I’ve received several questions about the scope of the Bill of Rights, often around ideas that can be summed up in the Incorporation Doctrine.  Since here at The Constitution Study we like to take a deep look at the actual language, it’s worth looking at how the First Amendment is different from the others.

Language Matters

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;

U.S. Constitution Article V

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;

U.S. Constitution Article VI, Clause 2

So if any amendment to the Constitution is part of the Constitution, and the Constitution is the supreme law of the land, what makes the First Amendment different?  The answer is, its language:

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.

U.S. Constitution Amendment I

Unlike the rest of the Bill of Rights, the First Amendment specifically limits Congress.  Some of you may say that each state has a congress, doesn’t it?  No, they have a legislative branch, but they didn’t name them their “congress”.  Besides, in the Constitution these branches of government are always referred to as the legislatures of the states, not as Congress of the state.

the State Legislature – Article I, Section 2

from each State, chosen by the Legislature thereof – Article I, Section 3

during the Recess of the Legislature of any State – Article I, Section 3

prescribed in each State by the Legislature thereof – Article I, Section 4

by the Consent of the Legislature of the State – Article I, Section 8

in such Manner as the Legislature thereof may direct – Article II, Section 1

without the Consent of the Legislatures of the States concerned as well as of the Congress – Article IV, Section 3

on the Application of the Legislatures of two thirds of the several States – Article V

when ratified by the Legislatures of three fourths of the several States – Article V

The Senators and Representatives before mentioned, and the Members of the several State Legislatures – Article VI

So, does that mean you have no protection for your freedoms of religion, speech, press, assembly, and redress in the states?  No.  Each state constitution includes protections for the freedoms listed in the First Amendment.  What it does mean is that you should not be able to bring suit in federal courts for state abridgments of those freedoms since it was not Congress that passed the law.  Where do you go to redress your grievance?  State courts.

Why it matters

It matters because we have made everything a federal case.  It seems our first reaction to any complaint, any injustice, or any thing we want, is to go to the federal government.  And now, any perceived infringement on our rights has to be handled by a federal court, though that is not how our republic was designed.  The states are sovereign; they gave the central government the power to do only a few things, yet today we expect the feds to do almost everything.  The Constitution is the supreme law of the land, but more and more what it actually says is ignored in favor of what we want.  Washington grows, and when we look there first, we embolden it to grow more while the states diminish.  As the states become weaker, our first line of protection also becomes weaker, and when we let the ends justify our means, we move farther from from a free republic and closer to a tyrannical democracy where your rights are only one supreme Court vote away from obliteration.