Freedom of Expression and Unorthodox Concepts in American History

Honoring Our Liberties on the 75th Anniversary of D-Day

Close up of The Bill of Rights

Now that we have a captivating and thought-provoking title to grab your attention, let’s delve into the history. On June 6, 1944, Allied forces courageously stormed the beaches of France, marking the beginning of the end for the Second World War. The remarkable valor and sacrifices of these young soldiers serve as a reminder of our better selves and the debt we owe to both veterans and active duty service men and women.

This commemoration is an opportune moment to reflect not only on the bravery of our troops but also on the treasured freedoms we hold dear. The concept of the Rule of Law, an English innovation embraced by American revolutionaries, was at the core of our Constitution and has been zealously protected for almost 250 years. As we approach the 250th anniversary of the Declaration of Independence in 2026, it’s a perfect time to start planning a grand celebration of America’s establishment as an independent nation.

Inextricably linked to the American experiment is the Bill of Rights, a collection of the first ten amendments to the U.S. Constitution ratified by Congress in 1789. Among these, the most famous is the First Amendment, which safeguards our freedom of speech, religion, press, peaceful assembly, and the right to petition the government for redress of grievances.

While it’s tempting to solely associate the concept of freedom of speech with the First Amendment, it’s essential to recognize that it is not an isolated principle. The Constitution safeguards freedom from government intrusions throughout its various amendments. Two other amendments specifically address this concern, demonstrating the early colonists’ fear of enduring English oppression:

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Ninth Amendment: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

During much of constitutional jurisprudence, the Ninth Amendment remained in relative obscurity. However, in the latter half of the 20th century, cases involving matters such as the right to contraception and parental control over the upbringing of minors brought this amendment into the spotlight. Nevertheless, the focus of fundamental rights has primarily been on deriving them from substantive due process rather than the Ninth Amendment itself. Chief Justice Warren Burger referred to it as a “constitutional savings clause,” while Justice Scalia contended that it had no affirmative effect at all.

Conversely, the Tenth Amendment has fared better over the years. In recent times, the Supreme Court has affirmed limitations on federal and even state power in cases concerning voting rights and the regulation of sports betting. Every Supreme Court term witnesses significant cases centered around the balance of state and federal power outlined in the Tenth Amendment. However, instances where individuals successfully challenge a law based on the Tenth Amendment’s reservation of power to the people remain uncommon.

Returning to our attention-grabbing title, the First Amendment and these additional constitutional provisions prevent the government from stifling speech, even when it is unpopular or offensive to some extent. The rationale behind this restriction is quite clear. Throughout history, including during World War II, numerous lives were lost to halt a dictator who seized immense power through violence and by controlling speech, press, dissent, and religious freedom. The German government under the Nazis deployed an unprecedented propaganda machine. This experience demonstrated that the ability to manipulate and control a nation’s understanding and emotions, which the First Amendment and its supporting constitutional sources seek to restrain, is an authority that should never be granted to the government. Consequently, to safeguard against this danger, we have willingly paid the price of allowing speech that many may find disagreeable, offensive, or even immoral. Our commitment to this freedom was amply demonstrated 75 years ago when millions of Europeans welcomed it back into their lives, thanks to the sacrifices made during the invasion of Europe.

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Another unconventional ideal is that the people are the ultimate masters of the government, not the other way around. If politicians occasionally forget this principle, it becomes our duty to remind them at the ballot box. And if we, the people, sometimes fail to remember this fundamental relationship, then we must accept the consequences. Let us reflect on this truth as we commemorate the D-Day anniversary, marking the beginning of the end of a war that claimed the lives of 65 million people—a conflict initiated by a dictator and sustained by eroding the very freedoms enshrined in the First Amendment.

To commence your preparations for the 250th Anniversary of the Declaration of Independence, aptly named the “semiquincentennial,” visit the official website: Garrity Traina.

If you prefer a concise video introduction to the significance of the Magna Carta, narrated by Monty Python’s Terry Jones, who is both a scholar and comedian, follow this link: Magna Carta: An Introduction by Terry Jones.

Gregory J. Brandes is an esteemed law professor and the Dean of St. Francis School of Law. He possesses extensive expertise in legal education and admission to the bar and is admitted to practice before the United States Supreme Court, as well as in Colorado and Illinois.