It’s the year 2010 and a historian uncovers a shocking document. It turns out the Bill of Rights was never really ratified, so we have to start over (yeah, I know. Just work with me here).
Would the 1st Amendment pass as is? What, if anything, would you want to change? Could a difference in wording help? Hurt? Would people go along with your changes? Would there be a vicious political fight over the passage of this amendment?
Today, a Bil of Rights could never be as short and simple as the original. You’d end up with something as long, complicated and unworkable as the recent EU constitution.
If we were to write the Bill of Rights as it is interpreted today it would take volumes, because Congress regularly does make laws that have an effect on all of the elements of the 1st Amendment, and all of the other Amendments for that matter.
Were we starting from scratch it would be difficult to do better than what it already says, unless we could more clearly define the nature of religion and its relationship with the state.
I dunno…I think the 2nd Amendment is a bit ambiguous.
One problem is that modern political philosophy has a rather different view of government than the Enlightenment of the Eighteenth century. The biggest is that the State is now expected to be the champion of rights, rather than rights being presumed to be something the State merely needs to not interfere with. A new Bill of Rights would probably be a list of the things that the government is expected to be proactive in, not refraining from doing.
You could start over with Jame Madison’s original proposal:
Source: About James Madison - JMU
From THE CONSTITUTIONAL EQUALITY AMENDMENT (CEA)
“Section 2. All persons shall have equal rights and privileges without discrimination on account of sex, race, sexual orientation, marital status, ethnicity, national origin, color or indigence;” (see also Sec. 1, 3, 4, 5, 6, and 7.)"
This would need a new amendment into itself.
The First Amendment seems to work reasonably well as it is. Although I would be tempted to spell out the rules against required prayers at public school functions, that’s probably better left alone.
We could nix free exercise. Free exercise basically died in the Supreme Court in 1990 anyway, and I’d wager that few on this board even noticed. All that remains of free exercise is the prevention of laws requiring specific religious beliefs, or requiring/prohibiting specific religious practices–laws that are unconstitutional under the other sections of the First Amendment anyway. And it’s for the better, since immunity from general laws because of private beliefs was a pretty kooky concept to begin with.
We can also nix freedom of the press. Whatever distinction there used to be between “the press” and individual speakers has pretty much been obliterated by the internet.
Instead of the establishment clause as-is, we should just require that all laws have a secular purpose. Simpler and clearer.
And, with all the room we’ve saved, we can be much clearer about what we mean by free speech. There’s a lot of work to be done there, but we can start with protecting all defamatory speech since defamation actions are silly and useless. And declare that money is speech, but that regulations on political spending are subject to reasonable regulation.
That’s a start.
Some changes I would make:
I would probably rewrite it to look something like this (although worded better if this were official)
No level of government (federal, state, or local) shall:
[ul]
[li]Create a religion.[/li][li]Have an official religion.[/li][li]Create laws, rules, regulations, or ordinances that favor one religion over another.[/li][li]Create laws, rules, regulations, or ordinances that govern how people worship, with the sole exception that any religion that sacrifices animals must have them killed in the quickest and most painless way possible.[/li][/ul]
Bans on religious speech, displays, or articles of clothing may only exist as part of a wider ban. For example, clothing with religious messages cannot be banned, but a ban on clothing that contains any messages, which would include religious messages is acceptable.
Religion may not be used to deny anyone under 18 standard, mainstream medical treatment.
Freedom of speech may not be abridged, except in the following cases:
Liable.
Slander.
Fraud.
False alarms.
Direct orders to break the law.
Child pornography
This one would be tough for me to rewrite without a long list of restrictions, so I’ll only say for now, that I would make people’s personal lives off limits to the press.
People shall have the right to peaceably assemble. If the assembly is large and would interrupt foot, bike, or automobile traffic, the local government, or state government has to right to require permits. If the assembly is small and does not interfere with traffic, nor interferes with surrounding businesses, the assembly of people may not be relocated or broken up. If the purpose of assembly is to picket, they may do so, provided that they are either on private property with permission of the owner, or on public property. Picketers may not interfere with foot, bike, or automobile traffic.
I’d leave this as/is.
I agree that this is true, at the same time I think it is to our everlasting detriment.
As for the OP, I’d like to insert some language clarifying that the restriction is only on the establishment of a state religion. People who think that the amendment prohibits things like the 10 commandments being displayed on a courthhouse wall or Christmas plays in a public school are, IMO, idiots, and such cases are an unconscionable abuse of the freedoms protected by the 1st Amendment. MHO only, and I know that the courts have not always agreed with my position. The courts are wrong.
Amendment 1: I can has free speeches, assemblies, and cheezeburger.
If the whole thing were being redone, we could just ratify the International Bill of Rights. Relevant portions being:
Article 18
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20
I don’t see this as nessecary. The act of making and distributing child pornography already violates the law in ways that have nothing to do with it’s existence as a form of speech. For the same reason, there is no need to specifically unprotect snuff films as a form of speech as it’s illegal to murder people. And I think laws regarding the possesion of possible child pornography on computers already has an overly burdensome chilling effect on speech, privacy, and due process.
“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.”
I think this says it all-I wouldn’t change a word.