We the People Must Exercise Our First Amendment Freedoms to Emphasize the First Principle of Our Constitution--Our Sovereignty

The Common Cause of the Founders who Wrote and Ratified the Declaration of Independence, the Constitution and the First and Fourteenth Amendments

It seems especially necessary and proper at this time to again illuminate and emphasize the first words of our Constitution. We are now plagued with actions of federal (purported) public servants attacking people for exercising the rights and freedoms secured by the First Amendment. Their open and notorious attacks evidence a huge collective blind spot in our view of our Constitution.

For about a year, federal judges have been attacking students and universities for exercising their freedom of speech and press and freedom of association (in clear and flagrant violation of the First Amendment). Now, the president and U.S. Department of Justice attorneys are attacking students, universities, judges, individual attorneys, entire law firms, and many federal employees for the same reasons. Our purported public servants are making a sham and a shambles of our Constitution.

If SCOTUS ever even considers the first words of our Constitution, it almost always is to essentially (and clearly erroneously) dismiss them as a mere “preamble.” SCOTUS justices very seldom have acknowledged that the so-called Preamble has profound fundamental substantive significance. But that has been changing.

Every current SCOTUS justice (with the possible exception of Justice Kavanaugh) and many recent past justices authored or joined in opinions (majority, plurality, concurring or dissenting) emphasizing the profound principle underlying our entire Constitution, which was evidenced most strikingly by the first words of our Constitution--the sovereignty of the people. SCOTUS justices’ occasional honorable mentions of the first words of our Constitution are important but egregiously inadequate.

Coincidentally, in 2026 we will celebrate the 250th anniversary of our Declaration of Independence and its crucial second paragraph (one people declaring our independence from all tyranny and abuses of power by people in power).¹ But right now, America needs a national dialogue that truly does as Chief Justice Marshall admonished speaking for a unanimous SCOTUS in 1819 in McCulloch v. Maryland: “we must never forget, that it is a constitution we are expounding.”

We have, collectively, too often forgotten that our Constitution is the written elaboration of how one people formed one nation. We have forgotten that our Constitution is a written elaboration on and establishment of the legal and political principles and precautions stated in our Declaration of Independence. We have forgotten how We the People established and asserted our sovereignty (generally, the personal sovereignty of each person over himself or herself, and also the political sovereignty of the people collectively over all public servants).

In McCulloch, Chief Justice Marshall speaking for a unanimous SCOTUS also elaborated on the most important principles of “the people” that made us a nation:

“The government of the Union” is “emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and [exclusively] for their benefit. This [national] government is acknowledged by all to be one of enumerated [limited] powers. [ I]t can exercise only the powers granted to it . . . . . That principle is now universally admitted.”

As Justice Alito (joined by Justices Scalia and Thomas) put it in a dissenting opinion in Obergefell v. Hodges in 2015: “In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny.”

The vital words that the Founders and Framers chose to introduce our Constitution were designed to introduce the American sovereign. Justice James Wilson (the Founder and Framer who is perhaps most responsible for the fact that our Constitution begins with the words “We the People”) explained the profound significance of what many public servants (including many SCOTUS justices for hundreds of years) routinely dismissed as a mere "preamble."

Justice Wilson in 1793 in Chisholm v. Georgia emphasized that the first and foremost separation of powers in our Constitution is between the sovereign people and our public servants: “ ‘The PEOPLE of the United States’ are the first personages introduced” by our Constitution. “To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. . . . [T]hose, who ordained and established that Constitution" rightfully could “have announced themselves ‘SOVEREIGN’ people of the United States.”

The first words of our Constitution introduce American sovereigns and emphasize that “We the People” did “ordain and establish” our “Constitution” and our “Union” to “establish Justice” and “secure the Blessings of Liberty to ourselves.” Those were our first words as Americans—as one people of one nation. They were our first words as a nation.

Thinking about the sequence of introducing personages, a clear pattern emerges. Even the structure of Articles I, II and III emphasize the sovereignty and supremacy of the people. After our Constitution introduced the People, it introduced our directly-elected representatives (Congress), then, our indirectly-elected representative (the president), and, last, the unelected judges of SCOTUS and lower courts.

Article VI emphasized that our “Constitution” and federal “Laws” that were “made in Pursuance thereof” (by our representatives who may be held accountable to us in elections) and “Treaties” are “the supreme Law of the Land; and the Judges in every State” (all judges throughout our nation) are “bound thereby.” It also emphasized that the first, foremost and constant duty (and loyalty) of all legislators and “all executive and judicial Officers, both of the United States and of [all] States” is “to support this Constitution.”

The words of every article in the Constitution further emphasized the sovereignty and supremacy of the people over our public servants. In Article I, the sovereign people emphasized that nobody in federal government could exercise any power that was not “necessary and proper for carrying into Execution” the “Powers vested by this Constitution in the Government of the United States” (for the purposes stated in the Preamble). In Section 1 of Articles I, II and III, the sovereign people “vested in” (delegated only limited powers to) our public servants in “Congress,” in and under the office of the “President,” and on the “one supreme Court” and “inferior Courts” that “Congress” was delegated the power to “ordain and establish.”

The Ninth Amendment expressly emphasized a principle that was implicit in the original Constitution: all “rights” are “retained by the people” regardless of whether any right (ever) is included in any “enumeration in the Constitution.” The Tenth Amendment did the same. It expressly re-emphasized that We the People “by the Constitution” merely “delegated to the United States” certain limited “powers” and “prohibited by it [our Constitution] to the States” certain “powers” (e.g., in Article I, Section 10 and Amendments XIII, XIV, XV, XIX, XXIV and XXVI) and we “reserved to the States” certain powers and “reserved” to “the people” all residual “powers.”

All the foregoing established and confirmed (repeatedly) that We the People clearly did not vest any power in any federal public servant to abridge any right or freedom in the First Amendment. Many times, the Founders and Framers emphasized that our Constitution vested no such power.

In emphasizing that our original Constitution established that We the People did not even need to reserve any right that is now secured by our Bill of Rights, Alexander Hamilton in The Federalist No. 84 asked: “why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

The First Amendment emphasizes rights and powers that the people necessarily exercised to create, empower and restrain state, as well as federal, governments. So the First Amendment emphasizes rights and powers that the people necessarily retained when We the People created our nation, e.g., freedom of thought, expression, association and assembly. No public servant was delegated in the U.S. Constitution or could possess under any state constitution any power to injure any of us for exercising our First Amendment rights or freedoms.

We the People need to be more clear and more emphatic in reminding our public servants of their proper place (as Article III emphasizes) “under this Constitution” and “the Laws of the United States.”

1. Unlike the Constitution (including any amendment), the Declaration of Independence was not ratified by any verbal or written vote. It was ratified in the most direct, most emphatic and most compelling manner possible. It was ratified, most obviously, by the people who fought for it in conventions of citizens known as the Continental Army and state militias.