In this era of misinformation and threats to free expression the ability to speak openly and truthfully is more essential than ever. Concerned for what we view as a recent erosion of respect for First Amendment rights, we’ve commissioned a new series of short essays that will serve as a platform for authors to share their own stories. The following piece is a part of that series. We asked authors to respond to the prompt, “What does the First Amendment mean to you?” and, in the spirit of the First Amendment, we’ve encouraged the authors of these essays to give imaginative voice to what they believe these freedoms mean today. (The views expressed are of course solely those of the author and are not intended to reflect the Guild’s position on any issue.)
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.
Dissent Shall Set You Free
by T.J. Stiles
I am free to write these words, and you to read them, because of freed slaves. Without them, there would be no First Amendment as we know it.
Yes, the Founders had something to do with freedom of speech, and of press, religion, assembly, and petitioning the government. But not as directly as you probably think. The First Amendment begins, “Congress shall make no law.” In 1833, Chief Justice John Marshall took “Congress” literally in Barron v. Baltimore, a case involving the Fifth Amendment’s takings clause. Referring to the Bill of Rights as a whole, he wrote, “These amendments contain no expression indicating an intention to apply them to the State governments.” States could do as they liked.
And so many did. In New England, state support for churches persisted into the nineteenth century. Until after the Civil War, North Carolina required voters to profess faith in Christ. Southern states banned abolitionist literature and speeches. White Southern sensitivities about antislavery writings even led the postmaster general to ban them from the mail, and the U.S. House of Representatives to bar abolitionist petitions.
What breathed life into the First Amendment was a cycle of resistance, repression, and federal response, driven from the bottom up. It is a story of unintended consequences, beginning in the Civil War.
“All knew,” said Abraham Lincoln in his second inaugural address, that slavery “was somehow the cause of the war.” But neither side knew that the enslaved would take the initiative once fighting began. They conducted what historian Steven Hahn calls the greatest slave rebellion in history, to the astonishment of Southern whites. African Americans fled to Union lines, aided federal forces, and fought as soldiers. They progressively destroyed slavery in actual practice. Lincoln was a great man, but his Emancipation Proclamation followed where black people led.
After the Confederate defeat, many whites assumed that Southern society would be restored, minus only the legal technicality of slavery. Lincoln’s successor, President Andrew Johnson, declared, “White men alone must manage the South.” He did not consider it a controversial opinion.
But African Americans asserted themselves, personally and publicly. Black veterans returned home and refused to act like slaves. Freed people defied old masters. They left plantations to look for work and family, and organized schools for themselves as well as their children. They received support from Northerners such as Carrie Highgate, a black woman from Syracuse, New York. She lost a brother in battle during the war; afterward, she, her mother, and three siblings went to Mississippi to teach in the face of white hostility. Still other African Americans organized local political clubs, held mass meetings, and petitioned Congress.
Startled, white Southerners responded with repression. State governments authorized by President Johnson passed “black codes,” continuing many aspects of slavery. The Ku Klux Klan and similar groups killed or terrorized black leaders. In 1866, the police in Memphis clashed with black veterans and stormed black neighborhoods; in New Orleans, police assaulted a black political procession. Both incidents produced enormous casualties. From Kentucky to Louisiana, African Americans pleaded for federal protection.
Most Yankees were not racial egalitarians, but it infuriated them that former rebels could crush loyal blacks with impunity. President Johnson vetoed every bill that was intended to shield former slaves. But his intransigence, and Southern violence, united Republicans and pushed them further than they had ever imagined. They enacted Radical Reconstruction, a revolutionary program of political racial equality.
The Civil Rights Act of 1866, the Freedmen’s Bureau Reauthorization, the Reconstruction Acts, the Enforcement Acts: This was the invention of civil rights, civil-rights enforcement, and the principle of race-neutral citizenship. African Americans became voters, jurors, state legislators, even congressmen and senators. The federal government enforced individual rights for the first time, prosecuting civil-rights and voter-suppression offenses.
It would not last, of course. In 1877, wartime belligerence had cooled, and Northern voters and politicians gave up on Reconstruction. It would take the civil rights movement of the twentieth century to revive it. But Congressional Republicans of the 1860s wrote their new principles into the Constitution. In the Fourteenth Amendment, they established a universal definition of citizenship, and guaranteed individual rights and equal protection of the law. This was more than a matter of racial equality, important as that was. It also turned the Constitution into an effective charter of civil liberties. John A. Bingham, perhaps the primary author of the amendment, told the House of Representatives that it “was simply a proposition to arm the Congress of the United States, by the consent of the people, with power to enforce the Bill of Rights.”
This was a clear statement that the drafters intended this amendment to apply the Bill of Rights to state as well as federal law. But the courts declined to recognize this doctrine of “incorporation,” as it’s called, for decades. Then, in 1920, New York state convicted a radical socialist named Benjamin Gitlow of publishing a tract that called for the overthrow of the government. The American Civil Liberties Union appealed his case to the U.S. Supreme Court, arguing that the Fourteenth Amendment guaranteed his freedom of speech. In 1925, the court upheld his conviction, earning a dissent from Union army veteran Oliver Wendell Holmes—but it agreed with the ACLU’s argument about the Fourteenth Amendment and freedom of speech, and adopted the incorporation doctrine.
I think of this history when I write, when I challenge orthodoxy, when I challenge my own assumptions in my work. I am free because the poorest, the most oppressed, the most discontented in American society resisted. We are all free because the enslaved refused to be slaves, because the freed insisted on freedom, because uneducated, landless, and derided African Americans forced the nation to react to their struggle. Then, after that victory fell dormant, a left-wing revolutionary and his ACLU lawyers demanded that it be reawakened. The comfortable do not feel the limits of their freedom, and the conventional do not test them. It falls to slaves and radicals to free us all.
T.J. Stiles is a member of the Authors Guild Council. He has received the 2016 Pulitzer Prize for History, the 2010 Pulitzer Prize for Biography, a 2011 Guggenheim fellowship, and a 2009 National Book Award for Nonfiction.