Americans talk a lot about First Amendment rights. But how much do we really stop to think about its punctuation and the specially chosen words that give it meaning? Not enough, says Michael McConnell, director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution.
"It's not long, but there's an awful lot packed into this," he said to a sizeable crowd, predominantly students, who braved the snowstorm to attend the annual Meiklejohn lecture Wednesday night.
McConnell has argued 13 cases in the U.S. Supreme Court, the most recent being CompuCredit v. Greenwood in 2011. He has served as a circuit judge on the U.S. Court of Appeals for the Tenth Circuit, Assistant to the Solicitor General in the Department of Justice and law clerk to Justice William J. Brennan Jr. of the U.S. Supreme Court. A leading authority on many aspects of constitutional history and law, he specializes in matters involving the First Amendment and was considered a potential U.S. Supreme Court nominee under President George W. Bush.
The Meiklejohn lecture was created in honor of Alexander Meiklejohn, who graduated from Brown in 1893 and went on to become dean of the University and president of Amherst College. Endowed by former Renault executive Louis Schweitzer, the lectureship has brought such distinguished speakers as former U.S. Attorney General Janet Reno, civil rights attorney Floyd Abrams, then-president of the ACLU Nadine Strossen, Supreme Court Justice Antonin Scalia and investigative journalist and author Seymour Hersh. Meiklejohn still "dominates the field" of constitutional law, McConnell said.
Throughout the lecture, McConnell used his PowerPoint - titled "The Architecture of the First Amendment: What can we learn from its grammar, words and historical context?" - to display the amendments and other texts to which he referred, reformatting them and highlighting words and phrases as necessary.
He first examined the punctuation of the First Amendment.
The two clauses refer to the same word, religion, which McConnell believes should make us "suspicious of the argument sometimes made that we ought to give the idea of religion a very broad construction for purposes of free exercise, including various secular forms of conscience, but give it a very narrow interpretation for interpretation of establishment."
"There's only one word - it's only repeated once," McConnell added. "The idea that you give two different definitions is, I think, questionable."
He then addressed the amendment's subject: Congress. He noted that the other branches of government are not mentioned, raising the question of whether the executive or judicial branches or individual state governments could infringe upon our First Amendment rights. But the 14th Amendment's guarantee to due process ensures this will not come to pass, he added.
The amendment's verbs "clump the sentences in a different way from the semicolons," he said. It can be divided into three verbs: "respecting," "prohibiting" and "abridging."
The statement that Congress may not "abridge" freedom of speech implies that an understanding of this freedom already existed, McConnell said. The addition of "the" also suggests that "the freedom of speech" was a pre-existing concept. By contrast, the fact that Congress must not "prohibit" the free exercise of religion shows that no such right had already been established.
The choice of the verb "respecting" is also significant. While Congress may not establish religion, it also may not "disestablish" it, allowing "roughly one half of the States" to practice "non-coercive or tolerant establishment."
If freedom of religion is the newest right set forth in the First Amendment, free press is the second newest. McConnell said freedom of the press was "vigorously believed in" after the lapse of the Licensing Act in 1695, long before the founding.
Freedom to petition and assemble is the oldest of the First Amendment Rights. To demonstrate this, McConnell displayed two sections of the English Bill of Rights: The first allowed all subjects to petition and assemble, and the second protected members of Parliament from being punished for ideas that they put forward while deliberating in Parliament. He noted that while only Parliament had to be protected while creating laws, this power today is wielded by the American people, and the First Amendment is thus a combination of these two stipulations.
"What was a right of the Parliamentarians becomes the right of all Americans," he said.
Grant Drzyzga '14, who takes a constitutional law class that focuses on textual analysis, found the lecture "extremely informative" and "insightful."
"Breaking it down to the punctuation isn't something we usually do," he said, adding that this useful tool on the "utility belt" of constitutional law experts adds some "nice little nuance" to the study.
Anthony Calcagni '13 said he "absolutely agreed" with many of McConnell's points. While we talk about freedom of speech and the press, "we don't really talk about how, grammatically, those came to be."
Calcagni is currently enrolled in POLS 1120: "Campaigns and Elections," and attended the lecture with his class.
"We're all really excited for the debrief," he said.
