BRIEF HISTORY OF THE FIRST AMENDMENT

BEFORE WE DIVE INTO THE SUBSTANCE OF THE First Amendment, let's start with a bit of history. The Founding Fathers did not think up the ideas of freedom of speech, religion, the press, and the rest all by themselves. Many of these rights had a long pedigree extending back into the misty recesses of the Middle Ages, and their implementation in the American system was a far messier process than you might have learned about in high school.

The foundational document for the First Amendment, and indeed the entire structure of constitutional government, is everyone's favorite piece of 13th- century moldy parchment: the Magna Carta, or Great Charter. That historic document arose out of a feudal dispute between England's King John I (of Robin Hood fame) and his power-hungry barons. In 1215, the beleaguered king was forced literally at sword-point to sign a piece of paper that placed limits on his power. The Magna Carta recognized the barons' right to a speedy trial and due process of law, protected them from arbitrary arrest and seizure of property, and forbade the king from levying taxes without consent. Far from being a liberal document that benefited the common man of the kingdom, the Magna Carta served the interests of the nobility — but at least it was a start!

The circulation of ideas brought about by the printing press and the renewal of conflict between the king, nobility, church, and parliament in 16th-century England led a newly educated class to reimagine the relationship between the individual and the state. To them, the Magna Carta embodied ancient freedoms and natural rights that all people possess and that government cannot infringe upon. Parliament attempted to reign in the autocratic Charles I in 1628 by having him ratify the Petition of Right, which reaffirmed the Magna Carta and went further by both guaranteeing the right of habeas corpus and requiring consent of the owner to quarter troops in a private home (both also covered in the U.S. Constitution). Such measures were short-lived, however, as the outbreak of the English Civil War led to the beheading of Charles I in 1649, tabling for the time any further discussion about rights of speech, religion, assembly, and the press.

The English Civil War also had a formative impact on the North American colonies that would one day become the United States. The war fractured the colonies along political, religious, and geographical lines. Fiercely independent New Englanders favored the Puritanical Parliamentarians, and in 1641 the Massachusetts General Court passed a comprehensive Body of Liberties that guaranteed to all its people, for the first time, the rights to speech, assembly, and petition. Anglican colonies such as Virginia sided with the Crown, while Catholic Maryland saw the only battle of the English Civil War fought on American soil.

However, the seed of constitutionalism continued to blossom in the colonies both during and after the war, as the Maryland Toleration Act of 1649, the Rhode Island Charter of 1663, the West Jersey Concession and Agreement of 1676, and the Pennsylvania Charter of Privileges of 1683 all guaranteed religious freedom to Christians regardless of denomination — a very liberal gesture in its day!

The next formative event in First Amendment history was England's Glorious Revolution of 1688. Protestant parliamentarians, sick of the growing Catholicism and authoritarianism of King James II, decided to give him the royal boot and invited William of Orange, the leader of the Netherlands, to rule as a co-monarch with James's daughter, Mary. Upon the downfall of James II, revolts broke out throughout New England, New York, and Maryland, as disgruntled colonists forcibly ejected their hated royal governors. William and Mary, within months of taking power, ratified the most comprehensive grant of rights and freedoms to date: the Bill of Rights of 1689, the direct, lineal ancestor of the U.S. Bill of Rights.

This transatlantic conception of rights continued to evolve over the course of the 18th century, as the famous English jurist William Blackstone systematized and rationalized the messy English common law system (more about this in Chapter 2) in his magnum opus, The Commentaries on the Laws of England (1765–69). In that work, equal parts legal treatise and political polemic, Blackstone describes how the English common law system uniquely preserved the ancient rights and freedoms of the individual against absolute monarchy. Blackstone's masterful combination of law, politics, and philosophy was a hit among the new American elite. Over 2,000 copies were sold in Philadelphia alone, and Blackstone's hefty multivolume work graced the bookshelves of such colonial luminaries as Alexander Hamilton, John Jay, John Adams, John Marshall, and Thomas Jefferson.

Despite the growing belief that there were areas of individual life that should be free of state interference, the law in America lagged behind that principle for most of the 18th century. Many of the colonies continued to have official churches and afforded little protection to speech. The coming of the American Revolution began to change this dynamic. Under the direction of Thomas Jefferson, Virginia in 1776 became the first colony to pass a comprehensive Declaration of Rights, guaranteeing the "inherent rights" of freedom of speech, religion, and the press, among others. The exigencies of war quieted most philosophical discussion of individual rights for the time being, as the fledgling nation fought for its more immediate right to exist.

The Treaty of Paris recognized American independence in 1783, and for the next six years the country continued to operate under the loose legal framework of the Articles of Confederation. That rickety structure proved unworkable, however, and the entire document was...