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Wednesday, May 4, 2022

OPINION:

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America.
Click
HERE to read the series.


The Bill of Rights, now in many ways the core of the relationship between American citizens and their government, was a happy accident of political necessity, brought about finally by the voters in a congressional race in the Commonwealth of Virginia in 1788.

Those who wrote the Constitution, mostly James Madison from Virginia, believed the amendments to be unnecessary because the federal government was designed to be constrained. In fact, he originally argued that such an approach would be dangerous, because the specific listing of rights would lead to the conclusion that rights not listed did not exist.

Nevertheless, as the ratification debates proceeded in 1787, it became clear those who insisted on some substantial amendments protecting civil liberties would be able to prevent ratification, restart a new constitutional convention, or win outright majorities in the new Congress and amend the new Constitution.

For his part, Madison found himself running in a congressional district in Virginia’s Piedmont region against his friend James Monroe, who, under the sway of Thomas Jefferson, was firmly in the camp of those who believed the Constitution as drafted to be infirm in its defense of liberties.

The only way Madison could ensure the ratification of the Constitution as written — and win his race — was by promising to introduce the desired amendments himself. He rationalized it to Jefferson: “Safeguards to liberty against which no objections can be raised” should be introduced in Congress. “My own opinion has always been in favor of a bill of rights. At the same time, I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment for any reason than that it is anxiously desired by others.”

Leaving aside the shaky accuracy and post hoc nature of the explanation, Madison understood that without amendments making clear the essential nature of the preservation of liberties, the Constitution and the new nation would likely dissolve.

Armed with this clarity, and having made promises during the election to himself introduce such amendments during the first Congress, Madison won his congressional race by a little more than 300 votes (out of 2,200). He was as good as his word, submitting what we now think of as the Bill of Rights within a few weeks of the initiation of the new Congress.

In other words, the question of government regulation of speech came down to a single election in Virginia in 1788 between two future presidents. God, providence and luck were on our side because what was at the time a radical notion that citizens should be free to speak their minds without fear or retribution from their government clearly shaped the United States that we know and cherish today. 

We find ourselves, 234 years later, at a similar moment.

Our own federal government has created a Ministry of Truth (official name: Disinformation Governance Board) led by three unelected senior government employees. The stated purpose of the organization is to combat disinformation — whatever that is — ostensibly and initially from foreign sources.

The First Amendment — called for by President Washington in his first inaugural address and drafted by Madison more than two centuries ago — says in its entirety: “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.”

If a government board, which was undisclosed until last week and which was created by an agency whose history is marked by a tenuous relationship with other parts of the Bill of Rights (how are searches at airports not violations of the 4th Amendment?), doesn’t seem like an abridgment of your freedom of speech, what does?

The Constitution does not protect you from speech you don’t want to hear. It does not protect you from disinformation, misinformation, canards, prevarications or just plain lies. What it does protect you from is government trying to manage what you can say, and by extension, what you can hear.

Even the current regime, weakened and doddering as it is, must understand that this sort of thing is way out of constitutional bounds.

It is possible the Republicans are going to win the elections this November, take control of the House, and preside over the Senate as soon as January. In 1788, no one could say with certainty what was at risk in that election. The same is true now. Just as the Virginia voters did in 1788, voters today should make sure that their representatives are defenders of and advocates for free speech and other liberties.

• Thomas Pyle is the president of the American Energy Alliance and cohost of The Unregulated Podcast.


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