The First Word Revisited

Abstract

This piece examines the First Amendment’s meaning and breadth of application in light of its first word and subject, “Congress.”

For more than two hundred years, the presence and prominent placement of “Congress” in the Amendment has largely been overlooked or ignored by both judges and academics, who have generally interpreted the First Amendment as binding all three branches of government to its strictures, strictures defined independently of the Amendment’s subject.

Nonetheless, the “Congress” raises questions of interpretation: Does the First Amendment’s subject limit its reach to the Congress alone, leaving the President and the Courts unconstrained? Does it tell us something about the substance of First Amendment rights?

In this piece I provide a comprehensive basis for affirming current First Amendment law, notwithstanding that law’s failure to reflect the Amendment’s first word. To do so I address the two issues raised by the questions above, concluding as follows:

Meaning: “Congress” does not limit the substance of the First Amendment rights. The First Amendment, with the exception of the Establishment Clause, does not create new rights but instead declares rights that predate the Constitution. These preexisting rights were not limited to nor exclusively defined by legislative action.

Applicability: The Ninth Amendment applies First Amendment rights to the non-legislative branches. The textual reference to specific rights in the First Amendment should trigger the Ninth Amendment’s rule of construction for other rights not enumerated.

In addition to supporting our extra-legislative understanding of the First Amendment through a textual claim, my argument here has implications for other areas of Constitutional law. First, it makes the Ninth Amendment relevant as a source of law while avoiding the most common criticism directed at other Ninth Amendment theories: atextuality. Second, it suggests another avenue for anchoring contested interpretations of other declarative constitutional provisions, such as the Second Amendment.

(This abstract serves as a placeholder for the article, which I am currently revising. If you cannot wait until then, please contact me at [e-mail]. Comments are welcome)