Commentators frequently assert that First Amendment rights of speech, religion, press, assembly, and to petition the government are Americans’ most important rights.
One of the arguments offered in support of this position is that the Framers of the Constitution placed these rights first in the Bill of Rights. In her January 28, 2021 Wall Street Journal op-ed “Joe Biden’s Choice on Religious Freedom,” Mary Vought wrote: “The Framers made religion the first freedom in the Bill of Rights for a reason.” On February 9, 2021, former President Trump's lawyer Bruce Castor made the same argument regarding freedom of speech at the impeachment trial.
The history of the Bill of Rights, however, shows that this argument is erroneous.
The Bill of Rights approved by the Framers in the nation’s first Congress on September 25, 1789, and submitted to the states for ratification had twelve amendments rather than ten.
In that proposed Bill of Rights, the First Amendment concerns a formula for determining the size of the House of Representatives. This amendment was never ratified. The Second Amendment in that Bill of Rights concerns changes to Congressional pay. This amendment was ratified -- but not until 1992 -- as the Twenty-Seventh Amendment.
After those two amendments, that proposed Bill of Rights has as its Third through Twelfth Amendments the ten amendments that were ratified by the states in 1791 as the First though Tenth Amendments.
In other words, the Framers placed what we now know as First Amendment rights in the Third Amendment – not in the First Amendment – of their proposed Bill of Rights.
First Amendment rights thus may be our most important rights, but not because they are first in the Bill of Rights.
