The Letter of Transmittal

On September 19th, I had the opportunity to visit the Rotunda of the National Archives in Washington, D.C. to view the four-page Constitution, the original ten Bill of Rights, and the seventeen additional Constitutional amendments. It also presented a historic opportunity to also see the “fifth page” of the Constitution, properly known as the Letter of Transmittal, which had only been on display one previous time in September of 2012, to celebrate the 225-year anniversary of the Constitution. This once-in-a-lifetime opportunity was part of our Nation’s celebration of the 250-year anniversary of the Constitution and the great American Experiment.

Few are familiar with the “fifth page” of the Constitution, which states:

Resolutions

In Convention, Monday, September 17th, 1787.

Present

The States of New Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

Resolved, That the preceding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification; and that each Convention assenting to, and ratifying the Same, should give Notice thereof to the United States in Congress assembled.

Resolved, That it is the Opinion of this Convention, that as soon as the Conventions of nine States shall have ratified this Constitution, the United States in Congress assembled should fix a Day on which Electors should be appointed by the States which shall have ratified the same, and a Day on which the Electors should assemble to vote for the President, and the Time and Place for commencing Proceedings under this Constitution. That after such Publication the Electors should be appointed, and the Senators and Representatives elected: That the Electors should meet on the Day fixed for the Election of the President, and should transmit their Votes certified, signed, sealed and directed, as the Constitution requires, to the Secretary of the United States in Congress assembled; that the Senators and Representatives should convene at the Time and Place assigned; that the Senators should appoint a President of the Senate, for the sole Purpose of receiving, opening and counting the Votes for President; and, that after he shall be chosen, the Congress, together with the President, should, without Delay, proceed to execute this Constitution.

By the unanimous Order of the Convention.

Go: Washington - President.

William Jackson - Secretary

The Letter of Transmittal is not part of the Constitution, but rather accompanied the Constitution when it was sent from the Constitutional Convention to the Continental Congress. The Letter is a “how to” instruction guide on taking words on a paper and bringing them to life, “to form a more perfect Union.” The Letter details the measures under the Constitution which must be undertaken by the States to ratify the Constitution and become law of the land. Importantly, it explains how, after the Constitution was to “be laid before the United States in Congress assembled” … “that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof.” Once nine states had ratified it, as required by Article VII of the Constitution, this new instrument of government would go into effect in those nine states.

James Madison said the Constitution “was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people.” Madison knew that the legitimacy of the Constitution derived directly from the consent of the people, something acknowledged by Abraham Lincoln decades later at Gettysburg when he said that the soldiers who sacrificed their lives did so in order “that government of the people, by the people, for the people, shall not perish from the earth”.

From Madison, to Lincoln, and now to us, we must remain ever vigilant and do our civic duty to ensure that “we the people” remain the cornerstone of this great American experiment.

The Limitations and Protections of the First Amendment

The First Amendment states:
“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.” Because the Amendment refers only to “Congress,” the Supreme Court has found that this provision applies to state and local governments. Importantly, the First Amendment does not refer to actions by private individuals. This is one of the most widely misunderstood issues related to the First Amendment. Allow me to explain.

There are many examples of people making statements and then being terminated from their employment as a result of those statements. One of the first cries heard is, “they” can’t do that because “they” are violating the fired employee’s right to free speech. This claim assumes that the United States Constitution prohibits employers from terminating people based on what they say. This is simply not the law.

The vast majority of people work for someone else, an employer. Most of those people are “at will” employees, which in Pennsylvania means the employer can terminate an employee for good reason, bad reason, or no reason. (While on its face that may sound harsh, it is important to remember that employees can also leave their jobs for good reason, bad reason, or no reason, and the employer can't force them to stay.) Given that most employees are “at will”, an employer is free to terminate an employee whose words or actions do not reflect the values of the employer. And the First Amendment does not protect them because the employer is a private organization, not the Government, and therefore the First Amendment does not require the employer to protect or allow free speech.

Just as widely misunderstood is the type of speech that is protected from government interference. First, not all speech is protected. Indeed, the following types of speech are not protected by the First Amendment: 1) incitement - speech that is both “directed to inciting or producing imminent lawless action and is likely to incite or produce such action”; 2) fighting words - speech that is intended to incite the listener(s) to respond with immediate violence; 3) obscene material - most people know it when they see it; 4) defamation - a false statement that tends to “blacken” one's reputation in the community, and 5) fraud - a false representation of a material fact, with knowledge that the representation was false and made with “intent to mislead the listener.” Even when speech does not fall into one of these categories, and this protected, a citizen’s right to speak is still subject to reasonable restrictions as to the time that such speech is allowed, the place where such speech is allowed, and the manner through which the speaker may communicate their message.

To summarize, the First Amendment only applies to the government or state actors, not private individuals and corporations, and not all speech is protected by the First Amendment. Freedom of speech, while a foundational right of our free society, is not absolute, and all citizens should understand the limits of their right to free speech before they speak.