LSAT and Law: The First Amendment

Cant Get Right

So I’m studying some Constitutional Law and learning that WOW does the First Amendment not say what I thought it said (and what you almost certainly think it says).

Just going to leave this here. Use the careful reading skills you’ve learned studying for the LSAT and see if you can spot what I’m talking about.

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.

zdanlaw1991

Hey there @"Cant Get Right" ,
In regards to this amendment, are you referring to the idea that it is 'Congress' who can not make laws prohibiting these freedoms, but says nothing about our leaders creating executive orders.

jmarmaduke96

I had a similar thought, are you getting at the distinction between Congress being prohibited from taking certain actions and prohibiting the state governments from taking those same actions?

Law and Yoda

This podcast from RadioLab(NPR More Perfect) discusses the 1st amendment in such an interesting way. It is definitely worth a listen!
https://www.wnycstudios.org/podcasts/radiolabmoreperfect/episodes/most-perfect-album-episode-one-first-second-third-amendments

Cant Get Right

@zdanlaw1991 said:
Hey there @"Cant Get Right" ,
In regards to this amendment, are you referring to the idea that it is 'Congress' who can not make laws prohibiting these freedoms, but says nothing about our leaders creating executive orders.

@jmarmaduke96 said:
I had a similar thought, are you getting at the distinction between Congress being prohibited from taking certain actions and prohibiting the state governments from taking those same actions?

“Congress,” exactly!

This seems to have been written not as a guarantee of personal liberty but rather as a reservation of power to State governments. Jefferson, for example, wrote to Abbey Adams in 1804 saying:

While we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the States, and their exclusive right, to do so.

The fact that TJ needed to say this suggests there may have been more debate around the matter than the author I’m reading is letting on, but it still seems like the majority mostly took it for granted that the meaning of the 1st Amendment was primarily a reservation of powers to the state. At the time of the framing, 11 out of 13 states had religious qualifications for holding state office, and no one seems to have even considered a potential constitutional conflict.

It was only post-war with the passing of the 14th Amendment, which extended broad restrictions on State power, that the 1st really transformed from reservations of state powers into protections of personal liberty. So the 14th seems to bring us full circle, but just goes to show how powerful the 14th is. I’m still reading, but seems like a lot of what we understand about the Bill of Rights is heavily influenced by the implications of the 14th Amendment.

With careful LSAT-style reading, though, the original meaning of the 1st is actually not difficult to parse. I actually can’t believe I missed it, but was reading with a lot of assumptions and preconceptions. A good reminder for me to read carefully and without assumptions.

J.Y. Ping

@"Cant Get Right" If only we had a course that addressed this issue. Oh wait, we do now!
https://7sage.com/lawschool/lesson/con-law-1-7-individual-rights-part-2

The professor is Neil Siegel of Duke.

zdanlaw1991

@"Cant Get Right" Thanks for the insight! While I don't cover the BOR in such great depth, this would foster a great class discussion for my American government students.

Cant Get Right

@"J.Y. Ping" said:
@"Cant Get Right" If only we had a course that addressed this issue. Oh wait, we do now!
https://7sage.com/lawschool/lesson/con-law-1-7-individual-rights-part-2

The professor is Neil Siegel of Duke.

Yeah, these are great! Very straight-forward and concise—not what you normally get from law Professors, lol. Definitely using to help guide this con law paper I’ve got to do for spring break. More generally though, it’s just so important to find and take advantage of resources like this that cut through the crap, present things clearly, and just tell you what’s going on.

Cant Get Right

@zdanlaw1991 said:
@"Cant Get Right" Thanks for the insight! While I don't cover the BOR in such great depth, this would foster a great class discussion for my American government students.

It would be interesting to see how that goes. If you ever throw that out there and remember this thread, let us know!

J.Y. Ping

@"Cant Get Right" Nice!

https://7sage.com/lawschool/lesson/con-law-1-4-federalism-plenary-v-enumerated-powers/
@0:40 Prof. Siegel gives a tip about Con Law exams. If you see legislation whose constitutionality is being challenged, pay attention to if it's a state law or federal law. If state, then you ask one question: does it violate independent limits on government power? If federal, you ask that question plus an additional question: is this law authorized by the constitution?

Good luck!

J.Y. Ping

@"Cant Get Right" said:
it’s just so important to find and take advantage of resources like this that cut through the crap, present things clearly, and just tell you what’s going on.

Because it's hard to Socraticize through a video.

Cant Get Right

@"J.Y. Ping" said:
Because it's hard to Socraticize through a video.

Yes! I think proponents of Socratic method forget that the Athenians decided it would probably just be best for everyone if they killed him.

jmarmaduke96

@"Cant Get Right" Coming from a recent philosophy major, I sympathize with the Athenians...

Sami

@"Cant Get Right" said:

@"J.Y. Ping" said:
Because it's hard to Socraticize through a video.

Yes! I think proponents of Socratic method forget that the Athenians decided it would probably just be best for everyone if they killed him.

Okay, this is too funny!

GoVaCaMaDaAqNe

Ive always been fascinated by the free exercise clause....more and more elite law schools are implementing free exercise clinics protecting religious people from unnecessary govt prohibition/interference in their right to believe and live out publicly their religious convictions.