A Tale of Two First Amendments (Part 1)

04th November, 2017

The freedom of speech and expression is perhaps the most important right a citizen has in a democracy. It is also the most controversial. Ever since modern democratic republican states came into existence, there has been heated debate about the nature and limits of the freedom of speech. How the right has been interpreted in every country has a lot to do with its own unique history and culture.


The American Constitutional Convention and the Indian Constituent Assembly

The United States of America and India are two of the largest democracies in the world. It follows that the freedom of speech is a basic, inalienable right in both countries, but inevitably also the one that causes the most divergence of opinion. Should the freedom of speech be absolute? How liberally should it be interpreted? Should there be some limitations? What should these limitations be? These questions have been brought up in the legislatures and judiciaries of both countries time after time, and each country has evolved the law on this in its own unique way. But, interestingly, the very first amendment of both countries’ Constitutions was on the freedom of speech. And while one was made to add the freedom, the other was made to curtail it.


A New American Constitution


Let’s go back to the year 1787. For the first decade after their independence, the Americans didn’t really have a constitution. In 1781, the 13 colonies, now states, had signed the Articles of Confederation and Perpetual Union, which gave them nearly sovereign-level powers and left next to nothing for the federal government. The states were now acting as independent entities, refusing to pay taxes to the federal government and violating international treaties. The weak federal government found itself unable to pay off debts and keep the country together in the face of secessionist movements, British aggression and internal rebellions. A farmers’ uprising in Massachusetts in 1786-7, known today as Shays’ Rebellion, against perceived economic and civil rights injustices acted as the final catalyst for a change. On February 21, 1787 the Confederation Congress passed a resolution for a Constitutional Convention to meet in Philadelphia to revise the Articles of Confederation and make a stronger federal government.

A monument to Shays' Rebellion in Southwestern Massachusetts

Through the summer of 1787, delegates from every state (except Rhode Island, which refused to send any delegates as it was opposed to centralising powers in the hands of a stronger federal government) met, discussed, debated and drafted what would eventually become the Constitution of the US. The 55 delegates in attendance included some of the most famous, admired and respected founding fathers of the US, including George Washington, Benjamin Franklin, James Madison and Alexander Hamilton. There were some conspicuous absentees including Thomas Jefferson, who was in Paris at the time as minister to France, and John Adams, who was minister to England, but Jefferson was more than happy with the composition of the Convention. In a letter to Adams, he wrote, “It really is an assembly of demigods.”

The drafting of the Constitution took around 4 months. Our regular readers might be wondering how this was possible given that it took our Constituent Assembly nearly 3 years to draft the Indian Constitution. Well, the American Constitution was one of the first modern democratic constitutions and contained only 7 Articles, a Preamble and a Closing Endorsement. The Indian Constitution came 162 years later and had 395 Articles and 8 Schedules, making it the longest national constitution in the world. While the Indian Constitution was drafted to be as comprehensive as possible, the American Constitution was meant to be only a blueprint for the governance of the country, which is why each state in the US has its own separate constitution, some of which are far lengthier than the national Constitution. The state constitution of Alabama, for example, is about three times the length of the Indian Constitution.


Debate and Drama


When the final draft of the US Constitution was finished in September 1787, several of the delegates were unhappy with it, and three of them even refused to sign it. Amongst these three was George Mason, a delegate from Virginia who felt that the Constitution was woefully incomplete without a “bill of rights”. Mason had, in 1776, drafted a “Declaration of Rights” for Virginia. Heavily influenced by English philosopher John Locke, he believed that a republic had to begin with the formal, legally binding commitment that individuals had inalienable rights that were superior to any government. In fact, Mason had even moved a resolution to include a bill of rights in the US Constitution, but it had been defeated.

George Mason, James Madison, Alexander Hamilton, and Thomas Jefferson

The political leadership in the US was divided into two rival factions: the Federalists, who supported the newly drafted Constitution, and the Anti-federalists, who were opposed to it. The main criticism of the Constitution was the lack of a bill of rights. Federalists, including Madison and Hamilton, were convinced that there should be no bill of rights in the Constitution. Madison believed that bills of rights were simply “parchment barriers” that offered only an illusion of protection against state tyranny. It was argued that the enumeration of a specific set of rights was dangerous as it would imply that other rights not mentioned in the Constitution did not exist. Hamilton wrote, “It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Carta, obtained by the Barons, sword in hand, from King John [...] It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations.”

But, in most of the states, sentiments were turning more towards the Anti-federalist point of view. The Americans had recently gained independence from the despotic rule of the British monarchy, and were wary of the stronger federal government proposed by the new Constitution. They wanted guarantees that their rights would never again be trampled by those in power. Thomas Jefferson rose as a major voice against the Federalists and argued, “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.” Repudiating Hamilton’s argument that enumeration of specific rights would imply that no other right exists, he wrote in a letter, “Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.” Eventually, while the Constitution was ratified by all the states, many of them called for the addition of a bill of rights.


The First Amendment


Wishing to avoid a second Constitutional Convention that would undo all the efforts of the first one, Madison agreed to the addition of a bill of rights and offered to draft it. On September 5, 1789, at the First United States Congress, Madison introduced the First Amendment along with the rest of the Bill of Rights. His draft of the First Amendment read as follows:

“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. 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. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.”

The language was substantially pared down by the Congress to the following:

“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.”

It was passed by the House of Representatives and the Senate with barely any recorded debate and was adopted, along with the rest of the Bill of Rights, on December 15, 1791. The lack of discussion and debate on the First Amendment has made it difficult for courts in the US to subsequently gauge the exact intent behind its language. But the historic context under which it was passed has made the Supreme Court of the United States (SCOTUS) give it a very liberal and wide interpretation, protecting freedom of speech against state action as far as possible. The Constitution places no explicit restrictions on the freedom of speech and the SCOTUS has adhered to that as closely as possible.


Say Anything


While the SCOTUS, over the years has put some restrictions on freedom of speech, they are much fewer than those in India and far more sparingly applied. The historic distrust of the federal government when it came to civil liberties and the treatment of individual rights as paramount, often even above the State’s interests, has led American freedom of speech laws in a very different direction from India. The SCOTUS’s stated “preferred position” is that any law or regulation or executive act that limits political speech – even symbolic speech – should almost always be struck down. In various cases, it has protected the right of a citizen to indulge in openly racist hate speech as long as it does not incite imminent lawless action, to burn the national flag as a sign of protest, and even to burn a cross on another citizen’s property.

Hate speech and cross burning by the Ku Klux Klan has been protected by SCOTUS in the past

All these actions would have attracted the strictest of penalties under our legal system, because, unlike the US Constitution, our Constitution permits broad restrictions on the freedom of speech. But, this wasn’t always the case. The Indian Constitution originally had very limited restrictions, but our first amendment changed that. Why? That is another interesting story that we will get into in our next post.