4 Secrets of the First Amendment
Oct. 22, 2026
Host: Hon. Sam Rohrer
Guest: David New
Note: This transcript is taken from a Stand in the Gap Today program aired on 10/22/26 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 the following dialogue.
Sam Rohrer:
When most Americans hear the words First Amendment, well, they immediately think of five fundamental freedoms, religion, speech, press, assembly, and petition. And certainly these liberties lie at the very heart of the American constitutional system. But there’s another question that we don’t ask nearly enough, and that is, what did the First Amendment actually mean when it was written and ratified? And with that, I welcome you to this Thursday edition of Stand in the Gap Today and our recurring focus on the Constitution and US history with constitutional attorney, historian, author, and public speaker, David New. Now, the title I’ve chosen to frame today’s conversation, which I think you’ll find to be very interesting, is this, Four Secrets of the First Amendment. And when considering our constitution, it’s essential to note that words do not exist in a vacuum. They were written and are used, even our day, at a particular time by people who understand the relationship between the federal government, the several states, and the people very differently than many Americans understand that relationship today.
And perhaps nowhere is that distinction more important than in the very first amendment. For instance, consider how it begins. Congress shall make no law, and then it goes on. Not government shall make no law, not the states shall make no law. The amendment specifically identifies Congress shall make no law. Now, why is that? Well, the secrets that we’re going to discuss today are not secrets because somebody deliberately tried to hide something important. It’s not that. They’re secrets in the sense that they’re important historical and constitutional distinctions that many Americans have simply never been taught. And they raise some fascinating questions. For instance, was the First Amendment originally a restriction upon Washington or upon every level of government? Another question, where did Americans’ protection for religious freedom actually originate? Another one could be, what can the original state constitutions teach us about the meaning of religious freedom?
And then there’s a final one we’re going to talk about, and that is this. How did a landmark Supreme Court decision in 1940 fundamentally change the application of the First Amendment? So a lot of things here today, and I hope they’re intriguing to you. And with that, David, welcome back to the program. You’ve been away for a while. You’ve been moving and very busy and glad you could be back with us.
David New:
Well, it’s wonderful to be back with you, Sam, and the Stand in the Gap community and all the wonderful listeners. I have been moving. So I’ve been gone for a little while, but I’m just so excited about today’s show.
Sam Rohrer:
I am too. It’s a great theme. So you’ve identified, David, four things about the First Amendment that we’re calling the secrets, but most people probably have never considered them. So before we get into them, and I want you going to go to number one, but just very briefly identify these four secrets of the First Amendment and then I’ll get you into explaining the number one.
David New:
The first secret of the First Amendment, the first secret of the First Amendment is the first word Congress. This is the most important word in the First Amendment, and it means that there is no authority over the states. The First Amendment is no authority over the states. The second secret to understand the First Amendment are the religion clauses in the state constitutions. They will tell you what the First Amendment means better than anything. The third secret about the First Amendment is where do we get our freedom of religion from? Most people think it came from the First Amendment. Not correct. The last secret is that the First Amendment has been amended. Most people don’t know it’s been amended, but if you turn to your First Amendment and your copy of the Constitution, you will see 45 words in it. On the Supreme Court’s copy, there are 48 words, and that’s what we’re going to discuss.
Sam Rohrer:
All right. Hey David, that’s great. So let’s get right into it and go here first on this first one about Congress. When the First Amendment was ratified and the phrase was put in there, Congress shall make no law, what does that tell the states and the American people about the division of authority between the federal government and state governments? And then tie to this as well. If our listeners walk away today remembering only one thing about this first secret, what should they understand about the original jurisdiction and purpose of the First Amendment? Kind of put those together.
David New:
The most important thing anybody needs to know about a law. What’s the first thing you want to know about any law? Where does it have jurisdiction? Where does it have power? If a law does not have jurisdiction over you, it does not have any power over you. So a lot of people that listen to this show, they’re in various states, Pennsylvania. If you live in New York, you don’t have to worry about Pennsylvania law because it has no power over you. Only New York law does and of course the US law. So here we have the First Amendment. Remember the First Amendment is not first because it’s the most important amendment. Originally the First Amendment was number three on a list of 12 amendments that Congress sent to the states to ratify. The first two didn’t make it. Only the third to the 10th made it.
And that third amendment was the First Amendment. Now they started it with one very special and very important word. The most important word is Congress. That tells you that the First Amendment does not have jurisdiction over the states. It doesn’t have jurisdiction over the local public schools in a state. It doesn’t have any jurisdiction other than the federal government, period. End of statement. That’s where it has power. But things have been going on and the rule has been changed unfortunately, but that’s the key word. Congress is the golden apple of what the First Amendment means. Focus in on that word. Now originally when they wrote the First Amendment on June 8th, 1789, the birthday of the Bill of Rights, James Madison put, “There should be no national religion, no national church.” And the Congress changed it and said, “Congress shall make no law.” Well, it’s the same thing.
It means the same thing. Only Congress can make a national church. Only Congress can make a national religion because it’s a national institution. The US government, a state can’t do it.
Sam Rohrer:
Okay. And that sets us up beautifully. David, ladies and gentlemen, if you’re just joining us today, we are talking about the First Amendment and our title is this, Four Secrets of the First Amendment. And David New, my guest today, just talked about Congress, that first word is important to go there. But then considering that if we want to understand what religious liberty meant to Americans at the founding, David says we shouldn’t look at the federal constitution as much as looking at the state constitutions. And that’s secret number two. We’re going to go there when we come back.
Well, if you’re just joining us today, returning guest and recurring guest for a long time now on this matter of the constitution or constitutional issues almost always tied into some aspect of American history because you cannot separate the two really. David is with me today and our theme is this. It’s the first amendment, but we’re taking the approach of identifying four secrets of the first amendment. They’re not secrets because somebody wants them hidden. They’re secrets because they’re not well known. Now in the first segment, we revealed what David identified as the first secret as we’re calling it and is perhaps the most easily overlooked word in the entire first amendment. And that is the very first word of the first amendment, the word Congress. Now that single word establishes an important starting point because the first amendment was written as a restriction on the federal government, hence Congress shall not.
But that raises an obvious question. If we wanted to understand what Americans at that time of the founding believed about the individual’s right to religious liberty, well, if it’s not Washington, then where should we look? And David rightly says that one of the best places to look is the early state constitutions. Now here in Pennsylvania where I reside and the studio is located here at Stand in the Gap, Pennsylvania here provides a particularly important example. Our declaration of rights here, the Pennsylvania Declaration of Rights states that, “All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences.” Now notice that contrast. The First Amendment begins with Congress and tells government what it cannot do. Pennsylvania Constitution begins with all men and describes religious liberty as a natural and indefeasible right. Big difference. So those two approaches and formulations are not contradictory at all, but they approach religious liberty from two very different directions.
And understanding that distinction may tell us a great deal about America’s founders, what they believed concerning government and God and the rights of conscience. All right, David, you have a second secret as we’re calling it, that is one of the best ways you think, and I agree with you, to understand the First Amendment’s religion clauses to compare them with the religious liberty provisions in early state constitution. So explain why, and I know you like to use Pennsylvania as a primary example, so here it is to you. What are you going to say?
David New:
Okay. Look at the word in the First Amendment. It’s in the negative. Look carefully. It says Congress shall make no law. That’s a negative. That means when a judge is going to read the First Amendment, he’s not looking for my rights or your rights. He’s looking to make sure that the government isn’t doing something they shouldn’t be doing. So his attitude or her attitude is completely different. The First Amendment is about government. Congress shall make no law. And the reason it’s in the negative is because it’s about the government. Now, the Pennsylvania Constitution is the very best religion clause out of all 50 states, in my opinion. Approximately 20 states have copied that very first sentence that Sam read. Almost verbatim, 20 different states have copied it in their state constitution. This is the engine for religious freedom is the Pennsylvania Constitution Religion Clause. Now look what it says, all men.
So now the subject is completely different. It’s not about government like the First Amendment. It’s about people. And look what else it says. Because it’s about human beings, it’s written in the positive. All men have. All men have. That’s a positive. So now when a judge is looking at the behavior of an individual and somebody’s objecting to it because of what he’s doing with his religion, the first thing a judge is going to look and say, “Hey, the law says this guy has these rights. You better come up with a very good reason why he can’t do this if this is his religious belief.” With the First Amendment, uh-uh. The judge is not looking for the individual. The judge is looking at the government. That’s one of the key differences between the First Amendment and the state constitutions.
Sam Rohrer:
Okay, David, that’s… Oh, I’m sorry. Go ahead. I thought you were done. Go ahead.
David New:
Now it also says it’s a natural right. Does the First Amendment talk about natural rights? No, sir. What is the natural right? It’s a right given to me by God. And then it says it’s indefeasible. Does the First Amendment talk about my indefeasible rights? No, sir. It has no reference to it whatsoever. Now the First Amendment does protect an individual’s freedom of religion, but only indirectly as what the Congress is doing to a person. Indefeasible means it can’t be taken away. It’s an old word for transferring property from one person to another, an old English word.
When it says indefeasible, it means it cannot be lost. Even if the government does not respect my freedom of religion, I still have my right. It’s an indefeasible right that cannot go away. And here again, to worship Almighty God. Does the First Amendment mention God? Of course not. Why? Was it because they were a bunch of godless members of the ACLU? No. The reason why the word God does not appear in the First Amendment is because it’s not about the freedom of religion for an individual. It’s about stopping the government. And then it says, according to the dictates of their own consciousness, that means there will not be a theocracy in the state of Pennsylvania. Is the word consciousness in the First Amendment? No. So here are all these keywords, men, natural, indefeasible, almighty God, consciousness. Now you say, David, that makes the First Amendment read pretty bad.
That’s really bad. No, it is not. The First Amendment is perfect for what it was designed to do, but our liberal friends, our liberal neighbors like to read all this kind of stuff that’s in the Pennsylvania Constitution. They want to pretend it’s in the First Amendment and it’s not.
Sam Rohrer:
Okay, that’s excellent. Keyword jurisdiction that you’re talking about. The First Amendment is in the jurisdiction of Congress in the negative you do not tamper with. And then the state constitutions as led by Pennsylvania and said other states that have copied that puts it in the positive and it takes it and makes the connection to the rights of man indefeasible and so forth. Now let me broaden that in the last couple of minutes here in this segment. Let’s go beyond Pennsylvania. You’ve already said Pennsylvania was unique in a way and perhaps used the best wording, but other states have copied it. So here would be the question. Do we see the same general understanding reflected across other state constitutions? Now you said about 22, I think other states have modeled it significantly, but what about the others? And here’s the question. And what does that tell us about the way religious liberty actually functioned in the early days when these documents were actually assembled and put together?
David New:
The other state religion clauses are not as good. Pennsylvania is hit. There’s a reason why 20 states copied it. It is the best there is. The absolute worst religion clause is the Arizona religion clause. I don’t have it in front of me, but it’s horrible. Now, a lot of states, the more recent states have started to copy the first amendment for the religion clause. Alaska did that. Hawaii did that in 1959. This is the golden apple. This is the best. This is what makes American religious freedom so great is because of the Pennsylvania religion clause. I can’t emphasize how powerful and good this is. And notice now also, it says Congress shall make no law respecting an establishment of religion. That means Congress cannot make Christianity the legal religion of the United States. In my opinion, the United States is a Christian nation, but it is not legally that.
Now look what it says. Congress shall make no law respecting an establishment of religion. Does it mean that Congress can’t make any laws about religion? No. Only laws that establish a religion. That’s why when Congress made in God We Trust, it’s constitutional. Congress can make laws about religion. They just can’t make laws about the respecting of an establishment clause. There’s a difference. So under God and the pledge of relations, perfectly Congress and perfectly constitutional. Even though Congress wrote it, it’s not wrong because they weren’t establishing a religion. Belief in God, a simple belief in God is not an establishment of religion.
Sam Rohrer:
All right, David, very, very, very clear. So ladies and gentlemen, this last point we just made here is something perhaps a lot of people have not been aware. First amendment originally restrained the Congress from a state religion. The states were already there protecting religious liberty as what we heard in our own constitution in Pennsylvania. So the question is where did the religious freedom Americans actually enjoy? Where did that come from? Well, today David New and I are focusing on the First Amendment to the Constitution. Most people are aware of the First Amendment. We tend to think it’s first because it was always first, but we talked about that earlier, that it originally was the third and ended up being the first. So that part’s there, but what’s it say? And we’re framing our discussion today in this context, four secrets of the First Amendment. And we’ve already said secrets not as in something the founders were trying to hide far from it.
It’s just points of significance relative to that amendment, very important amendment, that are just not well known. So it’s secrets in that context. But as we looked at first, the First Amendment begins with these words, Congress shall make no law. Secondly, we went to America’s early state constitutions and David focused what’s here in Pennsylvania where I’m sitting, because it’s probably the strongest of all of the religion protections that are there in states then. Some copied Pennsylvania, others have different variations, but it contains the wording protecting religious liberty, the rights of conscious and so forth. And we talked about that in the last segment. Now you put those two facts together and a fascinating, I think, historical question emerges and it’s this question. Well then if it’s not federal government, they can’t alter anything. And the state governments recognize that it exists by referring to men beginning it, the rights that they have indefeasible and so forth.
Well then where did the idea of religious freedom in America actually begin? And I think most Americans today would instinctively answer, well, the first amendment, but as we know, as God fearing citizens, and as David even referenced at one point in the other text, the answer, well, it’s not in government because for roughly the first century and a half under our constitution, religious liberty existed in America without the Supreme Court’s involvement, without the Supreme Court applying the First Amendment’s free exercise clause, which we’ll talk about, and any involvement at all with state governments as it does today. Then there came a major turning point, 1940, Cantwell versus Connecticut. You may have heard that. The Supreme Court considered the case of a fellow named Newton Cantwell and his sons, Jehovah’s Witnesses, frankly, who had been engaged in religious activity in Connecticut. And the court applied the First Amendment religious freedom protections against state government through what only came the 14th Amendment.
That part, David knew, who’s my guest today. We’ve talked about a little bit in the past, but not in this context. So that produces an interesting question. If Americans enjoyed religious liberty before 1940, which is when the Supreme Court got involved, what was it protecting? Okay, David, with that, build all of that out. Let’s answer the question. Where did the religious freedom Americans enjoyed from the founding until 1940 actually come from and then explain the role Pennsylvania and other states played in establishing and protecting that concept?
David New:
Sure. First, I want to briefly interpret the religion clause. The first clause, Congress shall make no law respecting an establishment of religion, those are 10 words, or prohibiting the free exercise thereof. Those are six words. And by the rules of grammar, we can also say concerning the second clause or prohibiting the free exercise thereof, we can say Congress shall make no law prohibiting the free exercise thereof. That’s grammatically what it means. So the first 16 words of the first amendment deal with religion. Now when it says Congress shall make no law respecting the establishment of religion, that is the reason Christianity or no religion is the legal religion of the United States. There is a second reason the United States does not have a legal religion like Christianity, and that is because of Article one, Section eight of the US Constitution. There you’ve got 17 or 21 different powers given to Congress.
You’re not going to find anything about religion. Congress does not have the authority under Article one, Section eight to make Christianity or any religion, any religion, the legal religion of the United States. And the reason it’s done like that is because at the time there were different churches in different states. The congregational church was in New England. The Anglican church was down south. The mid-Atlantic states of Pennsylvania, Delaware, they didn’t have any state churches. They didn’t want them. And they were all different and Congress said, “We’re not going to get involved.” Now the United States is a Christian nation, but not as a matter of law. It’s culturally a Christian nation. So the word Christianity cannot be the legal religion because of the establishment clause. And when it says are prohibiting the free exercise thereof, that means that the United States government must be a religion friendly government.
It must be friendly towards religion. Don’t be nasty about it. Be nice about it. Okay. Where did our religious freedom come from? If you ask most Americans, they will think it comes from the First Amendment. Totally wrong. Completely wrong. Where did our freedom of religion come from? It came from the religion clauses in the state constitutions. Before 1940, you don’t have very many cases about religion in the Supreme Court, maybe 12, maybe 15, depending on how you define things, but that’s how few there are. Very, very few. And those 12 or 14 don’t involve the state governments. The First Amendment has no jurisdiction over the states. So why, how, and where did the freedom of religion come from? How did it become so great? It became from the states. The states began with established churches, many of them, but as they grew more mature, they got rid of them because not only does the majority have religious rights, but so does the minority or even people who are interested in religion.
They don’t want their tax money going to support a state church. Even those in minority religions, they don’t want their money going to support the majority religion in a state. It’s a real bad idea. Freedom of religion in America became and is a result of the state governments. Now look what James Madison said. One of the reasons why the Constitution has precious little to say about religion, not only in the First Amendment, but in anywhere the seven articles, and James Madison is going to tell us why religion is practically a dead subject in the US Constitution. He said after the Bill of Rights were finished in 1788 on June 12th, listen to this statement, “There is not a shadow of right in the general government, the federalities. There is not a shadow of right in the general government to enter meddle with religion. Its least interference with it would be a most flagrant usurpation.” What does he say?
The federal government is not to be in the religion business. They assigned all the power over religion.
Sam Rohrer:
Okay, David, let’s move on because
David New:
Of – We have their freedoms today. They come from the states.
Sam Rohrer:
Okay. Let’s move on to this so we can get it into the segment. This 1940 decision we referred to Cantwell versus Connecticut, what happened in that case where the Jehovah’s Witnesses were involved and what did the Supreme Court do that was so constitutionally significant? Okay.
David New:
Between 1791 and 1940, the First Amendment was not much used. Doesn’t have a high profile, has a very low profile in American law. When you’re talking about religion, when you’re talking about the freedom of speech and all these other things, it’s the state constitutions that run the show. That’s why we have the freedoms we have today. Now, the federal government is not to be involved religion. What happened in 1940, if you want to know the difference small groups of people can make in America, what happened in 1940 tells you that just a few people can make a big difference. There was a case called Catwell versus Connecticut in 1940. It’s about Jehovah Witnesses. They were going door to door and they were aggravating people all over the country at that time. They were really getting people upset because they were banging on the doorbells. And the government said, “You can’t go door to door and solicit money without getting a license.” And they said, “We’re not going to do that.” Well, they got in trouble with the state of Connecticut.
Now, the Jehovah Witnesses filed their legal brief with the Connecticut Supreme Court. In their legal brief, they never, never referred to the First Amendment because at that time you didn’t use the First Amendment to protect your religious freedom. By the way, they also in their legal brief called America a Christian nation because later they got a very negative attitude about
Sam Rohrer:
America. All right. And we’re out of time in this segment, ladies and gentlemen. So we’ll touch on that a little bit more in the next segment here, but we’ll come back and we’ll look at this because to some degree, the Supreme Court and their interaction in that case, some would say amended that first amendment. Others would say they just put some kind of restrictions on it, but we’ll explain that in this last section. What happened in 1940? Well, as we go into our last segment here, if you’ve been with us from the beginning, you’ve noted a very logical progression to these four secrets that we’ve laid out as we talked four secrets of the First Amendment. And we’ve tried to do that intentionally in order to help our minds and memories to be able to kind of move from one thing to another. And we’re going to complete that progression here in this segment.
We first looked at the word Congress and the significance of the First Amendment originally limiting the federal government. Talked about jurisdiction, limiting jurisdiction. Federal government has no involvement. Secondly, we looked at state constitutions, particularly here in Pennsylvania, and the state constitution’s recognition of religious liberty as an individual natural right. And then the last segment, we talked a little bit more about where American’s practical protection for religious freedom actually came from before the courts got involved in applying the first amendment against the states. And we didn’t go fully into detail, we’ll go a little bit more there now. And that in fact involved a matter that came before the court coming out of Connecticut with Jehovah’s Witnesses primarily, and it’s called the 1940 Cantwell versus Connecticut case. Now, in that case, the Supreme Court held that the First Amendment regarding religious freedom protection applied against state government and they brought in here the 14th Amendment.
And David’s going to have to talk about that. And that leads to this fourth secret and perhaps most provocative secret, and I could say, and that is this, the First Amendment was effectively amended. David’s going to explain that. Were the words actually changed or was there a constitutional, well I’m going to say application change that the Supreme Court did. So here’s the question. How did a constitutional provision beginning Congress shall make no law ultimately become a restriction upon states and local governments as well? All right, David, you made the statement that the First Amendment was amended in 1940 and I’ve set that up a little bit there, yet not one word per se of the First Amendment itself was actually changed. So what do you mean and how did Cantwell in the 14th Amendment, we’ve talked about in other programs as well, but how did those two together change the practical reach and application of the First Amendment?
David New:
What the Supreme Court did in 1940 and Cantwell versus Connecticut is that they reversed the framers of the First Amendment. They reversed the 39 signers of the Constitution. Both the Article one through seven of the Constitution has nothing to say about religion because it was left to the states according to the 10th Amendment. The framers of the First Amendment left religion to the states, which is why it begins with the word Congress. The Supreme Court in 1940 reversed all of these people and they said that the First Amendment applies to the states now. We’ve changed the rule. From 1791 to 1940, you’ve got 149 years. For the 149 years, no First Amendment. So the Catwells, when they appealed to the Connecticut Supreme Court, they never talked about it. They didn’t say, “Oh, the state of Connecticut is violating my First Amendment rights.” They didn’t do that.
Then when the Connecticut Supreme Court wrote their decision, they never talked about the First Amendment either. It wasn’t until the Catwells appealed to the Supreme Court of the United States. And by this, I don’t mean to blame Jehovah Witnesses for doing this. They’re not to blame for it. That’s when the Supreme Court introduced the First Amendment in the case for the first time in American history. And they applied the free exercise clause first. And then in 47, they applied the establishment clause in a case called Everson. What did that do? It reversed the framers of the Constitution. It reversed James Madison. It reversed all these people. Well, where did the authority come from? They came up with this idea that the 14th Amendment made the Bill of Rights applicable to the states. That’s where they got it. They say that in 1868, when they ratified the 14th Amendment, one of the Civil War amendments, they meant to make the Bill of Rights applicable to the states.
Now, the only problem with that view is that it took 72 years after 1868 for the Supreme Court to make this glorious decision. It’s a complete fraud, but there’s a real reason why they do it. They do it because they get enormous power. They never had the kind of power until they started applying the Bill of Rights of the States. Effectively, all the religion clauses and the state constitutions, they don’t even matter. If you erase them and cut them out, you wouldn’t change anything. The First Amendment has taken over the whole game. Religion has been federalized. The federal government took it over. And even then, not the president, not the Congress, only the Supreme Court really has all the marbles. The president and Congress can affect religion only in the margins. The Supreme Court has all the marbles.
Sam Rohrer:
David, that is an incredible thing. And ladies and gentlemen, I just put out there, it’s how, as David said earlier, as you said, David, a small number of people can challenge something that all of a sudden grows and becomes a behemoth that literally undoes, and as you say, undoes and reverses those who actually wrote and put together the First Amendment itself. It reminds me, David, then the final comment about how quickly we can lose our freedoms if we do not all. It requires everyone upholding the fundamental aspect of truth, doesn’t it? We don’t have much time left, but any final comments on this before we wrap up the program?
David New:
So why the Supreme Court did this in 1940 is they wanted to take America in a new direction. The first institution to go secular wasn’t the presidency. It wasn’t the Congress. It was the Supreme Court. And they really started pushing secularism in the 1960s with the removal of prayer in school. These people have fundamentally changed America for the worst. We will never know the great things America could have done if not for the toxic poison that we have against religion. Where did it come from? It comes from the Supreme Court. They are telling us in the prayer cases, religious prayer, religious speech is offensive. Don’t do it in school.
Sam Rohrer:
All right. And with that, ladies and gentlemen, it brings us to the end of the program today. I’m just going to pray quickly for us because we need the Lord’s help. Heavenly Father, we thank you that we have the freedom yet to speak across the airwaves of America on this program. We know that that could be limited and increasingly a matter of speech is limited. And we know that across the spectrum, religious speech, speech about Jesus Christ, the way the truth in the life is increasingly being limited and targeted by those who do not agree with that fundamental truth. So Lord, we just ask that you keep all of those who are listening alert and keep us firmly planted on your word and given the courage to act it out. And as this program is entitled to stand in the gap for truth, we pray in Jesus’ name.
Amen. David Yu, thank you so much for being with me today. Great theme and a lot of information I know is helpful to many people. Ladies and gentlemen, thank you for being with us. Pick up this program on our app or on the website and pass it along to a friend. I’m sure that they will be blessed by it as well.
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