Steven Reske: Bruce Castor needs lesson on the First Amendment – TribLIVE

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Pennsylvanias Bruce Castor choked on the First Amendment. Unfortunately, while his performance was nearly universally panned, no critics mentioned one jarring error. His gaffe occurred in the very first moments of his opening salvo and was on an issue foundational to President Trumps defense. While at first blush his factual misrepresentation might appear narrow, it is not minuscule. Rather, Castor constructed a First Amendment analysis laid on a factually erroneous foundation and ending with a reductive plea which boils down to; its first so its important. Castors problem, though, is simply, the First Amendment wasnt meant to be first.

Its not surprising that Trumps defense attorneys relied on the First Amendment. What is surprising is, given this reliance, they have so little understanding of its history. Castors opening statement incorrectly stressed repeatedly Now its not an accident its not an accident that the very first liberty in the first article of the Bill of Rights is the First Amendment which says Congress shall make no law abridging freedom of speech, etc. Congress shall make no law. The very first one. The most important one. Actually, it is first because of exactly that, an absolute accident.

Todays First Amendment is a combination of what was originally intended as the third and fourth of 19 amendments James Madison introduced on June 8, 1789 as the Bill of Rights. The House of Representatives agreed to 17 of Madisons proposals. The Senate then cut and condensed these 17 down to 12. At this point todays First Amendment became the proposed Third Amendment.

Congress then approved these 12 proposed amendments and they were sent to the existing states for ratification. The proposed first two amendments, however, failed to garner three-fourths of the state legislators votes required for ratification. Thus, on Dec. 15, 1791 what Congress proposed as the Third Amendment became todays First Amendment by mere happenstance of history.

It may be worth noting that the proposed Second Amendment concerned congressional compensation. While it would take more than two centuries, it passed in 1992, becoming the 27th Amendment. The proposed First Amendment concerned the number of members from the House of Representatives allocated to the states. Had it passed, todays House would have more than 6,000 representatives, more than 10 times its current size. Maybe things worked out for the best.

The First Amendments speech clause, only one of its five clauses, is vital to, and certainly a cherished cornerstone of, democracy. But if Castors shoddy legal analysis leads him to conclude todays 10 amendments of the Bill of Rights progress purposefully in descending order of importance, how does he explain the role played by the highly placed Third Amendment? No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner. That ones not exactly at the forefront of our constitutional conversation.

In fact, an even closer look at the First Amendments speech clause in isolation from its other four clauses reveals even more trouble with this line of thinking. The speech clause Congress eventually approved as its proposed third of 12 amendments didnt even start out as Madisons third. He placed the anti-establishment, and free exercise, of religion clauses alone in his Third Amendment. Madison merely saw fit to put the freedoms of speech, press, and assembly in his Fourth Amendment.

Madison is referred to as the Father of the Constitution. His proposed Fourth Amendment protecting speech reads; The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. It was back when the Senate cut and condensed the Houses 17 proposed amendments down to 12 that Madisons speech protection moved up to third.

So Castor really relied on a speech clause that was in the fourth, then in the third, and then somehow, after navigating 2 years of the political process, ended up in our First Amendment. His constitutional misapprehension is enough to leave one speechless.

Steven Reske is an attorney and former legal editor-at-large of Minnesota Law & Politics.

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