Commentary: Dissenters on Constitution created freedom of speech

Stephen D. Solomon

is an associate professor at New York University and author of "Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech" (St. Martin's Press, 2016)

Five days before the Philadelphia convention finished its work on the Constitution in September 1787, George Mason of Virginia urged his fellow delegates to make a critical addition to the document. Americans were fresh from their experience with a domineering Parliament, so Mason advocated for a bill of rights to protect them from the powerful central government that the delegates wanted to create. A bill of rights, he said, "would give great quiet to the people."

The convention, though, rejected Mason's proposal and in turn, he and two other delegates refused to sign the Constitution. Mason scribbled down many reasons for his rejection of the Constitution at the end of the convention, but atop his list was the entry "There is no Declaration of Rights . . ." His objection put him on a journey that would help make him one of the most influential but least known of the nation's founders.

The failure of the delegates to adopt a bill of rights was a serious misstep that nearly derailed the Constitution. Mason and other opponents carried the issue into the state ratifying conventions, one of many controversies that fueled vigorous debate throughout the country. John Adams wrote that discussion of the Constitution was "the greatest single effort of national deliberation that the world has ever seen."

As Adams and Mason knew very well, the wide-open debate and dissent during ratification was not to be taken for granted. The founding generation had inherited an oppressive law from England, seditious libel, which made it a crime to criticize government or public officials because it could lead to disturbances in the future.

Freedom of the press in colonial America meant only the right to publish free of licensing and censorship - what today we call prior restraints - and nothing more. People could be prosecuted for what they actually said or published if it disparaged government policy. By 1700, there had been more than 1,200 cases in colonial courts in which authorities sought convictions of people for criticizing laws and officials.

All that began to change when Parliament enacted the hated Stamp Act in 1765, followed by more laws aimed to raise tax revenue. Writers and printers went on the attack. Pamphleteers wrote long, erudite essays condemning the laws as violations of their rights as Englishmen. Newspapers like the radical Boston Gazette printed letters and articles excoriating the British prime minister as well as royal officials in the colonies.

Dissent then quickly moved beyond the well-educated who could appreciate complex legal arguments. The patriots pursued a deliberate campaign to expand public participation. The liberty tree was born in Boston, with effigies of the prime minister, stamp distributor, and the devil hanging from its branches. It attracted crowds of thousands and as news spread of the demonstrations, patriots rallied around liberty trees and liberty poles up and down the coast.

The colonists sat in their pews as ministers delivered stirring anti-British sermons from the pulpit. They met in taverns and coffeehouses to argue over the issues of the day. And they expressed themselves with songs, poems, plays, and cartoons, and often employed parody and satire. Their protest against British authority was itself a violation of seditious libel, but the law was unenforceable because so much of society was engaged in dissent. The founding generation was establishing a culture of robust political expression that included strong and sometimes vitriolic dissent against authority.

This new culture energized Americans as they debated ratification of the Constitution in their state conventions. They produced an enormous wave of letters, essays, speeches, and resolutions; some burned copies of the Constitution while others paraded with the document mounted atop a pole. Anti-Federalists like Mason opposed the Constitution on many grounds, but over and over again they hammered on the need for a bill of rights. Patrick Henry asked the Virginia convention why the rights of the people had not been protected. "Why not say so?" he said sarcastically. "Is it because it will consume too much paper?"

Those in favor of the Constitution raised enough votes to ratify only by agreeing to introduce amendments in the first federal Congress. They fulfilled their promise, and the 10 amendments ratified in 1791 became America's Bill of Rights, vindicating George Mason's concern in Philadelphia. The first of those amendments protected freedom of speech and press-providing safeguards for Americans of future generations to continue the kind of spirited debate that had brought them to independence and ratification of their Constitution.

Stephen D. Solomon is among the scholars who will be discussing "The Reluctant Statesman: George Mason and the American Tradition of Dissent" from noon to 2:30 p.m. Wednesday at the National Constitution Center. To register, visit www.constitutioncenter.org/debate or call 215-409-6700.