Bipartisan agreement is rare in these politically polarized days.
But that’s just what happened in response to ABC’s suspension of “Jimmy Kimmel Live!” The suspension followed the Federal Communications Commission chairman’s threat to punish the network for Kimmel’s comments about Charlie Kirk’s alleged killer.
It lit up the media. Democrats and civil libertarians denounced the FCC chairman Brendan Carr for violating the First Amendment’s guarantee of freedom of speech. Voices on the right, including Senator Ted Cruz, joined them.
Within a week, Kimmel’s show was back on the air.
While bipartisan agreement may be rare, it’s not surprising that it came in defense of the First Amendment – and a popular TV show. A recent poll found that a whopping 90% of respondents called the First Amendment “vital,” while 64% believed it’s so close to perfection that they wouldn’t change a word.
In just 45 words, it bars Congress from establishing or preventing the free exercise of religion, interfering with the peoples’ right to assemble and petition, or abridging freedom of speech or the press.
I’m a historian and scholar of modern U.S. law and politics. Here’s the story of why this amendment – now considered fundamental to American freedom and identity – wasn’t part of the original Constitution and how it was included later on.
Added three years after the Constitution was ratified, it resulted from political compromise and a change of heart by framer James Madison.
Handwritten revisions by senators during the process of altering and consolidating the amendments to the U.S. Constitution proposed by James Madison of Virginia. National ArchivesSoured on bills of rights
Building a strong national government was the focus of Madison and the other delegates who met in Philadelphia in May 1787 to draft the Constitution.
They believed the government created by the Articles of Confederation after the colonists declared independence was dysfunctional, and the nation was disintegrating.
The government could not pay its debts, defend the frontier or protect commerce from interference by states and foreign governments.
Although Madison and the other framers aimed to create a stronger national government, they cared about protecting liberty. Many had helped create state constitutions that included pioneering bills of rights.
Madison himself played a critical role in securing passage in 1776 of the Virginia Declaration of Rights, a monument to civil liberties.
By the time the Constitutional Convention met, however, Madison had soured on such measures. During the 1780s, he had watched with alarm as state legislatures trampled on rights explicitly guaranteed by their constitutions. Bills of rights, he concluded, weren’t sufficient to protect rights.
So Madison and his colleagues put their faith in reinventing government.
No appetite to haggle
The Constitution they wrote created a government powerful enough to promote the national interests while maintaining a check on state legislatures. It also established a system of checks and balances that ensured federal power wasn’t abused.
In the convention’s waning days, delegates briefly discussed adding a bill of rights but unanimously decided against it. They had sweated through almost four months of a sweltering Philadelphia summer and were ready to go home. When Virginia’s John Rutledge noted “the extreme anxiety of many members of the Convention to bring the business to an end,” he was stating the obvious. With the Constitution in final form, few had the appetite to haggle over the provisions of a bill of rights.
That decision nearly proved fatal when the Constitution went to the states for ratification.
The new Constitution’s supporters, known as Federalists, faced fierce opposition from Anti-Federalists who charged that a powerful national government, unrestrained by a bill of rights, would inevitably lead to tyranny.
Ratification conventions in three of the most critical states – Massachusetts, New York and Virginia – were narrowly divided; ratification hung in the balance. Federalists resisted demands to make ratification contingent on amendments suggested by state conventions. But they agreed to add a bill of rights – after the Constitution was ratified and took effect.
That concession did the trick.
Harmless, possibly helpful
The three critical states ratified without condition, and by midsummer 1788, the Constitution had been approved.
However, when the First Congress met in March 1789, the Federalist majority didn’t prioritize a bill of rights. They had won and were ready to move on.
Madison, now a Federalist leader in the House of Representatives, insisted that his party keep its word. He warned that failure to do so would undermine trust in the new government and give Anti-Federalists ammunition to demand a new convention to do what Congress had left undone.
But Madison wasn’t just arguing for his party keeping its word. He had also changed his mind.
The ratification debates and Madison’s correspondence with Thomas Jefferson led him to think differently about a bill of rights. He now thought it harmless and possibly helpful. Its provisions, Madison conceded, might become “fundamental maxims of a free government” and part of “the national sentiment.” Broad popular support for a bill of rights might provide a check on government officials and how they wielded power.
Madison pushed his colleagues relentlessly. Wary of provisions that would weaken the national government, he developed a slate of amendments focused on individual rights. Ultimately, Congress approved 12 amendments – ensuring rights from freedom of speech to protection from cruel and unusual punishment – and sent them to the states for ratification.
First Amendment no cure-all
By the end of 1791, 10 of them – including the First Amendment ≠ had been ratified.
As Madison anticipated, the First Amendment wasn’t a cure for a government bent on suppressing dissent. From the Sedition Act in the 1790s to McCarthyism in the 1950s and the Trump administration’s assault on the First Amendment, government has used its awesome powers to pursue and punish critics.
On occasion, courts have intervened to protect First Amendment rights, a weapon Madison didn’t anticipate. But not always.
Perhaps the ultimate protection for First Amendment rights is “national sentiment,” as Madison suggested. Norm-breaking presidents can disregard the law, and judges may cave. But public sentiment is a powerful force, as Jimmy Kimmel can attest.
Donald Nieman is a Professor of History and Provost Emeritus, Binghamton University, State University of New York
Children watch a July Fourth Parade along the Walkway of Heroes and Independence Avenue on July 04, 2026 in Tappan, New York.
The Great American Grumpfest
Our nation’s 250th birthday party didn’t feel especially patriotic and wasn’t as much fun as the 200th anniversary was.
President Trump, who did his best to co-opt our holiday for his personal aggrandizement, was a major reason. The party he threw in Washington, D.C., was crankier than uplifting, and less about celebrating our shared past and a promising future than about reminding us how far we have strayed from our founders’ plan to create a republic that future Americans would keep in good working order.
Credit Trump this much. He has a singular gift for picking at scabs that other politicians would rather ignore and pushing us into reckonings we don’t need.
The thing is, Americans have seen all this before. Sometimes the makeover we were encouraged to undertake was more conservative, sometimes more liberal. Whatever direction we were pushing, however, the reckoning we had in mind this time had to be more forthright and the conclusion more definitive than it was the last time.
Our current discontents, the ones behind the reckoning President Trump has been trying to inspire, are not trivial. Included among them are immigration, birthright citizenship, exploding healthcare costs, election rigging, a gag-inducing national debt, how we educate our children, too many genders, racial differences we can’t move past, a lopsided economy that favors more well-off Americans, and historic levels of political corruption and graft. Add to these the several foreign adventures he has pushed us into or is anxious to undertake, and you have the makings of a national headache the likes of which we haven’t had in half a century.
All the elbow-throwing and overheated rhetoric we’re using today have begun to look almost normal in all the ways that bickering neighbors and feuding family members appear normal. But they have also made us look mean-spirited and have portrayed our differences as irreconcilable. To ourselves, of course, but also to many people outside the United States who might be forgiven for turning their heads and not looking at the national car wreck we Americans show no interest in avoiding.
The good news, as I suggested above, is that Americans have had a great deal of practice dealing with challenges and national car wrecks like these.
This essay begins to lay out the reasons why.
By way of illustration, we have our seemingly insatiable demand for more bad news about race in America.
Sixty years after being released from the legal constrictions that bedeviled both white and black Americans, many white people have come to believe the color that used to make them unassailable is now a sign of a moral inferiority born of a racial animus they can never wash off. Many black people, on the other hand, are insisting that America is as hopelessly stacked against them as the formerly unassailable white people’s ancestors used to tell their black ones.
The result is that many people today are buying into racist nightmares and mumbo jumbo that their black and white ancestors worked hard and effectively to put in each other’s heads.
This might be dismissed as crazy behavior if it weren’t so important to rituals Americans have long used to express their deepest fears about each other while figuring out what move they can make that won’t end with their world crashing down on everybody’s head.
Unfortunately, the kind of cultural sleight of hand we have used to ramp up our racial differences has been appropriated by people who have many other cultural fears and unresolved differences with each other. Their clumsy but culturally prescribed missteps are making all these other issues look as irremediable as our racial problems.
A good place to start an answer to how we back away from ledges is Alexis de Tocqueville’s writing on early-19th-century American democracy. He had an optimistic take on Americans’ unscripted displays of public bravado, recrimination, and payback.
For him, these were occasions when people tried to mitigate the effects of the unfair hand they were dealing someone else or had themselves been dealt by behaving in ways quite at odds with how they would otherwise be expected to act. These inversions of what Tocqueville called “the natural order of conscience” presented themselves as a loud but culturally muted challenge to the hypocrisies that people had built into the world they’d made together.
One of his favorite illustrations of early-American hypocrisy involved slave masters sleeping with their less-than-worthy slaves. To the best of my knowledge, he didn’t pick up on all the ways that slaves messed with their owners. Their well-chronicled and quiet resistance showed that even severely ill-treated people can exercise more control over their lives than outsiders appreciate.
Be that as it may, such inversions of a people’s “natural order of conscience” make a good public show of them wrestling with demons they can’t or may not want to shake off, but in any case, are nowhere close to figuring out how to cast out.
Implicit in these disruptions was the discomforting idea that people might flip the entire script and turn the world on its head in more permanent ways. That kind of flipping worked out better for us in our revolution against England than in our Civil War. These events taught us the value of stepping back from historically unprecedented ledges.
Americans of late have been giving loud expression to a long list of things they don’t like about each other and the last makeover they started but didn’t finish a half-century ago. The outcome of our fights today will be as revealing as they are embarrassing to everyone who imagined they could recast our country in a way that privileged their favorite kind of Americans.
Their disappointment with the accommodations they strike will be palpable, but the middling results they achieve with all their pushing and shoving won’t be anything they can’t live with.
Anthropologists who have written about such moments in other cultures less “advanced” than our own show that people find ways to work around their seemingly irreconcilable differences without ever fully resolving them. Indeed, the patches and repairs people make have the unheralded effect of reinforcing rather than undermining the legitimacy of the practices and values they thought were fundamentally flawed.
For example…
White guilt and black pessimism do more good than putting cash into the pockets of professional shamers and handwringers. They give the rest of us who don’t feel guilty or powerless more time to make the world less racially unequal. Good news.
Regarding illegal immigration, the entrance requirements for future immigrants will remain stringent. Americans will applaud the continued detention and deportation of the few illegal immigrants who commit serious crimes. Good news.
All the people who came to the United States without being legally vetted and were locked up for a time will be released in numbers small enough to avoid serious media attention. Along with the several million other good people who snuck in but avoided capture, the former detainees will go to school, find gainful employment, pay their taxes, and stay out of trouble. Many will eventually become citizens. Good news.
Investigations into election tampering and Donald Trump’s 2020 presidential loss will come to an unceremonious conclusion the day after his second term ends. Many Americans will grumble about this, but there will also be some quiet partying, too. Good and bad news.
Congressional hearings into all the grifting accomplished by people tied to the Trump administration will end without anyone having to pay a dime back to the American taxpayers. Bad news, we’ll learn to live with.
New laws and regulations will be created in the hope that the kind of corruption practiced by President Trump will not be repeated for another 250 years. Good news, I hope we’ll live long enough to enjoy.
Show trials for people who allegedly vandalized the Lincoln Memorial Reflecting Pool, if they happen, will get big television viewer ratings. Good news.
Trials for pardoned Capitol insurrectionists who committed serious crimes after their release should get more attention, but won’t. Bad news.
We will continue to hear nothing from most of the people who were pardoned for crimes they committed in the insurrection at the Capitol on January 6, 2021. They will keep their mouths shut and their heads down for the rest of their life. Good news.
The gold-gilded ornaments that Donald Trump had plastered all over the White House will be shipped to Mar-a-Lago, where the former president will sell them on eBay. Fun news.
American taxpayers end up paying for most of the new East Wing, the removal of the miniature gladiatorial arena that was built behind the White House, and the restoration of the White House rose garden. Bad news.
The Triumphal Arch was never built. Good news.
Trad wives and gay couples raise perfectly lovely children. Good but unsurprising news.
Trans men and women learn that most Americans can’t figure out who they used to be. No one gives a second thought to their use of “family bathrooms” or “unisex bathrooms” in public settings, businesses, and schools. Communities will sponsor athletic teams that have trans boys and girls just to show they can. Good news.
Budget deficits will be kicked down the road for someone else’s children to pay down. Bad news.
Federal agencies that had their budgets and employee ranks slashed during President Trump’s second term are getting some of the money and lost positions back. Good news.
Elite universities will buy their way out of DEI purgatory by competing for conservative scholars whose inflated salaries dwarf those of their liberal colleagues, who will think about suing their institutions for reverse discrimination but won’t be able to figure out who would pay for it or care. More fun news.
Okay. I’ve probably missed some ways that Americans will step back from the ledges they have been making noises about leaping off. But to the extent that my predictions pan out, the best and most important moral of the stories about us stepping away is this: everything we lost and took back, or had returned to us, will have happened without our government collapsing, civic traditions crumbling, or our people beating each other up.
The reason why is that the differences Americans have with each other really weren’t as irreconcilable as we made them out to be. The empty-sounding bromide that Americans have more that unites us than divides us turns out to be true, not just metaphorically but in fact.
Now that is really something to celebrate.
Daniel J. Monti (danieljmonti.com) is Professor of Sociology at Saint Louis University and the author of American Democracy and Disconsent: Liberalism and Illiberalism in Ferguson, Charlottesville, Black Lives Matter, and the Capitol Insurrection.