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January 29, 2005

First freedom

The freedom of religion is sometimes referred to as the "first freedom," because it appears first in the Bill of Rights.

A couple of weeks ago, James Taranto and others skewered the ACLU for insisting that freedom of speech was the first freedom. They pointed out that the ACLU had quoted the First Amendment with an ellipsis, leaving out the religion clauses. Skewering the ACLU is always fun, but it made me wonder. Why would anyone think that our rights are listed in order of importance?

Because I am something of a Hamiltonian, I have to say that none of the provisions of the Bill of Rights is our "first freedom." Our fundamental rights were protected by the original Constitution (pre-Bill of Rights) with what Madison referred to as "auxiliary precautions," such as the separation of powers with checks and balances, a grant of limited national legislative power, a strong executive, an independent judiciary, an extended republic. As Hamilton wrote in Federalist No. 84, "the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS." (I will concede, certainly, that experience has shown the necessity of a Bill of Rights, but it's not as if we had no protection of our rights before the Bill of Rights was added to the Constitution.)

Second, I suppose it would be a cheap shot to point out that the First Amendment wasn't even originally the first -- the original Bill of Rights had twelve amendments, the first two of which were not ratified (though the second was ratified 200 years later as the 27th Amendment). But it is a cheap shot that I am not above taking.

So I'd like to explore the idea that the Bill of Rights was drafted by listing the rights in order of their importance. Here are the rights (slightly paraphrased):

No laws respecting an establishment of religion.
No laws prohibit the free exercise of religion.
No laws abridging the freedom of speech, or of the press.
No laws abridging the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

The right of the people to keep and bear arms.

No quartering of soldiers in any house in peacetime without the owner's consent or in wartime except as provided by law.

No unreasonable searches and seizures.
No warrants may issue without probable cause.

Presentment or indictment of a grand jury normally required for capital or "infamous" crime.
No double jeopardy.
Right against self-incrimination.
No deprivation of life, liberty, or property without due process of law.
No taking of private property for public use without just compensation.

Speedy and public trial in criminal cases.
Right to be informed of the accusation, to be confronted with the witnesses, to have compulsory process, and to have the assistance of counsel.

Right to jury trial in civil cases.

No excessive bail.
No excessive fines.
No cruel and unusual punishment.

The Ninth and Tenth Amendments state that this listing doesn't mean others don't exist and the powers not delegated to the United States are reserved to the states or the people.

Now, if the Bill of Rights lists our rights in order of importance, the right to bear arms (that bane of liberal existence) is more important that the right to be free of unreasonable searches and seizures. The right against quartering of soldiers in peacetime is more important than the right against self-incrimination. The right to a jury trial in civil cases is more important than the right against cruel and unusual punishments.

And why wouldn't the same principles apply to the articles of the original Constitution? The Congress (Article I) is more important than the President (Article II), who is more important than the judiciary (Article III). The arrangement is more likely to reflect their closeness to the people than any comparative importance. We do speak of co-equal branches of government, after all.

When you write a shopping list, do you put the most important items at the top, or do you organize them in a way that helps you when you're looking for them in the store?

My point here is not to denigrate the freedom of religion or freedom of speech. Not at all. It is simply to poke fun at people who read way too much into the order of a list.

UPDATE (1/29): For some reason, I forgot one of the most obvious lists, the Ten Commandments, which we read in parshat Yitro in shul this morning. One can make the case, I suppose, that the first commandment, "I am the Lord your God," is the most important because all the others are based on it. I always tell my kids that the fifth, "Honor your father and mother," is the most important. But even I would admit that "You shall not murder" -- the sixth -- is more important than the fifth. So again, we're talking about a list that is not necessarily in order of importance.