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Amending the First Amendment

by Chauncey Tinker – 27 Mar 2019

[Second in a series of posts on the subject of the limits of freedom of speech. The first post was on the subject of harassment and can be found here]

The US Constitution has served very well to protect freedom of expression in the US. It is also very influential beyond that great nation, as it set a standard for the protection of freedom of speech which has been much envied but perhaps never matched in another nation. When the founding fathers created the US Constitution they had an advantage in that they were creating a nation from scratch; the US Constitution is the very foundation document of the United States of America, and as such it also carries a weight that mere laws passed by successive governments do not possess.

I am not sure if there is much point in a layman such as I suggesting that the US Constitution should be amended, particularly since I am British (considering the origins of that great nation such a suggestion would probably not go down so well coming from a British man). On a more serious note though, I feel that it is worth considering the idea that the US Constitution might contain a flaw, and I will now attempt to convince you, my reader, that it does. It could be that other nations might soon be about to re-consider the very fundamentals of their legal systems, and I hope that the United Kingdom will at some point do just that, so this could be a very worthwhile exercise in fact.

The First Amendment states:

“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.”

Here I want to focus just on the first part of that statement:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

Late 18th century America was a place that was home to a diversity of religious beliefs, but the Europeans who had settled in the colonies were for the most part all Christians of one sort or another. I assume that the founding fathers had a very particular aim in mind when they began by protecting the freedom of religion, I believe that they wanted to prevent the sorts of religious conflicts that had plagued the old countries of Europe in the past. Those conflicts had indeed continued in the American colonies, for example from 1659-61 there were a series of hangings in Boston, Massachusetts of a group of Quakers who became known as the Boston martyrs. It may perhaps have been the fact that many had fled to America to escape from religious persecution that give birth to the idea of “freedom of religion” that later came to be enshrined in the US Constitution.

No doubt the US Constitution was also later influential in the phrasing of the Universal Declaration of Human Rights which was proclaimed in 1948:

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.

The obvious problem with the concept of the freedom of religion, firstly from a purely theoretical point of view, is that the practicing of a religion could threaten the rights and even the lives, of others. What if “manifesting his religion in practice” involved harming others or inciting the harming of others? Another article of the Universal Declaration of Human Rights protects the security of the person:

Article 3.

Everyone has the right to life, liberty and security of person.

Perhaps my own lack of religious belief enables me to see this obvious problem quite clearly, but unfortunately to many people the concept of “freedom of religion” seems so incontrovertible that they never even think to question it. Whether people will accept my arguments when argued from a purely theoretical perspective I am not sure, perhaps it is necessary to give some concrete examples of religions that it might be necessary for governments to legislate against.

The situation that we find ourselves in today in the 21st century is a very different one from the situation in America at the time of the Declaration of Independence. Waves of immigration from non-Christian countries have greatly added to the diversity of religious beliefs in our Western societies. The Islamic texts contain much incitement to discriminate against the disbelievers (for example the people of the book are supposed to be subdued and forced to pay the jizya tax, Koran 9:29). The supposedly “beautiful example” of Mohammed’s life was one that involved many violent acts against the disbelievers, through this example the religion encourages its followers to commit violent acts against the disbelievers.

Some people who do see this problem and agree with my assessment of the Islamic religion often will say that Islam is not a religion or not a true religion. However the Islamic religion certainly meets the requirements of most definitions of the word. From Oxford Living Dictionaries:

The belief in and worship of a superhuman controlling power, especially a personal God or gods.

Islam is a belief system with a god called Allah. It may also have aspects of a political and legal system, but it is certainly a religion as well.

Even if you do not agree with my assessment of the Islamic religion in particular (many are currently in denial about it), what is to stop another religion coming along in the future that encourages violence against those of other faiths, or worse perhaps there might be a revival of one of the ancient religions that practiced child sacrifice? Why on earth should such religions be protected from laws passed by governments? There are accounts of human sacrifice in the cultural practices of many societies, including several of the not so civilized cultures of central and southern America such as the Aztec and the Inca. Roman commentators criticized the Carthaginians and Phoenicians for the practice.


What the founding fathers had not foreseen, for all their great wisdom, was that in the future there might come along a religion that is inherently at odds with other fundamental rights and freedoms.

I therefore propose that we should amend the First Amendment of the US Constitution by simply removing the reference to religion so that we are left with this:

“Congress shall make no law respecting an establishment of religion, 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.”

[NB: Following our debate it was agreed to re-introduce the part prohibiting the establishment of religion.]

Of course some will raise the objection that the reference to religion is designed to prevent theocracies developing and banning religions on purely religious grounds, just because they prefer a particular religion and think everyone should be made to follow that religion. However I discount this objection because I think we can encompass such a protection for religious observance otherwise generally within a definition of “Freedom of Speech” (as long as such religious observance does not threaten the security of others).

Furthermore I feel very strongly that in general we should argue against the very concept of the “freedom of religion”, because religions can come in an infinite variety of different forms that may well be at odds with other fundamental rights and freedoms.


The first post in this series:

Limits Of Freedom Of Speech - Harassment

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