A subject that came up in my Bill of Rights seminar this semester is the fallacy that the rights included in the First Amendment were the most important ones because . . . well, they came first. Of course, this is wrong. The First Amendment proposed by Congress to the states concerned the structure of the House of Representatives. Our First Amendment was third in that list.
I think that the “First Amendment was first” error was first made by Justice Robert Jackson, who was a brilliant writer but not the most careful one. Dissenting in Everson v. Board of Education, Justice Jackson said that religious “freedom was first in the Bill of Rights because it was first in the forefathers’ minds; it was set forth in absolute terms, and its strength is its rigidity.” I’m looking for other examples though.