Secrets of the First Amendment – A Constitution and American History Update

May 23, 2024

Host: Hon. Sam Rohrer

Guest: David New

Note: This transcript is taken from a Stand in the Gap Today program originally aired on 5/23/24. To listen to the podcast, click HERE.

Disclaimer:         While reasonable efforts have been made to provide an accurate transcription, the following is a representation of a mechanical transcription and as such, may not be a word for word transcript. Please listen to the audio version for any questions concerning this dialogue.

Sam Rohrer:       Hello and welcome to this Thursday edition of Stand In the Gap Today, and it’s also our bimonthly focus on the Constitution and American history with a favorite guest that I know you all, like constitutional attorney, historian, author, and public speaker, David New. Now, Americans generally indicate, and we know this to be true, but to generally indicate that they love the Constitution. Isn’t that right? Yet I submit that in truth, American citizens and politicians love the idea of the Constitution. In other words, everyone who’s elected to office at any level, every judge, every magistrate, every bureaucrat takes an oath, even certifying before God. So help me God, to support and to defend the Constitution but then proceed to do what is politically expedient and work far harder at getting around the Constitution than being bound by the safeguards within the Constitution and that I say from my experience in office for almost 20 years and I think it’s greatly changed even not to the better over the last 10 years or so, but most all will say that the Constitution is bedrock to their freedoms, but then proceed to define, or should I say redefine freedom as they choose and attempt to use the Constitution as a tool to justify doing things which frankly violate the provisions of the Constitution.

Sam Rohrer:       They imply that the US government should obey the limitations placed on them and do what it says, but then personally and collectively embrace bribery and corruption to effectively tear down the fences or the walls of the Constitution that limit their desires whenever they determine to be convenient. And then sometimes they get concerned when government violates it. For instance, president Nixon and other presidents were impeached for allegedly violating the Constitution. Yet as much as they say they love the Constitution, most Americans know very little about it, about what it says but why it says what it says and can offer hardly one solid reason for why it was really written and adopted for over a generation. It has not been taught in our government schools, it’s not used as a document of standard law even within our schools of law or law schools. They don’t go there.

Sam Rohrer:       In this country, we used to have what we used to be called civic classes to teach our young people about government, but that was trashed long ago. For most Americans, the two most popular parts of the Constitution are the preamble, especially the first three words and the First Amendment. But why is that? How have we gotten to this point? And as we look specifically at the First Amendment within our constitution, what does it say and specifically what secrets or unknown or little known facts about the First Amendment might help us to actually better appreciate what we have before it has lost forever. So the title I’ve chosen to frame our conversation today is this Secrets of the First Amendment. Alright, David, new welcome back.

David New:         So nice to be with you. Blessings to everyone that’s with us today.

Sam Rohrer:       Yeah, David, let’s get right into this. This is a favorite discussion point for you and it’s a great one to talk about today. Let’s just start here. Can you cite first of all here a couple of significant dates just to get us in a timeframe associated with the US Constitution, specifically the consideration and adoption of the Bill of Rights, including the First Amendment, which is going to be our specific focus today?

David New:         Yes, for the First Amendment, the birthday for the First Amendment is June 8th, 1789. That is the day that Congressman James Madison proposed what would become eventually the First Amendment and the Bill of Rights. He proposed it in a House of Representatives, so that’s the birthday by the time it went through the Senate and the House and negotiating different wordings for various parts, the Congress finished the Bill of Rights and the First Amendment on September 24th, September 25th, 1789 and they sent them to the states for ratification and the states did ratify the bill of Rights finally on December 15th, 1791 and of course the state that put it over the top was the great state of Virginia.

Sam Rohrer:       Alright David, those are great. 1789 ladies and gentlemen. So it took a few years from our birth 1776, but anyway, those are important dates. Okay, David, there are three, what we’re calling secrets, little known facts that we’re going to in the body of the program today unveil. We’re going to talk about ’em, but to get us going on them right now, in the balance of this segment, would you identify the first of the three secrets we’re calling them concerning the First Amendment?

David New:         Yes. The first secret has to do with the ranking of the Bill of Rights. Most people believe that the freedoms that are listed in the First Amendment are the most important freedoms, which I would grant that probably is case, but they’re listed first in the First Amendment because of the most important freedoms and that is completely and totally false. When the Congress sent out the Bill of Rights to the States on September 24th and September 25th, 1789, they said to the state’s 12 Bill of Rights. The first two were not ratified, the third to the 12th were ratified and those became the first 10 amendments to the Constitution, what we call the Bill of Rights. So our initial First Amendment was third on a list of 12 and I might as well go ahead and tell you the whole story. When they were writing these amendments, they did not consider the First Amendment and all these rights in them to be particularly important. Most members of Congress were somewhat indifferent about the Bill of Rights. They didn’t think they need them, but James Madison said, look, we promised one of the biggest arguments against the Constitution was there wasn’t a Bill of Rights. And so one of the reasons they went forward is they said, okay, after the Constitution is ratified, if you will ratify it, we will prepare a bill of rights. And so that’s what happened.

Sam Rohrer:       Well that’s interesting because it’s actually almost sounds like it was a political compromise more or less in order to get that major document in place, these Bill of Rights came forward, but ladies and gentlemen they did happen. They did come forward. It did start out with 12, it ended up with 10. Alright, now that’s the first secret and when we come back, we’re going to begin to unfold further here. In the next segment we’ll talk about the second secret and I’m going to also ask David in that segment to tell us what the original first two were that were ultimately not included. We’ll talk about that just briefly as we continue through the program today. Secrets of the First Amendment for just joining us today. This is one of our bimonthly constitution and American history updates. Constitutional attorney David, you and I are here today and our theme is this Secrets of the First Amendment.

Sam Rohrer:       You get an idea of where we are headed and what we’re talking about. For the sake though of our consideration here today of the US Constitution and specifically our focus on the First Amendment, lemme just read a short portion from both and listen carefully and if you would each word each of them work very, very carefully chosen. Now here’s the preamble to the Constitution. It starts with these familiar words. We the people of the United States in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity do ordain and establish this constitution for the United States of America. Here’s the wording again of what is now the First Amendment. 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.

Sam Rohrer:       Now David, before you identify the second secret concerning the First Amendment, lemme just ask you a question from an historical perspective and this will be your perspective and it may be different for other people, but most Americans properly perceive that the United States has indeed been unique among nation’s past. Clearly it has yet I think most Americans today, David, my own thoughts are have become proud and cocky and think that we’re just better or smarter than everyone else and that by making a few changes, for instance, we can make America great again as an example, but have no clue to what actually made us great to begin with. So here’s my question. From an historian perspective as you are and constitutional attorney, why do you think the US Constitution as a document is so significant and such a fundamental part of making America great and why it’s important for us to now look back and consider where we are today?

David New:         There are several reasons of course. One is the subject of the Constitution is not Sam Rohr and it’s not David New, it’s not the individual American, with few exceptions, the subject of the Constitution is the United States government and the Constitution puts the handcuffs not on you and not on me, but on the government. That’s different. It doesn’t give the government power so much as it restrains their power. The second thing is that the Constitution is a government of the people we the people. Now where do the people get the right to right their own Constitution? Where did they get the right to have we the people, they get it from the Declaration of Independence, they get it from the Creator. The Creator gives them the right to form their own government and that’s exactly what we did. The third, very big difference concerns, religion. The United States Constitution has no power over religion within the states. It has very little power even over it itself when it comes to the subject of religion that is rare, that is extremely different. The United States Constitution clearly separates church and state even though the phrase is not in there. But it does because there’s no role for the clergy or for the church and the administration of the government. By definition you have separated church and state.

Sam Rohrer:       David, that’s an excellent summation ladies and gentlemen. You probably didn’t write that all down. Just make it a point. Now go back and listen to the program again. Stand in the gap and write down, or actually, because we’re now including transcripts of these programs on our website, you can actually go back and pick up exactly what was said. I encourage you to do so. Alright, David, let’s move here. Now the second secret again, before I get to that one, let’s go back and revisit this last segment you said started out with 12 bills of right basically ended up in 10. There were two that were dropped off. The states did not ratify them. Go ahead and identify what were those two that originally thought were so important, but in the end didn’t make the final cut, so to speak.

David New:         Sure. The original First Amendment had to do with apportionment. How many people you had to have in the state for each Congress member that you had in the House of Representatives. The original Second Amendment had to do with congressional pay. Our second amendment has to do with guns. The original Second Amendment had to do with pay of Congress. Now here’s the real crazy thing. If you want to read what the original Second Amendment looked like, what it said, it is quoted verbatim for you already in the US Constitution. It’s the very last amendment that has been ratified by the States. Amendment 27 is the same original Second Amendment written in 1789. In other words, it took the 27th Amendment of the Constitution over 200 years to finally get ratified. So all during all the wars, world War I, world War ii, Vietnam, Korea, you name it, we were ratifying the original Second Amendment and we finally got around to it in 1992.

Sam Rohrer:       And that is interesting. I may come back with a follow up, but let’s get this one in here. Now, the second secret of the First Amendment, what do you think that second secret, that thing that most people do not know about the First Amendment that they should know about?

David New:         Yeah, the second secret of the First Amendment has to do with the First Amendment, the text of it. It has been amended according to Article five. You’ve got to have three fourths of the states to amend the Constitution, but the First Amendment has been amended. Anyway, the Supreme Court did it. They violated Article five to the US Constitution when they did it, but they did it. They did it in 1940 and a case called Cat Well versus Connecticut. Now here’s what the Supreme Court did When you read the First Amendment that you just did, it has 45 words in it, exactly 45 and 1940, the Supreme Court amended the First Amendment to now say 48 words. It now says, now your copy doesn’t say this, the one that you have in your home, but on the Supreme Court’s copy, it says this, it says Congress and no state shall make no law respecting an establishment of religion.

David New:         They added three words and no state. They did that in 1940. So what effect did that have before 1940? There were about 30 cases that had to do with school prayer and Bible reading and religion in the public schools. About 30 of them. How many of them used the First Amendment? Zero. Not a single case used the First Amendment. Why? Because the most important word in the First Amendment is the first word. It’s Congress and it only limits the federal government. It has nothing to do with the state governments and has nothing to do with the public schools in the state government. Well now comes Kawell versus Connecticut in 1940 and they added three words. They amended the First Amendment and added three words to the First Amendment. Now it says Congress and no state. What does that have to do with religion and school? Everything.

David New:         The First Amendment was used, at least in the case that was published the first time that the First Amendment was used in the case involving school prayer and Bible reading was not until 1950 from New Jersey. You couldn’t use it before 1940. It only could have happened after 1940. Now the interesting thing in that case is that Judge Davidson, who was the trial level judge, about 42% of the case quoted the Holy Trinity Church case in which Justice David Brewer said the United States is a Christian nation. And Judge Davison quoted that and he said, school prayer and Bible reading are constitutional because of the Holy Trinity Church case. So you could see by adding those three words, the world of America changed dramatically and not for the better.

Sam Rohrer:       David, that is a fact secret or fact that probably very few people listening knew about or know about. But that in fact changed as you said, everything. And when we come back, we’re just about into this break here, I’m going to ask you to cite a couple of other examples. The impact that has been made that’s now impacted our nation in fundamental ways as a result of, well I’m going to say it this way, power grab by the Supreme Court and you can comment even on those words when we come back. So ladies and gentlemen, our theme today is this, secrets of the First Amendment, looking at some, well right now, a major change to the First Amendment that was made. I’m going to say unconstitutionally by the Supreme Court. When we come back we’ll talk further about that. Alright David, let’s go back and pick up a little bit where we left off.

Sam Rohrer:       You cited that it was the Supreme Court back around 1940 that made changes to the First Amendment. Most of our listeners would say, how in the world is that possible? If the various states have to make changes, three quarters of them to make a change in the Constitution, how then can a little group called the Supreme Court make a change that requires three quarters of the states to make a change? So let me just ask that question first. I would call that a power grab. What would you call it? Is that accurate? And how was it then if that’s the case that they did that and there wasn’t an extraordinary amount of opposition against it? And then give a couple of examples of major changes that have been made in matters of great visibility culturally in this country that have come as a result of the court making that usurpation of

David New:         Authority. Absolutely. The 1940 Cantwell versus Connecticut case represents a massive transfer of power from the states to the Supreme Court. That’s what that case represents, a massive transfer of power. Let me tell you how much. There are 50 states and each state has its own religion clause. You might as well erase it or cut it out. It’s worthless. That’s what Kentwell versus Connecticut did. There really is, there’s nothing a state can do with their own religion clause that the Supreme Court if it wanted to couldn’t reverse. What the Supreme Court did in 1940 is they reversed the framers of the Constitution. They wanted the federal government to have no power over religion. Now our secular friends tell us that’s because they created a secular government nonsense, absolute nonsense. The reason why the US Constitution has so little to say about religion is not because of secularism, a concept that didn’t even exist in 1787.

David New:         The reason it has little to do with religion is because all the power was left to the States, but they misrepresent that our secular friends. So what is the example? For example, some examples take all the 10 commandment cases. Can you have a 10 commandment display in front of your local county courthouse house before 1940? Forget it, your state constitution and laws would decide it after 1940. The First Amendment gets it. It doesn’t matter what your religion clause in your state says, forget about it. Now, not only did it transfer it to the Supreme Court, but it basically cut out the President and the Congress. Suppose the president of the Congress all agreed that prayer and school should be allowed. If states want it, well good luck. It doesn’t really matter. The Supreme Court has all the marbles. So the religion in the United States is effectively covered by the Supreme Court and nobody else.

David New:         Now there are things if the president and the Congress wanted to do, they could pass an amendment, send it to the States and give it to three four. And if three fours ratify it, then you can restore prayer that way. There is another way to do it. The president and the Congress could write a law stripping, stripping jurisdiction over prayer in the public schools from the Supreme Court and all federal courts. They could do that. They don’t have to use an amendment process. Read Article three, it’s called judicial stripping where you could take power away from the federal government from the federal to where they cannot hear the case. And they did that. The Congress tried to do it a lot in 1962. So those are some of the differences that it makes to have it the way it is now with this 48 words instead of 45.

Sam Rohrer:       And that is significant, David, but I got to ask you this because, and again, you may not have it at the tip of your tongue, but having a usurpation of authority, what the court did in 1940, at that point in time there were far more people in Congress as an example and in the states, state legislatures and all that who had an understanding of the constitution more so than they do now. So here’s my question. Do you know from history, did anybody of significance challenge that ruling by the court back then and reprimand or seek to do anything or did everybody just go quiet?

David New:         Here’s what happened In 1940, the Supreme Court said that they now have the authority to decide religion cases and that the First Amendment basically now has 48 words instead of 45, they use the 14th Amendment as the excuse. Now the 14th Amendment was ratified in 1868. It’s a good amendment. It was ratified to protect the civil rights of the former slaves. They were freed by the 13th Amendment. Their civil rights were protected in the 14th Amendment and now in the 15th amendment, the right of African-American men to vote was protected. So what did the Supreme Court do? They use the 14th Amendment as a pretext, a deception to take power away from the states. Now it took the Supreme Court 72 years to come up with that idea. Now it was current at the time that the 14th Amendment would make the US Bill of Rights applicable to the states.

David New:         One of the architects of the 14th Amendment believed that his name was John Bingham Congressman. The only problem is that was not the national interpretation. That was not the interpretation by the states. That was not the majority interpretation. And so it’s the number one lie that you will learn in the law school. If you go there, they will teach you that the 14th Amendment made the Bill of Rights applicable to the states. And it’s a bold face lie. One of the ways you can find out and expose the lie is to notice some interesting things. Well, there are 462 words in the Bill of Rights and the fifth Amendment has what’s called a grand jury clause. So if you wanted to accuse somebody of committing a capital crime to where you could execute that person, the federal government must get an indictment from the Grand jury.

David New:         Huh? Do the states have to do that? No sir. They are not bound by the grand jury clause in the Fifth Amendment. This contradicts what the Supreme Court says. How can a state execute? Somebody indict them for committing a capital crime? They file what’s called an information and that could start a capital case in the state and completely violate the Fifth Amendment to the Constitution because it wasn’t done by a grand jury. It is the largest number one lie an American’s law today. By the way, when John Bingham wanted the Bill of Rights applied to the states via the 14th amendment, he did not say to use the due process clause like the Supreme Court does today. He said his privileges an immunity cause in other words, they’re using the wrong clause.

Sam Rohrer:       David, that’s a great historical overview. Thanks for that and I’ve got to move on because we got to get this in here. Third secret, what is it?

David New:         This is one of the hardest ones for people to understand. Every 45 word in the First Amendment would be true and is true even if the amendment never existed. All of it’s true. You don’t even need the first Amendment. Everything it says that says that Congress can’t do this and this and this and this. All of that’s true. If the words were never there, why read Federalist Paper number 84 by Alexander Hamilton and he talks about why you don’t need a bill of rights. He says this, when the federal government, the Constitution is a government of enumerated powers, which means the Federalities can’t do it unless it’s listed. And unless you list something about religion in the US Constitution or the press or the speech or the right to assemble, Congress has no power to stop it in any way, shape or form. That’s why everything in the First Amendment is true. If it was never there, and that’s why it’s written in the negative it’s written, Congress shall make no law. It can’t be written in the positive because the restraint is on the Congress and they don’t have the power to do it and to begin with.

Sam Rohrer:       And David, that is powerful ladies and gentlemen. I hope you understand what David is saying when we talk about limited powers in government, it goes to the point of why is it limited? Well, it’s because the powers in its expansive form reside with the people and the states. The federal government was always a concern of the states and the people that it would again become to tyrannical and would usurp powers and tell people what they wanted them to do. So they were only given certain limited authority. That’s what David is talking about. But they have over time taken more and more the court case in 1940, changing the First Amendment was one of those gigantic ones to move power to the federal government. Well now we’re experiencing a lot of that. The impact of that. Stay with us. We’ll do some concluding comments when we come back.

Sam Rohrer:       Well, when we started the program today, I started, if you caught the program by citing the fact that in my opinion, the American people love the idea of the Constitution far more than the Constitution itself. And why is that? Well because ask anyone what is in the Constitution and they’ll really probably not be able to tell you if they can even tell you what it is. So they don’t know what’s in it. They’re certainly not going to generally tell you why our founders adopted it. Oh, you’ll find a couple but not measurable. And I’m going to say for our politicians at all levels, the oath of office to defend and support the Constitution has really become, I’m going to say purely perfunctory a relic in a tradition from the past. Now I took the oath of office here in Pennsylvania nine times. I know what that ceremony was like.

Sam Rohrer:       I know what the attitudes of people were when they did it and I can tell you how very, very infrequent reference there was or consideration by anybody to that oath when it came time to vote on pieces of legislation or policy that would be passed. It was a perfunctory relic, a tradition from the past only they do not mean what they say. And I’m going to say maybe not a hundred percent, but maybe 99% the bulk lie when they take it because they can’t even give you the definition of what oath is now proving what I’m saying I think is easy. For instance, if it were to be followed, we’re going federal level here. Now, if the oath really was to be followed and serious, well for one thing, we would not have a $35 trillion federal debt right now, it would be impossible. There would be no federally funded Medicare or welfare or education or energy departments, none.

Sam Rohrer:       There wouldn’t be any of them. If the Constitution and the oath would be followed, there would be no enemy insurgents crossing illegally into our nation today. They would not be granted asylum. They would not be given preferred placement into peaceful communities across our nation at taxpayer’s expense. It wouldn’t happen. There would be no Department of Homeland Security with sweeping surveillance and citizen tracking powers. There wouldn’t be any if the oath to the Constitution would be observed and those there in DC would actually abide by it. Well frankly, and our presidents involved, I’m going to say there would’ve been no warp speed covid vaccine. There would’ve been no national lockdown in 2020 and beyond. There would’ve been no mandated shots, no masking, no limiting of worship, none couldn’t have been. So our Constitution is in fact a great document, but only if it’s followed. And today I’m saying it is a relic.

Sam Rohrer:       It is by and large ignored. Alright David. Now that’s some of my thoughts as we come into conclusion here. And I think without a doubt, and as you said, we saw 1940 with the Supreme Court, a tremendous use, her patient of power and then major changes in our laws and the way the governance and interaction between the states and the federal government so dramatically has changed. So we got a fundamental problem. Lemme just give you an open question here. What solution do you offer for alert Americans today? Those listening to the program, we said, boy, this is interesting information. I now know things I need to deal with. So what do you offer? What solution do you offer for Americans today in regard to our focus and our discussion?

David New:         I want to first reinforce what you just said. The Constitution in some ways has become a relic. The way I describe it in my book is a little bit different. There’s the 1787 Constitution that is a relic. We don’t live under the 1787 Constitution. Of course we still have a president of Congress and the Supreme Court, but they all have been radically souped up with the 14th Amendment in 1868. In other words, we don’t live in the 1787 Constitution. We live under the 1868 Constitution. So when you hear that the United States has had two constitutions, an article of Confederation and a 1787 constitution that is wrong, we have three. We have the articles of Confederation, we have the 1787 Constitution and we live and operate under the 1868 Constitution and that is wrong. One of the things that the Supreme Court did with the 1868 Constitution is a denied America was a Christian nation.

David New:         It still is a Christian nation in my opinion. Now what should we do? There are many people who are getting very frustrated with what’s going on in this country. It has gone crazy. What the public school administrations are doing to children is disgusting and repulsive. These kids are going nuts because they don’t know if they want to be a boy or a girl. I mean what they’re doing to them is very destructive. They need good stable examples and drag queens, I think we can do better than that. A lot of people are tempted to think, maybe I need to get my gun and get some bullets out. No, the federal government does not fear your gun. It does not fear your bullet. It fears your vote. There’s no weapon more powerful than your vote. Get out and vote. Study the Constitution. As Lincoln said, ensure what you have and what you have learned with like-minded people and get out and vote. Vote in the local school board elections. Vote in every election that comes up. That’s what I would do.

Sam Rohrer:       Alright David, and that is good advice and ladies and gentlemen, we don’t have just the time left. Adding to discussion here so far, what makes the difference between people who know truth and those who don’t know truth? Well, I guess on one hand if we know the truth like the Constitution and don’t do it, I’m going to compare this to the Bible. The Bible is thee the comparison because the truth within the Constitution comes from the word of God. But this is the way it’s laid out. God has given us the truth. The truth. We can hold in our hands, we can read it, we can understand it because it’s understandable, but then we have an obligation of a choice. Are we going to do it or are we just going to let it on the shelf? If we let it on the shelf, it does this no good, that truth that can take us to heaven through faith in Jesus Christ, which we learned through.

Sam Rohrer:       The word has no value if we don’t actually do it and then live it so that other people who don’t know can see and respond. I just basically what I’m going to say in the Constitution, it’s a great document, but it does no good if we don’t do it. We have people now who don’t do it because they don’t fear God. At the end of the day, what can we do more than anything? Fear God, keep his commandments live obediently, live holy lives like we should. That will impact those around us far more than probably any single thing that we can do. And of course then fulfill our civic duties and privileges as well. So with that, we’ll just leave it there. David New. Thank you so much. What a discussion. A lot of good information today on the First Amendment. Ladies and gentlemen, go back and listen to it again. Stand in the gap and share it with a friend.