The First Amendment
http://www.firstamendmentcenter.org/
About the First Amendment
By Brian J. Buchanan
First Amendment Center Online managing editor
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.
— The First Amendment to the U.S. Constitution
The First Amendment was written because at America's inception, citizens demanded a guarantee of their basic freedoms.
Our blueprint for personal freedom and the hallmark of an open society, the First Amendment protects freedom of speech, press, religion, assembly and petition.
Without the First Amendment, religious minorities could be persecuted, the government might well establish a national religion, protesters could be silenced, the press could not criticize government, and citizens could not mobilize for social change.
When the U.S. Constitution was signed on Sept. 17, 1787, it did not contain the essential freedoms now outlined in the Bill of Rights, because many of the Framers viewed their inclusion as unnecessary. However, after vigorous debate, the Bill of Rights was adopted. The first freedoms guaranteed in this historic document were articulated in the 45 words written by James Madison that we have come to know as the First Amendment.
The Bill of Rights — the first 10 amendments to the Constitution — went into effect on Dec. 15, 1791, when the state of Virginia ratified it, giving the bill the majority of ratifying states required to protect citizens from the power of the federal government.
The First Amendment ensures that "if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or force citizens to confess by word or act their faith therein," as Justice Robert Jackson wrote in the 1943 case West Virginia v. Barnette.
And as Justice William Brennan wrote in New York Times v. Sullivan in 1964, the First Amendment provides that "debate on public issues ... [should be] ... uninhibited, robust, and wide-open."
However, Americans vigorously dispute the application of the First Amendment.
Most people believe in the right to free speech, but debate whether it should cover flag-burning, hard-core rap and heavy-metal lyrics, tobacco advertising, hate speech, pornography, nude dancing, solicitation and various forms of symbolic speech. Many would agree to limiting some forms of free expression, as seen in the First Amendment Center's State of the First Amendment survey reports.
Most people, at some level, recognize the necessity of religious liberty and toleration, but some balk when a religious tenet of a minority religion conflicts with a generally applicable law or with their own religious faith. Many Americans see the need to separate the state from the church to some extent, but decry the banning of school-sponsored prayer from public schools and the removal of the Ten Commandments from public buildings.
Further, courts wrestle daily with First Amendment controversies and constitutional clashes, as evidenced by the free-press vs. fair-trial debate and the dilemma of First Amendment liberty principles vs. the equality values of the 14th Amendment.
Such difficulties are the price of freedom of speech and religion in a tolerant, open society.
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The 10th Amendment
The Tenth Amendment (Amendment X) of the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791. The Tenth Amendment restates the Constitution's principle of federalism by providing that powers not granted to the national government nor prohibited to the states by the constitution of the United States are reserved to the states or the people.
History and case law
The Tenth Amendment is similar to an earlier provision of the Articles of Confederation: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."[1] After the Constitution was ratified, some wanted to add a similar amendment limiting the federal government to powers "expressly" delegated, which would have denied implied powers.[2] However, the word "expressly" ultimately did not appear in the Tenth Amendment as ratified, and therefore the Tenth Amendment did not amend the Necessary and Proper Clause.
The Tenth Amendment, which makes explicit the idea that the federal government is limited only to the powers granted in the Constitution, is generally recognized to be a truism. In United States v. Sprague (1931) the Supreme Court noted that the amendment "added nothing to the [Constitution] as originally ratified."
From time to time states and local governments have attempted to assert exemption from various federal regulations, especially in the areas of labor and environmental controls, using the Tenth Amendment as a basis for their claim. An often-repeated quote, from United States v. Darby, 312 U.S. 100, 124 (1941), reads as follows:
The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.....
Forced participation or commandeering
The Supreme Court rarely declares laws unconstitutional for violating the Tenth Amendment. In the modern era, the Court has only done so where the federal government compels the states to enforce federal statutes. In 1992, in New York v. United States, 505 U.S. 144 (1992), for only the second time in 55 years, the Supreme Court invalidated a portion of a federal law for violating the Tenth Amendment. The case challenged a portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985. The act provided three incentives for states to comply with statutory obligations to provide for the disposal of low-level radioactive waste. The first two incentives were monetary. The third, which was challenged in the case, obliged states to take title to any waste within their borders that was not disposed of prior to January 1, 1996, and made each state liable for all damages directly related to the waste. The Court, in a 6–3 decision, ruled that the imposition of that obligation on the states violated the Tenth Amendment. Justice O’Connor wrote that the federal government can encourage the states to adopt certain regulations through the spending power (i.e., by attaching conditions to the receipt of federal funds, see South Dakota v. Dole), or through the commerce power (by directly pre-empting state law). However, Congress cannot directly compel states to enforce federal regulations.
In 1997, the Court again ruled that the Brady Handgun Violence Prevention Act violated the Tenth Amendment (Printz v. United States, 521 U.S. 898 (1997)). The act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns. Justice Scalia, writing for the majority, applied New York v. United States to show that the law violated the Tenth Amendment. Since the act “forced participation of the State’s executive in the actual administration of a federal program,” it was unconstitutional.