Pornography, Texas, and the Origin Myth of the First Amendment

Contrary to popular belief, the Founders did not put the First Amendment first because it was the most important.

Last week, in a 2–1 ruling, the U.S. Court of Appeals for the Fifth Circuit largely allowed to go into effect Texas H.B. 1181, a law requiring pornographic websites to verify the age of visitors. A lower court originally blocked the law, finding that it was probably unconstitutional.

Judge Patrick Higginbotham dissented, arguing that the lower court was right. According to Judge Higginbotham, James Madison drafted the Bill of Rights, “ordering them in his perceived scale of value to their adoption by the States.” In other words, the First Amendment is first for a reason.

“The years that followed,” Judge Higginbotham added, “vindicated Madison’s placement of the First Amendment with its rails for the paths of government, married to the individual’s right of identity and self-expression in their myriad forms.”

Nothing could be further from the truth.

The Origin Myth of the First Amendment

More than any area of law, constitutional law is full of myth. It was born out of it. You know the story.

After the Constitutional Convention adjourned on September 18, 1787, Elizabeth Willing Powel ran up the steps of Independence Hall and asked Benjamin Franklin, “What have we got a republic or a monarchy?” Franklin famously replied, “A republic if you can keep it.”

Something like that might have happened. A delegate’s September 18 diary entry memorialized the words of the exchange. But the Library of Congress says the story is “probably fictitious.” We also have no evidence that the exchange happened outside Independence Hall (although that certainly adds to the drama).

And, years later, Ms. Powel couldn’t remember the exchange about, as she strikingly put it, “the goodness, and probable permanence of the constitution of these United States.”

Second to the Franklin/Powel story there is probably no more stubborn myth than the one Judge Higginbotham invoked: that the First Amendment is first in the Bill of Rights because the Founders understood it to be the most important.

It’s been making the rounds for years now. Judges repeat it. Legislators repeat it. Rupert Murdoch repeats it. The New York Times repeats it. Even Dave Chapelle repeats it.

“The First Amendment is first for a reason,” Mr. Chapelle told a crowd at the Kennedy Center. “The Second Amendment is just in case the First one doesn’t work out.”

I hate to report, the First Amendment is not first for a reason — at least not that reason.

The Founders Rejected a First Amendment at the Convention

When Franklin walked out of Independence Hall and maybe (or maybe not) spoke to Ms. Powel, he had just left a Constitutional Convention that repeatedly refused to adopt the kinds of individual protections that we find in the Bill of Rights today.

With days left in the Convention, George Mason said that the proposed constitution should contain “general principles” about rights. A bill of rights, he said, would “give great quiet to the people.” In fact, Mason was convinced if they had “a few hours,” they could draft a bill of rights.

But Mason’s motion was defeated. On at least two other occasions at the Convention, delegates tried to sneak in provisions protecting freedom of the press. But neither of those attempts were successful either. So while Ms. Powel might have had a republic at the end of the Convention, she did not have a First Amendment.

Madison Did Not Put the First Amendment First.

After the Convention , early Americans were clamoring for a bill of rights to protect their First Amendment rights. This central government the Founders had just made had too much potential to get up to no good.

Madison, once an opponent of a bill of rights, became its indifferent champion. When he introduced what would become the Bill of Rights on June 8, 1789, he did not intend on creating a bill of rights at all. Madison intended for his amendments to be placed in the body of the Constitution itself.

So the “First Amendment” as originally planned was meant to be dropped unceremoniously after the ex post facto clause in Article I, Section 9. It would have read “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

Madison also proposed a second press clause, in case the first didn’t do the job. It would have made clear that the new federal government and the states could not interfere with freedom of the press. That would have ended up even further down in Article I had Madison had his way.

These amendments, he said, were “neither improper nor altogether useless.”

Congress Did Not Put the First Amendment First.

Nor did Congress intend to put the First Amendment first. The House stuffed Madison’s proposals into seventeen amendments. The Senate then distilled those down into twelve. It was those twelve amendments that went to the states on October 2, 1789.

By October, Madison’s religion, speech, press, assembly, and petition clauses had all been lumped together and placed in “Article the Third.” It was behind an article relating to proportional representation, which was first, and another relating to congressional pay, which was second (and was later ratified 202 years later as the 27th Amendment).

Over the next two years, the First and Second Amendments came up short in the states. It was not until December 15, 1791, that three-fourths of the states ratified the last ten of the twelve amendments. Early Americans indifference to congressional pay and proportionality meant that today’s First Amendment became the First Amendment.

That’s all there is to it.

Does any of this matter?

So, contrary to Judge Higginbotham, and contrary to Mr. Chapelle, the First Amendment is not first because it is most important. Madison didn’t put it there. His placement of it hasn’t been vindicated. It found its way there by total happenstance.

But we tell ourselves these kinds of myths for a reason. So even if the facts aren’t entirely right, even if Ms. Powel didn’t rush up to Franklin on the steps of Independence Hall, maybe indulging these myths isn’t all bad — not least in a country that has such difficulty with internalizing civics lessons.

After all, when Madison gave his speech to Congress in 1789, he identified the three “great rights”: the right to a trial by jury, freedom of religion, and freedom of the press. So even if Madison didn’t put the First Amendment first in that speech or anywhere else, he understood that it was one of the most important.

Maybe that Madison’s First Amendment ended up first was neither purposeful nor happenstance but rather serendipity. That the First Amendment ended up first put into motion something of a self-fulfilling prophecy. We value speech because it is first, and it is first because we value it.

Because of its placement, since 1791, freedom of expression has become so closely associated with the Constitution that it has become uniquely American. So, even with all our failings, we can still claim to live in “a country that affords the strongest legal protection to political speech of any nation in the history of humankind.”

In the end, the First Amendment’s position in our Bill of Rights reminds us that it is one of the great rights. It reminds us of the importance of free and open dialogue in a republic like ours. And let’s face it, it’s something we need to be reminded of.