Important and essential observations about where we are in our discourse. I have long since tired of listening to news commentators discuss what might happen, and what so and so THINKs might happen- rather than what has happened. Now I have a larger context within which to place my frustration. I look forward to your following articles.
Adam, I liked a lot of what you wrote. Even so, you made me feel that you're trying to justify a mere label and that may cripple your quest for enlightenment: in "the coming columns, I’ll take up a series of questions about what democracy is and why it matters."
To support your plan to devote multiple columns to saying “what democracy is and why it matters,” you said “first principles matter. Without them, we are left circling endlessly around our own reflections. With them, we can recover the ground on which to stand.” Even so, you said “[o]ur first principles are not given.” But they were given, and democracy was not among them.
Your contention reminded me of one of my favorite scenes in any movie. In “Hidden Figures,” a (mere) mathematician discovered a truth that eluded real rocket scientists: https://youtu.be/v-pbGAts_Fg. She realized they didn’t need to invent “new math.” They needed to re-discover the relevance of ancient math. That’s what we need, too.
“Democracy” is a mere label. Even worse, it is a mere label for an ideal that isn't real. We have a Constitution, not a democracy. Our Constitution expressly emphasizes that it secures “a Republican Form of Government.” Instead of embracing and elaborating on the plain meaning of the plain text of our Constitution, you intend to tell us “what democracy is and why it matters.” The label “democracy” cannot matter more than our Constitution. Why not focus our attention on what our Constitution means and why it matters?
Even worse, you say our “Constitution, like any rule, only matters if we believe in it.” That sounds to me a lot like mere faith. Coincidentally, our Constitution repeatedly emphasizes that faith poses a great danger to our Constitution. For that particular reason the original Constitution commanded that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Very promptly after ratification the original Constitution was amended, and the First Amendment’s first prohibition was on any “law respecting an establishment of religion.” We need knowledge, not faith. Far too often, faith is an excuse for inaction. That’s why far too many people far too often think it is “enough that we live in a country with a Constitution.”
By now, you must know that our “Constitution, like any rule, only matters” if it is enforced, and to be enforced, it must be understood. Isn’t now an excellent time to learn what our Constitution means and why it matters?
We need to re-learn the significance of the admonition of Chief Justice Marshall and SCOTUS in McCulloch v. Maryland: "we must never forget, that it is a constitution we are expounding." SCOTUS did not mean constitution as a document. SCOTUS meant constitution as an action, i.e., constituting one nation of one people (e pluribus unum).
Chief Justice Marshall and SCOTUS also elaborated on the most important principles of our Constitution documenting the constitution of a nation of one people:
"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."
Emphatically, "the Constitution begins with the principle that sovereignty rests with the people." Alden v. Maine, 527 U.S. 706, 759 (1999). It was "the people" who did "ordain and establish the Constitution." Id. Clearly, "the animating principle of our Constitution" was "that the people themselves are the originating source of all the powers of government." Ariz. State Legis. v. Ariz. Indep. Redistricting Comm'n, 576 U.S. 787, 813 (2015). It is crucial to see "the Constitution’s conception of the people as the font of governmental power." Id. at 81.
Far more important, however, is understanding what Madison said was demanded by the "genius of republican liberty." "The genius of republican liberty seems to demand . . . not only that all power should be derived from the people, but that those intrusted with it should be kept in dependence on the people." Id. (quoting The Federalist No. 37). The most democratic aspect of our Constitution is documented in the First Amendment, but the most important aspect of the First Amendment is that it elaborates on the most important principle in our Constitution.
In our “republic” clearly “the people are sovereign” and “the ability” (the power) “of the citizenry to make informed choices” about public servants and public issues “is essential.” Citizens United v. FEC, 558 U.S. 310, 339 (2010). “Speech is an essential mechanism of democracy,” in part, because it is “the means to hold officials accountable to the people.” Id.
More importantly and more fundamentally, “[t]he right of citizens to inquire, to hear, to speak, and to use information” is essential “to enlightened self-government and a necessary means to protect it.” Id. Accord id. at 339-341, 344-350. “Premised on mistrust of [all] governmental power, the First Amendment stands against attempts to disfavor” the “subjects or viewpoints” of speech, especially regarding our public servants’ purported performance of their public service. Id. at 340. The First Amendment expresses and secures the sovereignty of the people.
The Preamble clearly and concisely states our first principle: "We the People of the United States" did "ordain and establish [our] Constitution" to "secure the Blessings of Liberty to ourselves." If I understood you correctly, you plan to tell us how our Constitution was designed to secure the blessings of liberty to the people.
Thank you for your thoughtful comment. You are right that the First Amendment’s prohibition on imposed belief is essential. But that principle doesn’t just bar blind faith in religion; it also stands against blind faith in the text itself. The very insight you emphasize — that we should not accept belief without scrutiny — extends to the Constitution. The fact that the Constitution says something does not make it immune from the very principle it articulates: belief must be earned, not imposed. The Enlightenment, which inspired the people who wrote those words, was about freeing individuals from imposed belief, whether from God, institutions, or even a document ratified by people far removed from us.
This brings me to the heart of the matter. You suggest that we should return to the Constitution, much like rediscovering old math. But why did they get it right when they wrote those words down? The Constitution itself demands that we ask that question. We cannot assume its wisdom without understanding why those principles matter, and we cannot stop there. The text of the First Amendment does not answer every question — it does not tell us how to apply free speech in a world of social media or modern challenges. The law, as Hart would say, has an open texture. The text runs out, and that is where we must apply the why — why these principles matter, why they still matter, and what that means today.
Without that understanding, the Constitution cannot guide us through the complexities of our time. The process of reaffirming these principles is precisely what makes the Constitution an action, as you rightly note. It is up to the people to continually engage, debate, and reaffirm why these principles matter. We must believe them anew, because if we do not, the mere fact that they are written will not save them.
Adam, the primary point of my original comment was that Americans need to rediscover the meaning of our Constitution as a description of our constitution as a nation. You invoked the First Amendment, so allow me to offer this example illustrating my point by addressing the First Amendment.
A U.S. District Court judge in Massachusetts recently declared some conduct by Trump and his supporters violated the First Amendment. Judge Young also made statements about the First Amendment that clearly were contrary to our Constitution.
It is true that "presidents have First Amendment rights." But it is not true that “there can be no constraint of any sort on the speech of the President of the United States, be that speech statesmanlike, magnanimous, and unifying or ‘foolish’ and ‘knavish.’" It is not true that, "[a]s President, he has the absolute and undoubted right to speak.” It is not true regarding even one of Trump's attacks on our First Amendment rights and freedoms that "this the First Amendment capaciously and emphatically allows." This is a crucial point that all judges (and all lawyers and law professors and even all Americans) need to re-learn and learn to really respect.
The starting point for a careful consideration of the powers of the president must begin with our Constitution's Preamble. It emphasized that "We the People" did "ordain and establish" our "Constitution" to "establish Justice" and "secure the Blessings of Liberty to ourselves." This is the heart and soul of our Constitution. It emphasizes a crucial, overarching principle that is only implicit in our Constitution's text and structure.
As Justice James Wilson emphasized in 1793 in Chisholm v. Georgia, “the term SOVEREIGN” is not used in our “Constitution.” But the Preamble is the “one place where it could have been used with propriety.” Only those “who ordained and established” our “Constitution” could “have announced themselves ‘SOVEREIGN’ people of the United States.” Justice Wilson highlighted how the first and foremost separation of powers in our Constitution is between the sovereign people and all public servants: “The PEOPLE of the United States” are “the first personages introduced.”
After introducing the sovereign (the people), the text and structure of Articles I, II and III further emphasized the people’s sovereignty. They introduced our directly-elected representatives (Congress), then, our indirectly-elected representative (the president), and, last, our unelected representatives (judges). The people “vested” only limited powers in public servants in and under “Congress” (U.S. Const. Art. I, §1), the “President” (Art. II, §1) and the “supreme Court” and “inferior Courts” that “Congress” was delegated the power to “ordain and establish” (Art. III, §1).
After seeing the foregoing, then we can see the true significance of the oaths of office of our public servants. Article VI emphasizes that the first, foremost and constant duty of every legislator and "all executive and judicial Officers" (state and federal) is "to support" our "Constitution" in everything they do. Article II more specifically emphasizes that the president's first, foremost and constant duty is to "preserve, protect and defend the Constitution of the United States" to "the best of" his "Ability."
The true significance of the oaths of office, the first sentences of Articles I, II and III (the people vesting limited powers in public servants) and the Preamble is clearly that no public servant--no legislator, no president, no judge, no DOJ attorney--was given any power to say whatever they want. Everything our public servants say must be to fulfill their oaths to support our Constitution.
The principle that guides the First Amendment is that the people are sovereign, and we did not vest in any of our public servants in the federal government any power to make or enforce any purported law that would abridge the freedom of thought, expression, communication and association secured by the First Amendment.
Adam, you're right. Much harm can come from thinking of our Constitution as some kind of sacred or religious text with a meaning fixed by God or some demi-gods. Many people treat the Declaration of Independence or the Constitution or the Bill of Rights as analogous to religious text or even a mere religious relic. They hang fancy versions of documents in frames on walls (or keep fancy versions in a shrine at the National Archives), and many never think more than superficially about the content.
That sort of blind faith or confidence is anti-constitutional. It leads to treating the principles and purpose of our Constitution (and our constitution as a nation of one people) as dead dogma (as John Stuart Mill put it in "On Liberty") or as irrelevant old math, supposedly too simple for our purportedly sophisticated society. The truth is that our Constitution is simultaneously very simple and extremely sophisticated.
Self-government requires much work by the people, themselves, not only by our public servants. As Justice Brennan writing for a unanimous SCOTUS in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) emphasized repeatedly, the First Amendment does not merely secure a "right" and a "privilege," it imposes a "duty" on the people. 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.” The people are sovereign, so the people need to think and act like sovereigns.
Self-government is hard work. It requires education and effort, not faith and not facile or complacent confidence. Self-government implies duty and work, not mere confidence or faith in our documentation or our representation. James Madison, for example, emphasized that principle repeatedly. The Federalist Papers repeatedly referred to various people as sentinels or guardians.
Madison also repeatedly emphasized the vital reason that the First Amendment secures the freedom of speech and the freedom of the press:
"A popular Government, without popular information, or the means of acquiring it, is but a prologue to a Farce or a Tragedy; or perhaps both. Knowlege will for ever govern ignorance: and a people who mean to be their own Governours, must arm themselves with the power which knowledge gives."
You're also right that "[t]he text of the First Amendment does not answer every question — it does not tell us how to [comprehend or govern 'the freedom of speech'] in a world of social media or modern challenges." One of the great and egregious failings of nearly all law schools and nearly all law professors is that they purport to teach our Constitution as if it were a mere collection of clauses. Law professors and judges too often fail to teach our Constitution consistent with the admonition of Chief Justice Marshall and SCOTUS that we must construe our Constitution by construing our constitution as one people of one nation. Such construction is not simple, but it also is not new.
It is the duty of the people to think constantly and carefully about our Constitution and work out the details of our own self-government. That's the point of our Constitution securing our right and power to discuss and vote regarding public persons and public measures.
As Justice Jackson writing for SCOTUS put it in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), it is "our duty" (not only of judges and lawyers, but all Americans) "to apply the Bill of Rights to assertions of official authority" to fulfill our "task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of [each new] century." "These principles grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men's affairs. We must transplant these rights to" the "soil" of our country in our century.
Transplanting "the majestic generalities" of our written Constitution to our country in our century requires (merely) starting with "the pattern of liberal government of the eighteenth century." It requires understanding every principle and purpose in the Preamble as securing the sovereignty of the sovereign people of today (as established by Amendments XIV, XV, XIX, XXIV and XXVI).
The majestic generalities of the First and Second Amendments, alone, never were meant to control how we may use (and how our public servants may govern our use) of words or swords. The majestic generalities of the Preamble are at least as relevant, as are the general principles implicit in structural restraints of federalism and separation of powers between departments of government.
Thank you, Danielle! My understanding of Marshall's meaning was influenced by facts that I'm sure you already know, but I'll mention them for the benefit of others.
Marshall and Madison were Federalist delegates to the Virginia ratifying convention in 1788 (after Madison, Hamilton and Jay wrote The Federalist Papers). Virginia was one of the states that held off ratifying the original Constitution because of the absence of a bill of rights, and Madison was the primary force in Congress supporting the first 10 amendments, which are known as the Bill of Rights. Virginia became the final state required to ratify what became the first 10 amendments on Dec. 15, 1791.
The four to five years of proceedings and processes, (including multiple state and national elections and state conventions) involved in having the original Constitution written and ratified and then the first 10 amendments written and ratified (and the nature of the discussions during those years) underscored that many people understood that they were constituting a new nation out of 13 separate nations.
"We the People of the United States" constituted our own new nation. In striking contrast, the Articles of Confederation had emphasized that the Confederation had been created by mere state legislatures as a mere "league of friendship" in which "[e]ach state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."
As Marshall, Madison and John Adams highlighted, many people also understood that they were changing the nature of the national sovereign. In many states, the legislatures had written the constitutions, so the legislatures (like Parliament before them) were seen as sovereign. The U.S. followed the example first set by John Adams and Massachusetts. Ratification by the people made "the People of the United States" the supreme legislative power, i.e., the sovereign (consistent with Locke's thoughts about supreme power in his Second Treatise of Government paragraphs 132, 134, 136, 149, 150).
Less than 2 years after the Bill of Rights was ratified, Justice James Wilson and Chief Justice John Jay published opinions in Chisholm v. Georgia in 1793 to emphasize the sovereignty of the people.
Important and essential observations about where we are in our discourse. I have long since tired of listening to news commentators discuss what might happen, and what so and so THINKs might happen- rather than what has happened. Now I have a larger context within which to place my frustration. I look forward to your following articles.
Adam, I liked a lot of what you wrote. Even so, you made me feel that you're trying to justify a mere label and that may cripple your quest for enlightenment: in "the coming columns, I’ll take up a series of questions about what democracy is and why it matters."
To support your plan to devote multiple columns to saying “what democracy is and why it matters,” you said “first principles matter. Without them, we are left circling endlessly around our own reflections. With them, we can recover the ground on which to stand.” Even so, you said “[o]ur first principles are not given.” But they were given, and democracy was not among them.
Your contention reminded me of one of my favorite scenes in any movie. In “Hidden Figures,” a (mere) mathematician discovered a truth that eluded real rocket scientists: https://youtu.be/v-pbGAts_Fg. She realized they didn’t need to invent “new math.” They needed to re-discover the relevance of ancient math. That’s what we need, too.
“Democracy” is a mere label. Even worse, it is a mere label for an ideal that isn't real. We have a Constitution, not a democracy. Our Constitution expressly emphasizes that it secures “a Republican Form of Government.” Instead of embracing and elaborating on the plain meaning of the plain text of our Constitution, you intend to tell us “what democracy is and why it matters.” The label “democracy” cannot matter more than our Constitution. Why not focus our attention on what our Constitution means and why it matters?
Even worse, you say our “Constitution, like any rule, only matters if we believe in it.” That sounds to me a lot like mere faith. Coincidentally, our Constitution repeatedly emphasizes that faith poses a great danger to our Constitution. For that particular reason the original Constitution commanded that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Very promptly after ratification the original Constitution was amended, and the First Amendment’s first prohibition was on any “law respecting an establishment of religion.” We need knowledge, not faith. Far too often, faith is an excuse for inaction. That’s why far too many people far too often think it is “enough that we live in a country with a Constitution.”
By now, you must know that our “Constitution, like any rule, only matters” if it is enforced, and to be enforced, it must be understood. Isn’t now an excellent time to learn what our Constitution means and why it matters?
We need to re-learn the significance of the admonition of Chief Justice Marshall and SCOTUS in McCulloch v. Maryland: "we must never forget, that it is a constitution we are expounding." SCOTUS did not mean constitution as a document. SCOTUS meant constitution as an action, i.e., constituting one nation of one people (e pluribus unum).
Chief Justice Marshall and SCOTUS also elaborated on the most important principles of our Constitution documenting the constitution of a nation of one people:
"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."
Emphatically, "the Constitution begins with the principle that sovereignty rests with the people." Alden v. Maine, 527 U.S. 706, 759 (1999). It was "the people" who did "ordain and establish the Constitution." Id. Clearly, "the animating principle of our Constitution" was "that the people themselves are the originating source of all the powers of government." Ariz. State Legis. v. Ariz. Indep. Redistricting Comm'n, 576 U.S. 787, 813 (2015). It is crucial to see "the Constitution’s conception of the people as the font of governmental power." Id. at 81.
Far more important, however, is understanding what Madison said was demanded by the "genius of republican liberty." "The genius of republican liberty seems to demand . . . not only that all power should be derived from the people, but that those intrusted with it should be kept in dependence on the people." Id. (quoting The Federalist No. 37). The most democratic aspect of our Constitution is documented in the First Amendment, but the most important aspect of the First Amendment is that it elaborates on the most important principle in our Constitution.
In our “republic” clearly “the people are sovereign” and “the ability” (the power) “of the citizenry to make informed choices” about public servants and public issues “is essential.” Citizens United v. FEC, 558 U.S. 310, 339 (2010). “Speech is an essential mechanism of democracy,” in part, because it is “the means to hold officials accountable to the people.” Id.
More importantly and more fundamentally, “[t]he right of citizens to inquire, to hear, to speak, and to use information” is essential “to enlightened self-government and a necessary means to protect it.” Id. Accord id. at 339-341, 344-350. “Premised on mistrust of [all] governmental power, the First Amendment stands against attempts to disfavor” the “subjects or viewpoints” of speech, especially regarding our public servants’ purported performance of their public service. Id. at 340. The First Amendment expresses and secures the sovereignty of the people.
The Preamble clearly and concisely states our first principle: "We the People of the United States" did "ordain and establish [our] Constitution" to "secure the Blessings of Liberty to ourselves." If I understood you correctly, you plan to tell us how our Constitution was designed to secure the blessings of liberty to the people.
Thank you for your thoughtful comment. You are right that the First Amendment’s prohibition on imposed belief is essential. But that principle doesn’t just bar blind faith in religion; it also stands against blind faith in the text itself. The very insight you emphasize — that we should not accept belief without scrutiny — extends to the Constitution. The fact that the Constitution says something does not make it immune from the very principle it articulates: belief must be earned, not imposed. The Enlightenment, which inspired the people who wrote those words, was about freeing individuals from imposed belief, whether from God, institutions, or even a document ratified by people far removed from us.
This brings me to the heart of the matter. You suggest that we should return to the Constitution, much like rediscovering old math. But why did they get it right when they wrote those words down? The Constitution itself demands that we ask that question. We cannot assume its wisdom without understanding why those principles matter, and we cannot stop there. The text of the First Amendment does not answer every question — it does not tell us how to apply free speech in a world of social media or modern challenges. The law, as Hart would say, has an open texture. The text runs out, and that is where we must apply the why — why these principles matter, why they still matter, and what that means today.
Without that understanding, the Constitution cannot guide us through the complexities of our time. The process of reaffirming these principles is precisely what makes the Constitution an action, as you rightly note. It is up to the people to continually engage, debate, and reaffirm why these principles matter. We must believe them anew, because if we do not, the mere fact that they are written will not save them.
Adam, the primary point of my original comment was that Americans need to rediscover the meaning of our Constitution as a description of our constitution as a nation. You invoked the First Amendment, so allow me to offer this example illustrating my point by addressing the First Amendment.
A U.S. District Court judge in Massachusetts recently declared some conduct by Trump and his supporters violated the First Amendment. Judge Young also made statements about the First Amendment that clearly were contrary to our Constitution.
It is true that "presidents have First Amendment rights." But it is not true that “there can be no constraint of any sort on the speech of the President of the United States, be that speech statesmanlike, magnanimous, and unifying or ‘foolish’ and ‘knavish.’" It is not true that, "[a]s President, he has the absolute and undoubted right to speak.” It is not true regarding even one of Trump's attacks on our First Amendment rights and freedoms that "this the First Amendment capaciously and emphatically allows." This is a crucial point that all judges (and all lawyers and law professors and even all Americans) need to re-learn and learn to really respect.
The starting point for a careful consideration of the powers of the president must begin with our Constitution's Preamble. It emphasized that "We the People" did "ordain and establish" our "Constitution" to "establish Justice" and "secure the Blessings of Liberty to ourselves." This is the heart and soul of our Constitution. It emphasizes a crucial, overarching principle that is only implicit in our Constitution's text and structure.
As Justice James Wilson emphasized in 1793 in Chisholm v. Georgia, “the term SOVEREIGN” is not used in our “Constitution.” But the Preamble is the “one place where it could have been used with propriety.” Only those “who ordained and established” our “Constitution” could “have announced themselves ‘SOVEREIGN’ people of the United States.” Justice Wilson highlighted how the first and foremost separation of powers in our Constitution is between the sovereign people and all public servants: “The PEOPLE of the United States” are “the first personages introduced.”
After introducing the sovereign (the people), the text and structure of Articles I, II and III further emphasized the people’s sovereignty. They introduced our directly-elected representatives (Congress), then, our indirectly-elected representative (the president), and, last, our unelected representatives (judges). The people “vested” only limited powers in public servants in and under “Congress” (U.S. Const. Art. I, §1), the “President” (Art. II, §1) and the “supreme Court” and “inferior Courts” that “Congress” was delegated the power to “ordain and establish” (Art. III, §1).
After seeing the foregoing, then we can see the true significance of the oaths of office of our public servants. Article VI emphasizes that the first, foremost and constant duty of every legislator and "all executive and judicial Officers" (state and federal) is "to support" our "Constitution" in everything they do. Article II more specifically emphasizes that the president's first, foremost and constant duty is to "preserve, protect and defend the Constitution of the United States" to "the best of" his "Ability."
The true significance of the oaths of office, the first sentences of Articles I, II and III (the people vesting limited powers in public servants) and the Preamble is clearly that no public servant--no legislator, no president, no judge, no DOJ attorney--was given any power to say whatever they want. Everything our public servants say must be to fulfill their oaths to support our Constitution.
The principle that guides the First Amendment is that the people are sovereign, and we did not vest in any of our public servants in the federal government any power to make or enforce any purported law that would abridge the freedom of thought, expression, communication and association secured by the First Amendment.
Adam, you're right. Much harm can come from thinking of our Constitution as some kind of sacred or religious text with a meaning fixed by God or some demi-gods. Many people treat the Declaration of Independence or the Constitution or the Bill of Rights as analogous to religious text or even a mere religious relic. They hang fancy versions of documents in frames on walls (or keep fancy versions in a shrine at the National Archives), and many never think more than superficially about the content.
That sort of blind faith or confidence is anti-constitutional. It leads to treating the principles and purpose of our Constitution (and our constitution as a nation of one people) as dead dogma (as John Stuart Mill put it in "On Liberty") or as irrelevant old math, supposedly too simple for our purportedly sophisticated society. The truth is that our Constitution is simultaneously very simple and extremely sophisticated.
Self-government requires much work by the people, themselves, not only by our public servants. As Justice Brennan writing for a unanimous SCOTUS in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) emphasized repeatedly, the First Amendment does not merely secure a "right" and a "privilege," it imposes a "duty" on the people. 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.” The people are sovereign, so the people need to think and act like sovereigns.
Self-government is hard work. It requires education and effort, not faith and not facile or complacent confidence. Self-government implies duty and work, not mere confidence or faith in our documentation or our representation. James Madison, for example, emphasized that principle repeatedly. The Federalist Papers repeatedly referred to various people as sentinels or guardians.
Madison also repeatedly emphasized the vital reason that the First Amendment secures the freedom of speech and the freedom of the press:
"A popular Government, without popular information, or the means of acquiring it, is but a prologue to a Farce or a Tragedy; or perhaps both. Knowlege will for ever govern ignorance: and a people who mean to be their own Governours, must arm themselves with the power which knowledge gives."
You're also right that "[t]he text of the First Amendment does not answer every question — it does not tell us how to [comprehend or govern 'the freedom of speech'] in a world of social media or modern challenges." One of the great and egregious failings of nearly all law schools and nearly all law professors is that they purport to teach our Constitution as if it were a mere collection of clauses. Law professors and judges too often fail to teach our Constitution consistent with the admonition of Chief Justice Marshall and SCOTUS that we must construe our Constitution by construing our constitution as one people of one nation. Such construction is not simple, but it also is not new.
It is the duty of the people to think constantly and carefully about our Constitution and work out the details of our own self-government. That's the point of our Constitution securing our right and power to discuss and vote regarding public persons and public measures.
As Justice Jackson writing for SCOTUS put it in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), it is "our duty" (not only of judges and lawyers, but all Americans) "to apply the Bill of Rights to assertions of official authority" to fulfill our "task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of [each new] century." "These principles grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men's affairs. We must transplant these rights to" the "soil" of our country in our century.
Transplanting "the majestic generalities" of our written Constitution to our country in our century requires (merely) starting with "the pattern of liberal government of the eighteenth century." It requires understanding every principle and purpose in the Preamble as securing the sovereignty of the sovereign people of today (as established by Amendments XIV, XV, XIX, XXIV and XXVI).
The majestic generalities of the First and Second Amendments, alone, never were meant to control how we may use (and how our public servants may govern our use) of words or swords. The majestic generalities of the Preamble are at least as relevant, as are the general principles implicit in structural restraints of federalism and separation of powers between departments of government.
Lovely comment on the constitution as an action, not a document. Thank you.
Thank you, Danielle! My understanding of Marshall's meaning was influenced by facts that I'm sure you already know, but I'll mention them for the benefit of others.
Marshall and Madison were Federalist delegates to the Virginia ratifying convention in 1788 (after Madison, Hamilton and Jay wrote The Federalist Papers). Virginia was one of the states that held off ratifying the original Constitution because of the absence of a bill of rights, and Madison was the primary force in Congress supporting the first 10 amendments, which are known as the Bill of Rights. Virginia became the final state required to ratify what became the first 10 amendments on Dec. 15, 1791.
The four to five years of proceedings and processes, (including multiple state and national elections and state conventions) involved in having the original Constitution written and ratified and then the first 10 amendments written and ratified (and the nature of the discussions during those years) underscored that many people understood that they were constituting a new nation out of 13 separate nations.
"We the People of the United States" constituted our own new nation. In striking contrast, the Articles of Confederation had emphasized that the Confederation had been created by mere state legislatures as a mere "league of friendship" in which "[e]ach state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."
As Marshall, Madison and John Adams highlighted, many people also understood that they were changing the nature of the national sovereign. In many states, the legislatures had written the constitutions, so the legislatures (like Parliament before them) were seen as sovereign. The U.S. followed the example first set by John Adams and Massachusetts. Ratification by the people made "the People of the United States" the supreme legislative power, i.e., the sovereign (consistent with Locke's thoughts about supreme power in his Second Treatise of Government paragraphs 132, 134, 136, 149, 150).
Less than 2 years after the Bill of Rights was ratified, Justice James Wilson and Chief Justice John Jay published opinions in Chisholm v. Georgia in 1793 to emphasize the sovereignty of the people.