinue that right then they should invalidate anybody other than the National Guard from ever defending this country. 

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On March 14, 2016 at 8:20 PM, BruceMGF said:

That was an analogy made by O W Holmes in the case US vs Schenk, a horrible analogy that had nothing to do with the case at hand, unless one is for censorship.

US vs Schenk was overturned in 1969, by the way:

http://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/

Thanks for the info @BruceMGF.

So even if the analogy was not relevant to that particular case, is it a proper example of the limitations of the first amendment? In other words, if there were injuries as a result of yelling "fire", would there be grounds for criminal charges? For that matter, what if there were no injuries?

By the way, I am not much in favor of censorship. Unfortunately, it has to be across the board. Meaning, even if I find something extremely disturbing - a nazi rally or West Baptist Church protest for instance - so long as they are doing it within the letter of the law, I have to live with it.

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7 minutes ago, JonMA1 said:

So even if the analogy was not relevant to that particular case, is it a proper example of the limitations of the first amendment? In other words, if there were injuries as a result of yelling "fire", would there be grounds for criminal charges? For that matter, what if there were no injuries?

I think there is laws for just inciting panic even if it doesn't cause injury. Also, you are not just talking physical injury but emotional as well. I think that civil law could play a part. Imagine if someone was in that theatre who was a burn victim who has a panic attack. 

10 minutes ago, JonMA1 said:

By the way, I am not much in favor of censorship. Unfortunately, it has to be across the board. Meaning, even if I find something extremely disturbing - a nazi rally or West Baptist Church protest for instance - so long as they are doing it within the letter of the law, I have to live with it.

As long as the protests are peaceful and they obey the laws then they have the right to their bigoted ignorant asinine free speech. 

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10 hours ago, saevel25 said:

As long as the protests are peaceful and they obey the laws then they have the right to their bigoted ignorant asinine free speech. 

There's a fine line for peaceful nowadays. People would argue that screaming into your face and things like that are peaceful as long as they don't initiate violence. 

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On 3/12/2016 at 0:43 PM, RandallT said:

The other interesting "twist" on the 1st Amendment is what it specifically says about religion, and the way it has come to be interpreted. There are no words there about "separation of Church and State" as many think there is. Lots of smart people I've met have sworn to me that those words are in the Constitution.

From what I recall, Jefferson wrote a letter once and mentioned a "wall of separation between church and state." That letter has been cited as intent of the framers, although there's debate on what Jefferson's intent by that phrase meant, because he did not implement any strict wall of separation during his terms as president.  The trend over the years is to interpret the 1st Amendment as more and more restrictive regarding what the government can do with regards to religion, from what I understand.

What's not debatable (but misunderstood) is that nowhere in the 1st Amendment does it say there is a separation of church and state.

Just some random musing. (I attended UVa where TJ is still worshipped, so this tidbit sunk in while I was a student there, long long ago)

 

I did attend a discussion where Jefferson's letter was discussed. It was in reply to a citizen, a woman I believe, who asked for an explanation of the amendment. Can you imagine a time when a president would have time to do such a thing? Of course, Jefferson probably had staff!

In the letter, the "wall of separation between church and state" was there to keep the state from imposing any one church upon the people.

As far as people citing the Articles of the Constitution incorrectly, the "separation of church and state" is the classic example. In most cases they are sins of omission.

In the case of the 1st Article, lefties consistently quote the "freedom of religion" phrase, and some have incorrectly tried to morph this into "freedom from religion". But if you stop and think about it, Atheism IS a kind of religion. And nobody says you can't be one! The sin of omission is that they leave out the phrase, "or prohibiting the free exercise thereof." Well, except for themselves, of course!

The same thing occurs with the 2nd Article. Lefties are fond of quoting the "well established militia" phrase, but are very leery of the "right of the people" phrase.

Lefties are fond of talking about what the government is allowed to do, but not so fond of talking about what the people are allowed to do.

On 3/15/2016 at 8:35 AM, freshmanUTA said:

There's a fine line for peaceful nowadays. People would argue that screaming into your face and things like that are peaceful as long as they don't initiate violence. 

They wouldn't get far with me. Screaming in my face IS violent, and initiates violence. And to expand Links 22's comment, the modern phenomenon of valuing uninformed opinion equally with informed opinion continues to boggle my mind!

Edited by Buckeyebowman

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On 3/12/2016 at 1:15 PM, Abu3baid said:

Can you give an example of when it is cited incorrectly?

I realize this was posted 18 months ago, but in case anyone is still following, it is often cited incorrectly when discussing private    Entities, e.g., employees and management. It only prohibits action by Congress, i.e., the Government.

 

On 4/9/2016 at 10:09 PM, Buckeyebowman said:

In the case of the 1st Article, lefties consistently quote the "freedom of religion" phrase, and some have incorrectly tried to morph this into "freedom from religion". But if you stop and think about it, Atheism IS a kind of religion. And nobody says you can't be one! The sin of omission is that they leave out the phrase, "or prohibiting the free exercise thereof." Well, except for themselves, of course!

I've stopped and thought about it, and I still don't see atheism as a religion. And most of us lefties have no interest in prohibiting anyone from freely practicing their religion, only that they do so appropriately, e.g., in their homes and places of worship.

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