Why is the First Amendment first? That conundrum has bedeviled even the best constitutional law scholars.1 More than one solution is possible depending on how much enlightenment one seeks and how deep one delves into the darkness. The answer seems to many to be a mystery. But the wisdom of John Locke is the key to seeing that the solution to this riddle is as simple as it is profoundly substantive.
The simple and most obvious substantive reason that the First Amendment is first is that Congress is the first department of the federal government introduced by our Constitution. The First Amendment expressly emphasized that “Congress shall make no law” on certain subjects because Article I expressly emphasized that in Congress the People vested sole power (and assigned 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.”
As satisfying as the foregoing solution might seem at first bite, ruminating on it more should leave us hungry for much more. The conclusion that the First Amendment is first because Congress is the first department introduced in our Constitution simply begs the crucial question. Why is Congress first? The solution to that riddle is simultaneously simple and extremely substantive. The solution is in the essence of the American Revolution.
In mid-May 1776, the Second Continental Congress addressed the reason men already were fighting and why many more should fight. Congress made a point of prominently publishing a Resolution. The express purpose was to prompt states to write their own constitutions. But the implicit purpose was revealed in and regarding a profound and powerful Preamble. The Preamble explained what states should write and why men should fight. The Resolution was written by a Virginian, Richard Henry Lee, in collaboration with John Adams. Adams penned the Preamble.
The May 1776 Preamble declared that in America “all the powers of government” would and must be “exerted” only “under the authority of the people” and exclusively for “the defence of their lives, liberties, and properties” and “the preservation of internal peace, virtue, and good order.” All “government” would and must be instituted by “the representatives of the people” exclusively to “best conduce to the happiness and safety of” individual “constituents” and “America in general.” The Resolution emphasized that “Government” will do whatever is “necessary” (and only what is necessary) to “promote the Happiness of the People.”
In a letter, Adams revealed that the May 1776 Resolution and Preamble were intended and expected to have three consequences. First, the people will institute “Government under the People.” Second, having done so, the people never “will give it up.” “People will never give up” a form of “Government” that is to be by their representatives “of their own Choice, whom they could trust, and whom they could displace if any of them should behave amiss.” Third, “Government of our own Choice, managed” only “by Persons whom We love, revere, and can confide in” (in whom we can have confidence) is a cause “for which Men will fight.”
Adams highlighted a crucial principle. The Americans of the Revolutionary War did not fight for mere independence from Britain. Americans fought for our liberty, especially our right to be free from all oppressive governments. In May 1777, Nathanael Greene, one of the most distinguished and important generals of the Revolutionary War wrote to John Adams (who was then, essentially the Secretary of Defense) to emphasize, “I can assure you, I am not fighting for a change of Masters, but to have none but the Law.”
In June 1789, James Madison, himself, highlighted that Americans once again saw themselves as fighting for our rights and our liberty. Madison highlighted for Congress that the essential quality of the first amendments to our Constitution was their ability “to extinguish from the bosom of every member of the community any apprehensions, that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled.”
Americans always have fought and bled for our honor and our liberty. Our flying flag’s horizontal stripes obviously symbolize the fighting and writing (blood and paper, deeds and documents) that have enabled the sovereign people to reach the stars, true safety in ordered liberty.
The same causes and consequences as in the May 1776 Resolution and Preamble were emphasized again in the famous Declaration of Independence of July 1776: “Governments” will be “instituted” with only “just Powers” derived exclusively “from the Consent of the Governed” solely “to secure [our] Rights,” including to “Life, Liberty, and the Pursuit of Happiness,” and “whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government.” These were the precise causes and consequences for which all Americans were called on to “mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.”
The revolutionary documents of 1776 declared what and why Congress was designed to be under our Constitution. For those reasons, all members of the House and one-third of the Senate must stand for election every two years, and they all are elected directly by voters. Moreover, each election has the potential to be a revolution.
To see the significance of the power of the people to directly elect members of Congress, we should look first to James Wilson. Wilson is the only person to have signed both the Declaration of Independence and the Constitution and then be appointed to the U.S. Supreme Court. Wilson is the Founder and Framer who is most responsible for the fact that our Constitution begins with its first words “We the People.” Wilson explained the profound significance implicit in what many call the “Preamble” to our Constitution. The Preamble is, in fact, the most important and most profound part of our Constitution. It is first for a reason that is simple and sublime.
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,” and there is only “one place where it could have been used with propriety.” Only “those, who ordained and established that Constitution” 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 “secure the Blessings of Liberty to ourselves.” Those were our first words as Americans. They were our first words as one people. They were our first words as a nation.
Thinking about Wilson’s point (the sequence of introducing personages) reveals a clear pattern. 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. All that makes sense. Congress is first because its members are the representatives whom the people have the right, the power and the duty to choose or remove directly and most frequently.
We could be satisfied and stop there. But we certainly should not. Wilson often, emphatically and quite capably enlightened the people about our sovereignty. But James Madison was even more compelling regarding the profoundly substantive reason that the First Amendment is first.
In Federalist No. 51, Madison emphasized, “In republican government, the legislative authority necessarily predominates.” At first glance, the “legislative authority” most obviously is Congress. That is true as far as it goes. As the Necessary and Proper Clause quoted above established, Congress predominates over the executive and judicial branches by having the power and duty to make all laws governing the powers of the executive and judicial branches.
Moreover, the first sentence of Article I emphasizes, “All legislative Powers herein granted shall be vested in a Congress.” But the first sentence of Article I meant and means nothing more than that the People granted a limited part of our own legislative authority to Congress to represent the People. Amendment X expressly emphasized that crucial point. The People “by the Constitution” merely “delegated to the United States” only limited “powers,” and the People “reserved” to “the people” our powers as the sovereign.
As Wilson accentuated—as the Preamble expressly declared—the People are the ultimate legislative authority in America. “We the People” (as sovereigns) did “ordain and establish” our “Constitution” to “secure the Blessings of Liberty to ourselves.”
In case any doubt could possibly remain about the People being the supreme legislative authority in America, Article VI emphasized that our “Constitution” was first in “the supreme Law of the Land,” and only those federal “Laws” that had been “made in Pursuance” of our Constitution could be “the supreme Law of the Land.” Article VI further required all legislators (state and federal) (and “all executive and judicial Officers”) to expressly acknowledge “by Oath or Affirmation” that in all official conduct they are “bound” to “support” our “Constitution.” All federal and state law and all the people who make it, enforce it or interpret it must support our Constitution. Our Constitution is one law to rule them all.
Chief Justice John Marshall (writing for SCOTUS in the famous decision of Marbury v. Madison in 1803) confirmed the obvious meaning of the foregoing plain text of Article VI. “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of [any] legislature, repugnant to the constitution, is void.” Chief Justice Marshall and SCOTUS emphasized that any person violating their oath commits “worse than solemn mockery” of our Constitution, and any person who dares “take this oath” without believing it commits “a crime.”
At long last you might ask, “How is Locke the key?” John Locke published his Second Treatise of Government in 1689—100 years before our Constitution was ratified in 1789. That was 100 years before the First Congress was seated and proposed amendments that became our Bill of Rights. For 100 years before our Constitution was ratified and Congress prepared and proposed the first amendments, Americans had been thinking about Locke’s thoughts.
Madison was a member of the First Congress. He sometimes single-handedly pushed and pulled Congress to immediately propose multiple amendments that were massaged, manipulated and even mutilated for months before they eventually were forwarded to the states for ratification.
This is a crucial point. Congress merely prepared and proposed 12 amendments on September 25, 1789. Madison’s home state of Virginia ratified on December 15, 1791, and it was the last state needed for ratification to become effective. Virginia was the 11th state to ratify, but 14 state were included in our Union. With Virginia’s ratification, the Bill of Rights became part of our Constitution for the entire U.S. (even the states and people who had not yet ratified those amendments).
This is another crucial point. When the amendments were finally ratified, the first two proposed amendments had failed to gain the support in the people and states required for ratification. The first amendment that was ratified (by the People) was our First Amendment. That very process re-emphasized a crucial point that Wilson highlighted repeatedly: the People are sovereign, and the People possess the ultimate legislative authority in America.2
In Arizona State Legislature v. Arizona Independent Redistricting Comm’n in 2015, the SCOTUS majority opinion by Justice Ginsburg (and joined in by Justices Kennedy, Breyer, Sotomayor and Kagan) highlighted a crucial truth and a crucial source. They emphasized the self-evident truth that “the animating principle of our Constitution” is “that the people themselves are the originating source of all the powers of government.” “The people’s ultimate sovereignty had been expressed by John Locke in 1690.” “Our Declaration of Independence, ¶2, drew from Locke.” They also quoted Locke for a crucial truth: “[T]he Legislative” (state or federal) is “only a Fiduciary Power to act for certain ends,” and “there remains still in the People a Supream Power to remove or alter the Legislative, when they find the Legislative act contrary to the trust reposed in them.”
Locke constantly and profoundly influenced generations of the people who fought to found and shape our nation (including, but not limited to, during the Revolutionary War, or while causing our Constitution, our Bill of Rights, the Reconstruction Amendments (Thirteen through Fifteen) or the Nineteenth Amendment to be written or ratified).
In his Second Treatise of Government, Locke repeatedly explained and emphasized how to see who was sovereign and why they were sovereign. Locke emphasized that the supreme power was the power that made the law. Locke repeatedly emphasized that “the supreme power” in government is “the legislative.” The legislative power in the U.S. is held, first, by the People who ratified our Constitution (including amendments) and, second and subordinately, is it held by a legislature (Congress) in whom the People vested only limited power to make laws only “in Pursuance” of our Constitution (as Article VI emphasizes), i.e., only laws that are both “necessary and proper” (as Article I emphasizes).
In our Constitution, as Locke emphasized, “the supreme power” necessarily “is the legislative.” § 132. Section 132 emphasized what our Constitution provides: “the legislative power” may “be at first given by the majority [of the people] to one or more persons only” for “any limited time.” But “then the supreme power” necessarily does “revert to them [the people] again” with each election, and “when it is so reverted, the community may dispose of [the legislative power] again anew into what hands they please, and so constitute a new form of government.” “The majority” of the people who ratified our Constitution had “the whole power of the community naturally in them,” and they “may” (and did) “employ all that power in making laws” (our written Constitution, including its amendments) “for the community” and they “may put the power of making laws into the hands of a few select men,” i.e., Congress.
“The great end of men’s entering into society,” Locke emphasized and early Americans believed, is “the enjoyment of their properties in peace and safety, and the great instrument and means of that” end is having “the laws established in that society;” so “the first and fundamental positive law of all commonwealths is the establishing of the legislative power.” § 134. “This legislative [will of the people established in and by our Constitution] is not only the supreme power of the commonwealth, but sacred and unalterable” except as permitted by our Constitution. No “edict of any body else, in what form soever conceived, or by what power soever backed,” can “have the force and obligation of a law, which has not its sanction from that legislative [our Constitution] which the public has chosen and appointed: for without this the law could not have that, which is absolutely necessary to its being a law,” i.e. “the consent of the society, over whom no body can have a power to make laws, but by their own consent, and by authority received from them.”
“The legislative” is the “supreme authority” and “is bound to dispense justice, and decide the rights of the” people “by promulgated standing laws.” § 136. “We the People” did “ordain and establish” our “Constitution” to “establish Justice” and “secure the Blessings of Liberty to ourselves.” That, following the logic of Locke, is the reason the First Amendment is first.
Yale’s Sterling Professor of Law and Political Science, Akhil Reed Amar, dared to go where few had gone. “The First Amendment’s Firstness,” 47 U. C. Davis Law Review 1015 (McClatchy Lecture on the First Amendment).
Some say our First Amendment is first because the people (represented by state legislatures) did not ratify the first two amendments that were prepared and proposed by Congress. But that merely begs the question. Why did the people choose not to ratify the first two proposed amendments? The answer might be as simple as Thomas Jefferson’s insistence that “a bill of rights is what the people are entitled to against every government on earth, general or particular,” i.e., federal or state, and a bill of rights is “what no just government should refuse or rest on inference.” The sovereign people expected and demanded a bill of rights, and a bill of rights is what they got.
Another good and informative piece. How far we've strayed from these original understandings of sovereignty and the locus of power.