A federal judge just blocked the Pentagon from punishing Senator Mark Kelly — a retired Navy captain — for telling troops they have a duty to refuse illegal orders. The judge, Richard Leon, ruled that Kelly’s First Amendment rights had been violated. Then he wrote that Pete Hegseth and the other defendants should “more fully appreciate why the Founding Fathers made free speech the First Amendment in the Bill of Rights!”

That’s not what happened. And it matters that a federal judge either doesn’t know that or doesn’t care.

The Federalists — Hamilton, Madison, the people who actually wrote the Constitution — didn’t want a Bill of Rights at all. Hamilton argued in Federalist 84 that listing rights was dangerous. Madison called it a “parchment barrier.” Even Jefferson, writing to Madison from Paris about what a bill of rights should include, listed six rights — religion, press, standing armies, monopolies, habeas corpus, jury trials — and didn’t mention speech. The Bill of Rights only exists because the Anti-Federalists, the people who opposed the Constitution, forced the Federalists to concede it as the price of ratification.

And when Madison was finally dragged to the House floor on June 8, 1789, freedom of speech wasn’t first. It wasn’t second. It wasn’t third. It was buried in his fourth resolution. Congress reorganized the proposals, and what we call the First Amendment was sent to the states as Article the Third. The first two articles failed ratification. The third became the first by accident, not design.

Then, eight years later, the same Federalists who were forced to concede the First Amendment passed the Sedition Act of 1798, making it a crime to criticize the president. The amendment they didn’t want to write didn’t stop them. And the courts didn’t do a damn thing about it.

So when a judge reaches back to the founding to protect speech, he’s reaching for something that cuts both ways. And when he tells the story as though the founders designed this system to protect you, he erases every person who ever had to fight that system to make it do the right thing. The abolition of slavery. Women’s suffrage. Civil rights. None of it happened because the system worked as intended. All of it happened because people resisted.

Right now we’re watching a regime that doesn’t care what the Constitution says, and an opposition that can’t bring itself to do anything but invoke it. The judge handed them another incantation. What they need is a history that tells them the truth: the system was never going to save you. Every right you have was won by people who understood that and acted anyway.

“The Founders Made Free Speech First!” No They Didn’t. Here’s Why That Myth Matters.