Did the Founding Fathers get this wrong? 

"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 of the people peacefully to assemble, and to petition the Government for a redress of grievances."

That's it. That is the entire First Amendment to the US Constitution. One sentence. And hundreds of years and thousands of pages of legal doctrine have issued from that short statement. 

We were all taught about the First Amendment at some point in school. But not all of us had the desire or access to attend law school and study the First Amendment closely. That's where I come in. 

Hi, I am Jennie, and I'm the nerd who went to civics camp when I was young and went on to minor in Public Service in college. I graduated from law school a lifetime ago (or 20 years), and my favorite classes involved Constitutional law. Hell, I have even had a brief that I wrote argued in front of the US Supreme Court. But I didn't love law school, so even though I didn't pursue a career in law, my legal education has stayed with me for 20+ years now, and I can share my knowledge with you, In the words of the Indigo Girls, I got my paper and I was free. This is not to be construed as legal advice, nor will you be able to pass your Con Law I exam based off of this information alone.

The Knowledge Is Power series is intended to provide information and context about the First Amendment - what it is, who it applies to, and how we got to where we are today.

What is the First Amendment?

"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 peacefully to assemble, and to petition the Government for a redress of grievances."

The First Amendment is generally considered to include 4 freedoms:

• Freedom of religion (and both clauses included under that protection)
• Freedom of speech
• Freedom of the press
• Freedom of assembly

We will be taking a look at each of those in more depth, in other articles to come in this series.

Here's how the Constitution works and is structured:

The basis of the Constitution – before we get to any amendments – sets up the basic structure of US government.

Article I establishes the legislative branch, setting up both houses of Congress and defining it and its powers.

Article II sets the structure for the executive branch and explicitly states the power of the President. This is where the Emoluments Clause is – the one that prevents the President from making a profit off of, well, being President. Trump wasn't the first to violate it, but he certainly has been the most egregious and frequent violator of the Emoluments Clause. And, more importantly, he typically has the support of Congress to not look further into the matter – especially in 2025, when he has been consolidating power from the other two branches of government into the Executive Branch. But we are not here today to look at the articles of the Constitution – we are focusing on the First Amendment.

Article III establishes the Supreme Court and lets Congress establish lower courts, which has evolved into our federal judicial system. Note, it does not specify the number of justices on the Supreme Court.

Article IV – Full faith and credit clause gives power to the states, but the Dormant Commerce Clause regulates those powers This article also confers the ability to conduct interstate commerce – such as sales of goods across state lines.

Article V – ability of Congress to amend the Constitution

Article VI – basically extends the Articles of Confederation into the Constitution. An interesting note is that every member of the federal government must be sworn in under oath but swearing in under a religious test should never be required in order to serve in the government – pretty much the only place in the Constitution that mentions religion outside of the First Amendment. Also contains the Supremacy Clause, which states that the US Constitution is the supreme law of the land and supercedes state's rights.

Article VII – Ratification – only required 9 of the original 13 states to adopt the Constitution.

Now, there were 10 amendments issued almost immediately after the articles of the Constitution – we know these as the Bill of Rights. It takes quite a bit in today's climate to amend the Constitution. There are 27 amendments in total, and the most recent one was added in 1992.

And in this series, we are only discussing the first of those first ten. Most of us are familiar with the First, Second, and Fifth out of the Bill of Rights. The rest are very important, and are also at risk (as is the entire Constitution in 2025).

Who is the Constitution meant to protect?

So, now that we have discussed the structure of the Constitution, let's take a look at some other questions. Like who the Constitution applies to, and more importantly, why certain people have been excluded protections within the US Constitution (yes, MAGA – slavery was that bad). And let's take a look at how the Constitution is applied IRL and why you should care when your First Amendment rights are threatened. Let's also look at some real-life, contemporaneous examples of how your rights are in question right now.

On paper, the Constitution applies to every US citizen – except it didn't. The founding fathers explicitly excluded enslaved people, women, and poor white men. Basically, you had to be rich, white, and own land in order to be protected by the Constitution. Eventually, that all changed, and the formerly enslaved (and eventually women) were given the right to vote – but not until the Constitution was nearly 100 years old.

So, the Constitution is where white supremacy is enshrined on paper. Even though eventually other people besides white, land-owning men were afforded protection under the Constitution, the damage had been done. I don't know about you, but as a young, white girl in a middle-class, politically active family, I grew up with a strong reverence for the Constitution, although I never loved that it was not intended to protect me at the time it was written.

There are several protected classes under the Constitution, as has evolved through case law over the last almost 250 years. And under those, the amount of discrimination allowed varies from class to class, and there are varying tests to see what constitutes discrimination. But those all don't make an appearance until the 14^th Amendment. And that, my friends, is outside the scope of this series.

How did we get to where we are today?

The Constitution is applied to daily life through case law. From Marbury v. Madison – if you remember that from high school history class – to other cases, like Brown v. Board of Education (which ended segregation in 1954, nearly 90 years after slavery ended), to more recent cases like Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade. We will get to Roe in a bit. And with the current Supreme Court looking to overturn Obergefell v. Hodges (the case that granted the LGBTQIA+ community the right to get married) in their upcoming term, the Constitution affects all of us, every day, in nearly every way.

This is why I don't understand people who don't think that they are allowed to have strong opinions about politics. Or people who shun political conversations because “they don't know enough” or “everything is so political these days.” Well, Karen, yes, everything is, in fact, political. To quote one of my favorite Ohio politicians Nina Turner, “You don't do politics? Well, baby, politics is gonna do you.” 

How First Amendment lawsuits work

Someone sues someone else, claiming that their First Amendment rights have been violated. This case may or may not be heard by the USSC.

If the Supreme Court does hear the case, they then decide on that case, either for or against the person who brought the lawsuit. If it gets to the Supreme Court, the 9 justices (again, not mentioned in the Constitution) decide whether legal precedent – in other words, a case that has already been decided.

Then - and this is where your rights are currently at risk - Congress needs to codify that decision into law. Remember the wording of the First Amendment? “CONGRESS shall...” not the Supreme Court. If they don't enshrine the outcome of that decision into law, that ruling can be reconsidered later. We've seen this with Roe v. Wade being overturned by Dobbs v. Jackson Women's Health Organization, and this upcoming session we are expecting to see them reconsider Obergefell v. Hodges. Originalists didn't exist until the 70s and 80s, and now they have a super majority on the Court. Instead of interpreting the Constitution as it was originally intended (to be this malleable, dynamic document and structure of government), they just constantly want to amend it to suit their needs.

I mean, theoretically, the Court should consider varying legal theories whenever they reconsider a case and the law that was decided behind it. Case law is what currently governs our country, and that can be both good... and bad. Certainly the founding fathers wanted the Constitution to be a dynamic document, able to change with the times. And it has. Certain compositions of the Court have made some really landmark decisions. With the current composition of the Court, however, and the grab for power by the executive branch, I am not convinced that this is exactly what the founding fathers wanted. 

What are your rights?

Are they explicitly covered by the Constitution, and what can we do about it? 

What can we do about it? Remember, the First Amendment clearly specifies that Congress shall not infringe upon freedom of speech, establish a religion or prohibit the free exercise thereof, and shall not infringe upon the right to peaceful assembly and freedom of the press. They don't say anything about what the Supreme Court can decide. As Jon Stewart said earlier this week, “We use the Supreme Court as a crutch because the Constitution is so hard to amend.” 

This is where it gets really interesting. 

What you can do? Contact your representatives, as many times as it takes for them to hear you. Remember, the squeaky wheel gets the grease. Or, as my mother told me once, "If you're mad about it, do something about it." We'll discuss more of that in a later post. Vote in every election, like your life depends on it – because frankly, it does. Voting rights go hand in hand with your freedom of speech and your First Amendment rights.

But Jen, both parties are equally corrupt. OK, whatever, that's fine (mom eye roll). But one is not actively trying to make it nearly impossible for anyone except white, land-owning men to vote. One party is hell-bent on restricting the right to vote and putting it under the guise of electoral integrity. Yes, even in 2025. The amount of MAGA women I have seen in recent years calling for women to lose the right to vote simply boggles my mind. Every accusation is a confession.

How do we heal from this? 

Indulge in some self care, whatever that looks like for you.

Buy yourself a nice candle, if that's your thing. Buy yourself a nice bath bomb, if that's your thing. They don't have to be mine, but you deserve nice things. Take care of your mental health. Do something that soothes your soul, nourishes you spirit. And fucking vote, no matter how seemingly unimportant the issues on your ballot are. Learn about the issues, learn about the candidates, and vote. 

Don't forget – we still haven't seen the full Epstein files.