amado diaz

I was recently saddened by a social media post from a friend of forty years. He stated, quite flatly, that the right to protest was not guaranteed by the U.S. Constitution.

Initially, I was angry. I started typing a tirade—one of those long, rambling responses that feels good to write but accomplishes nothing. After a few minutes, I took a breath, deleted the anger, and turned my focus toward the history of the First Amendment.

Every year, we celebrate the 4th of July with cookouts and fireworks. But did my friend forget what that day actually represents? The signing of the Declaration of Independence was the grandest, most daring act of protest in human history. To say we have no “right” to it is to ignore the very foundation of our country.

The Great Debate: Federalists vs. Anti-Federalists

To understand our rights, you cannot just read the Constitution in a vacuum. You have to look at the “intellectual combat” that created it.

On one side, we had the Federalists (Hamilton, Madison, and Jay), who campaigned for a strong central government to unify the states (Federalist Papers). On the other, we had the Anti-Federalists (Patrick Henry, George Mason, and others), who feared a “consolidated government” would lead to the same tyranny they just fought a revolution to escape (The Anti-Federalist Papers).

The Anti-Federalists were terrified of “Political Isolation.” They feared that once the capital was moved to a distant federal district, the elites would stop listening to anyone who wasn’t a lobbyist or a wealthy donor. To them, the right to gather was the only way for the “unconnected” citizen to exert enough pressure to be heard.

The “Peaceable” Compromise

The Federalists weren’t necessarily against assembly, but they were terrified of “Mobocracy.” Memories of Shays’ Rebellion, where farmers took up arms to close courts, were fresh in their minds.

The resolution to this standoff was one crucial word in the First Amendment: “Peaceably.” This was the “Mechanism of Resolution.” It balanced the Anti-Federalist need for collective pressure with the Federalist need for public order. It ensured that the people have a right to show up in force, but it drew a hard line at violence or insurrection.

The Three Pillars of Protest

While the word “protest” isn’t in the text, the First Amendment protects the three specific actions that make a protest possible:

1. Freedom of Speech & Press: The Founders viewed these as “great bulwarks of liberty.” They feared that if the government could silence critics, the Republic would fail.
2. The Religion Clauses: These ensure the state can neither establish a national church nor stop you from practicing your faith.
3. Assembly and Petition: This guarantees the right to gather “peaceably” and to formally demand—or “redress”—that the government fix the problems the people see.

The Legal Reality: Supreme Court Precedent

The claim that the Constitution doesn’t guarantee this right isn’t just a difference of opinion; it’s legally incorrect. Our ability to march today is protected by decades of landmark Supreme Court cases:

• De Jonge v. Oregon (1937): The Court ruled that the right of peaceable assembly is “equally fundamental” to free speech. If the gathering is peaceful, the government cannot make it a crime just to participate.
• Hague v. CIO (1939): This established the “Public Forum Doctrine.” It declared that streets and parks are held in trust for the public. The government can manage traffic (time, place, and manner), but they cannot arbitrarily ban the protest itself.
• Edwards v. South Carolina (1963): The Court ruled that the government cannot criminalize a peaceful protest just because the views expressed are “unpopular” or might provoke a strong reaction from others.

The Bottom Line

If our emotions can be manipulated to ignore history and legal precedence, there is no stopping what can be done to the citizenry.

My old friend is incorrect. As long as a protest is peaceable and orderly, the protesters are standing on the firmest ground our Constitution provides. The First Amendment exists specifically so that we can hold our government accountable without having to resort to the “revolutionary” tactics of 1776.

Sources and Further Reading

• Primary Sources: * The U.S. Constitution, Amendment I (Ratified 1791).
  • The Federalist Papers (Hamilton, Madison, Jay): Specifically No. 10 (factions) and No. 51 (checks and balances).
  • The Anti-Federalist Papers: Specifically the essays of “Brutus” and the speeches of Patrick Henry regarding the “Fear of a Consolidated Government.”
• Landmark Supreme Court Precedents:
  • De Jonge v. Oregon, 299 U.S. 353 (1937) – Established that peaceable assembly is as fundamental as free speech.
  • Hague v. CIO, 307 U.S. 496 (1939) – Created the “Public Forum Doctrine” for streets and parks.
  • Edwards v. South Carolina, 372 U.S. 229 (1963) – Protected the right to express unpopular views in public spaces.
• Recent Jurisprudence:
  • Kennedy v. Bremerton School District, 597 U.S. ___ (2022) – Reaffirming individual First Amendment rights in the public square.