The First Amendment Is First for Fighting for Our Liberty (and Sovereignty)

Americans are meant to use expression, communication, association and assembly (including voting), not violence, to assert or defend our rights, our liberty, our sovereignty

This piece is a sequel to Why Is the First Amendment First? The point of that piece was not merely to satisfy curiosity about the sequence in which First Amendment rights and freedoms were enumerated in the Bill of Rights.

The primary point was to show how to prove in a court of law or in the court of public opinion the crucial principle that our Constitution established that the people are sovereign and our Constitution is king. As SCOTUS emphasized in United States Term Limits v. Thornton in 1995, “the critical postulate” of our Constitution is “that sovereignty is vested in the people.”

The secondary point of that prior piece was to highlight that our First Amendment rights and freedoms flow from our sovereignty. Our First Amendment rights and freedoms were not granted to the sovereign people by our mere public servants. They were not granted at all by our Constitution. The text of the First Amendment does not even remotely resemble a grant. It clearly expresses a command by the sovereign people to our public servants: “make no law respecting” or “abridging” certain of our pre-existing rights and freedoms.

The tertiary point of the prior piece was to highlight how our Constitution was designed to empower or encourage people to fight for the rights, the liberty, the sovereignty of the people. Every aspect of the history of crucial documents, (including the documents, themselves) constitutes evidence of the meaning of our First Amendment rights and freedoms. That is especially clearly true of our Declaration of Independence, our original Constitution, the Bill of Rights, the Reconstruction Amendments (XIII-XV) and the Nineteenth Amendment.

The creation, discussion and ratification of the first three such documents clearly constituted exercises of our freedom of thought, expression, communication, association and assembly (the essence of self-government). Madison even made this point expressly on June 8, 1789 when he recommended multiple amendments to secure our First Amendment rights and freedoms: “they assert those rights which are exercised by the people in forming and establishing a plan of government” (a constitution) and “they specify those rights which are retained [even] when particular powers are given up to be exercised by the legislature.”¹

The text of the Declaration of Independence of July 1776 and the text of the May 1776 Resolution and Preamble (discussed in the prior piece) illustrate this principle. The Second Continental Congress was a congress of men who gathered at Independence Hall in Philadelphia to speak for the people. As discussed in the prior piece regarding the reason the First Amendment is first, the crucial and primary point of the May 1776 Resolution and Preamble and the July 1776 Declaration was to declare the sovereignty of the people who would need to fight to secure their sovereignty. As the Declaration’s first paragraph emphasizes, “one People” declared our own decision to “assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them.”

The sovereignty of the people is the essence of the American Revolution. The Revolution consisted of turning the American political world on its head. The people were transformed from subjects into sovereigns, and governments were transformed from rulers into representatives (public servants). Before the Revolution, the legislature (Parliament) made the law, so Parliament was sovereign. The rule of law was that Parliament ruled, and the people were mere subjects. The primary point of the American Revolution and our Constitution was to change the rule of law to make the people sovereign. The American Revolution and our Constitution made the Second Continental Congress and then Congress under our Constitution mere representatives (public servants) of the people.

The foregoing documents of 1776 were ratified as compellingly as they possibly could have been. They were ratified by conventions of men on battlefields essentially voting daily for years with their own lives, liberty and property.

In 1787, once again at Independence Hall in Philadelphia, a convention of most illustrious Americans met to prepare and propose our original Constitution. Immediately afterward, in each state, people elected special representatives—special delegates to ratifying conventions—chosen by the people because of their thoughts and their speech about whether and how to constitute a nation and its government.

Promptly after our Constitution was ratified, the people voted again to choose members of the House of Representatives. In 1789, the First Congress—as our chosen representatives—prepared and proposed the initial amendments, which we eventually came to call our Bill of Rights. Nationwide for years from at least 1786 to 1791, 1798 to 1801 and 1861 to 1870, Americans discussed the provisions of our Constitution and the initial amendments.

Our Constitution made Congress our representatives to govern the executive and judicial branches and to govern state governments regarding matters within federal jurisdiction. As a result, Madison emphasized in Federalist No. 51, “In republican government, the legislative authority necessarily predominates.”

Article I emphasized that the People vested sole power (and the duty) “to make all Laws” that are “necessary and proper for carrying into Execution” the “Powers” of Congress “and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” So the point of the First Amendment’s command that “Congress shall make no law respecting” or “abridging” certain pre-existing rights and freedoms was to emphasize that no department of the U.S. government could make or enforce any such law. The Fourteenth Amendment subsequently emphasized the same for state and local governments: “No State shall make or enforce any law” that “abridge[s]” any First Amendment rights or freedoms, which are “privileges or immunities of citizens of the United States.”

All the foregoing leads to another compelling reason that the First Amendment is first. The rights and freedoms secured by the First Amendment are our means to preserve and protect our rights, our liberty and our sovereignty. It is crucial to see that they protect us as sovereigns over our public servants, not merely our rights, as if we were mere subjects of some ruler. This was highlighted particularly explicitly by James Madison in The Virginia Report of 1800.²

The Report repeatedly correctly placed primary emphasis on the people’s sovereignty. The Report demanded “reverence for our constitution, in the true character in which it issued from the sovereign authority of the people.” It highlighted that “[t]he authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present.” “The people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one, as well as from the other. Hence in the United States, the great and essential rights of the people are secured against legislative, as well as against executive [and judicial] ambition. They are secured, not [only] by laws paramount to prerogative; but by constitutions paramount to laws.”

The Report admonished “a frequent recurrence to” the foregoing “fundamental principles” in our Constitution is “a necessary safeguard against the danger of degeneracy to which republics are liable.” This echoed the prefix to the constitutional amendments (the three declarations) that Madison recommended to the First Congress on June 8, 1789, which Madison emphasized “relates to what may be called a bill of rights.” See footnote 1, below.

The Report also particularly clearly emphasized that the First Amendment is first because exercising the freedoms of thought, expression, communication and association and our right to assemble and petition (the essence of self-government) is how we assert and defend our liberty and our sovereignty. A unanimous SCOTUS emphasized the same principle more than 80 years ago. In New York Times Co. v. Sullivan in 1964 (quoting the Report of 1800) SCOTUS unanimously emphasized that the significance of “the right of freely examining public characters and measures, and of free communication among the people thereon” is that those particular powers and rights were “deemed” to be “the only effectual guardian of every” American “right.”

Those rights and powers are the only effectual guardian of American sovereignty. Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at all levels.” Our freedom of thought, expression, communication and association and our right to assemble and petition truly flow from and are meant to secure the sovereignty of the people over our public servants (our self-government). So SCOTUS quoted Madison later emphasizing that in our “Republican Government,” the “censorial power is” necessarily generally “in the people over the Government, and not in the Government over the people.”

Many additional SCOTUS opinions also emphasized the sovereignty of the people or our right of self-government. Many more stated legal standards by which judges could determine that our sovereignty or our First Amendment rights or freedoms had been violated.

An opinion written by Chief Justice Roberts and joined by every Justice then on the Court except Justice Alito in Snyder v. Phelps in 2011 revealed how the foregoing was reflected in the nature and scope of “the freedom of speech” and “press” secured by the First Amendment.

Snyder powerfully emphasized that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Crucially, “speech concerning public affairs” is “the essence of self-government.” For this proposition Snyder quoted Garrison v. Louisiana in 1964 (issued mere months after New York Times Co. v. Sullivan). Garrison is insightful, in part, because the foregoing statement was asserted specifically to protect even the speech of a government attorney who publicly criticized eight judges, including by implying that were criminally corrupt.

Snyder (quoting New York Times Co. v. Sullivan, above) also re-emphasized our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Snyder also elaborated on the kind of “[s]peech” that “deals with matters of public concern.”

In June 2023, in 303 Creative LLC v. Elenis (quoting West Virginia Board of Education v. Barnette in 1943) every justice on SCOTUS again re-emphasized that no public servant was given the power to “invad[e] the sphere of intellect and spirit which it is the purpose of the First Amendment” to “reserve from all official control.” “The framers designed the Free Speech Clause of the First Amendment to protect” every American’s “freedom to think as” he “will and to speak as” he “think[s].” “They did so,” in part, “because” they understood “the freedom to think and speak” were “among our inalienable [ ] rights.” So it is a “fixed star in our constitutional constellation” that “government may not interfere” with “an uninhibited marketplace of ideas” about public people or public issues.

Elenis (quoting a concurring opinion by the wise Justices Brandeis and Holmes in Whitney v. California in 1927) also emphasized that “[t]he freedom of thought and speech” is “indispensable to the discovery and spread of” the “truth,” especially about how purported public servants purport to serve the public. The people who wrote and ratified our Constitution emphasized that they understood that “allowing all views to flourish” would enable us to “test and improve our own thinking both as individuals and as a Nation.”

Elenis emphasized that “All manner of speech” must “qualify for the First Amendment’s protections” because “the First Amendment’s protections belong” to “all, including to speakers whose motives” some public servants “may find misinformed or offensive.” “[T]he First Amendment protects” every person’s “right to speak his mind” and publish information “regardless of whether the government considers his speech sensible and well intentioned” or “misguided,” even if it causes any listener (including any public servant) “anguish” or even “incalculable grief.”

Another SCOTUS opinion (shortly after Snyder in Reed v. Town of Gilbert in 2015) also is powerfully revealing about the protections afforded to the freedom of speech and press by the First and Fifth Amendments. “Content-based laws” (including any legal authority whatsoever) were declared “presumptively unconstitutional.” Reed also elaborated on kinds of “content-based” restrictions that must be presumed to violate our Constitution.

Any “distinctions” (in any public servant’s repression of expression) “based on the message a speaker conveys” must be “subject[ed] to strict scrutiny.” Such content-based repression must “be justified only” by the government “prov[ing] that” any such regulation protects public “interests” that are “compelling” and also proving that such regulation is “narrowly tailored to serve” such “interest.”

Moreover, any “viewpoint discrimination” is an “egregious form of content discrimination” that is even more clearly “presumptively unconstitutional” than other discrimination based on the content of communications. SCOTUS has emphasized that principle repeatedly, including in Iancu v. Brunetti in 2019 (quoting Rosenberger v. Rector and Visitors of Univ. of Virginia in 1995).

Our First Amendment rights and freedoms are strongly secured by our Constitution and copious SCOTUS precedent because speech (including voting), demonstrations, protests, litigation and petitions are meant to be the means by which we fight for our rights. Exercising First Amendment rights and freedoms was meant to be the means of reform of or even revolution (overturning or changing) in government under our Constitution.

Violence is precluded because our Constitution secures our First Amendment rights and freedoms. Montesquieu emphasized the same principle. The people who framed our original Constitution and our Bill of Rights studied Montesquieu. According to Madison in The Federalist No. 47, “The oracle who is always consulted and cited on this subject” (“the preservation of liberty” by ensuring various sources of “power” are “separate and distinct”) “is the celebrated Montesquieu.” In The Spirit of the Laws, Montesquieu emphasized the following related principles:

The freedom of every citizen constitutes a part of the public liberty; and, in a democratical state, is even a part of the sovereignty [of the people].

[T]he enjoyment of liberty, and even its support and preservation, consists in every man’s being allowed to speak his thoughts and to lay open his sentiments.

With individuals the right of natural defence does not imply a necessity of attacking. Instead of attacking, they need only have recourse to proper tribunals. They cannot, therefore, exercise this right of defence [(physical violence) except] in sudden cases, when immediate death would be the consequence of waiting for the assistance of the law.

1. Madison began by recommending “what may be called a bill of rights,” starting with a “declaration” of the people’s sovereignty:

That all power is originally vested in, and consequently derived from the people.

That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.

Immediately after the foregoing declarations, Madison emphasized how people should work “to reform or change their government.” These rights and freedoms paralleled the people’s limitations on the powers of Congress (Section 9) or of states (Section 10) in Article I of our Constitution, and they necessarily included voting and the electoral process.

At the outset, Madison recommended the following limitations on the power of federal public servants:

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

Madison also recommended the following to secure freedom of conscience:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.

Madison also emphasized the right (and, sometimes, the duty) of people to exercise First Amendment rights and freedoms in connection with criminal prosecutions:

The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury, shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorised in some other county of the same state, as near as may be to the seat of the offence.

In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.

Following the foregoing, Madison more concisely recommended limitations on the power of state public servants (which Amendment XIV subsequently imposed):

No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

Madison highlighted that the foregoing were among the “great rights” that were unprotected by the unwritten “British constitution” (which also improperly left unlimited “the power of the legislature”) and which also were not expressly secured by our original Constitution, which left “the people of America are most alarmed.”

In the declaration of rights [of 1689 that England] established, the truth is, they have gone no farther, than to raise a barrier against the power of the crown; the power of the legislature is left altogether indefinite. Altho’ I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, came in question in [Parliament], the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which, the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British constitution.

2. A great constitutional controversy had erupted over the Sedition Act of 1798. Madison prepared the Report for the Virginia legislature to vehemently expose and oppose the violations of our Constitution by the President, the Secretary of State, the majority of Congress, SCOTUS Justice Samuel Chase and other judges. Those officials made and purported to enforce a federal law (the Sedition Act of 1798) to punish criticism of federal government employees. Madison emphasized that the federal statute violated our Constitution and the sovereignty of the people, and the enforcement (by executive and judicial officers) was far more unconstitutional than the statute, itself. Madison emphasized such conduct was marked by “reproachful inconsistency, and criminal degeneracy.” In purporting to enforce Section 2 of the Sedition Act of 1798, judges and executive officers committed at least one “high misdemeanor” in Section 1 of the Sedition Act.