“Congress shall make no law” restricting the free exercise of religion, freedom of speech, or of association. Aside from Christ’s distinction between duties to God and duties to Caesar, the First Amendment’s words are some of the greatest barriers ever erected against tyranny. But James Madison, who wrote them, warned how easily the ever-present temptation to tyrannize overcomes “parchment barriers.”
Until recently, the First Amendment was our Constitution’s least questioned, most treasured part. Today, growing calls for joining the rest of the world in criminalizing speech offensive to society’s most powerful groups remain anathema to most Americans. As the federal government applied the Bill of Rights to the states, the First Amendment was the first that it imposed upon them, in a 1925 Supreme Court decision called Gitlow v. New York. No one exercising government power at any level, no “state actor” may deprive anyone of his First Amendment rights. That’s how it works in theory, anyhow.
Nevertheless, most Americans sense that freedom to engage publicly in religious activity, to express ourselves, to choose with whom to associate (or not), is declining perhaps irreversibly. States, for example, have created “human rights commissions” that penalize businesses for refusing to take part in celebrating homosexuality. Public school employees are fired for praying on school grounds, and even children are punished for doing so. All know that certain opinions or attitudes, even casual remarks, deemed “offensive” by powerful persons preclude, derail, or end careers.
This re-prioritization naturally led to a re-defining of the First Amendment’s objective as ridding America of “discrimination” by private individuals. No one should be surprised that this change of focus, which initially led the courts to disallow laws permitting discrimination by private individuals against what came to be known as “protected classes,” ended in Justice Kennedy, writing for the Supreme Court’s majority, damning and well-nigh criminalizing the very motivations of such discrimination. How easily did “Congress shall make no law” become “Congress really must make a law…” !