The First Freedoms: The Constitutional Order Of Things

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

It is perverse that the simple mandates of the First Amendment would generate innumerable litigations and require innumerable adjudications by the Supreme Court. Yet, as the list of Supreme Court cases regarding First Amendment issues heard over the years demonstrates, there appears to be no end to the ways in which freedom can be distorted by those in power.

While there may be no end to such evil inventiveness, there is never even a shred of legitimacy to it. The mandates of the First Amendment are clear and unequivocal, and come with neither predicates nor preconditions.

A Binding Upon Congress

Viewed grammatically, the First Amendment is quite simple: it is merely a listing of things about which Congress is not permitted to craft legislation. Moreover, the use of the auxiliary verb "shall" makes the prohibition absolute, as a quick consultation of Merriam-Webster establishes:
3 a—used to express a command or exhortation
  b—used in laws, regulations, or directives to express what is mandatory
Within the text of the First Amendment, the mandate of Congress is a prohibition--"make no law." Given that the purpose for the Congress is to craft legislation, the prohibition leaves no room for uncertainty as to its meaning. The list of subjects that follows are subjects on which Congress has no authority to legislate.

Such a prohibition is a textbook example of what is known within the study of philosophy as a "negative right", meaning the holder of the right has a right not to have certain intrusions upon his liberty or his person.
A distinction between negative and positive rights is popular among some normative theorists, especially those with a bent toward libertarianism. The holder of a negative right is entitled to non-interference, while the holder of a positive right is entitled to provision of some good or service. A right against assault is a classic example of a negative right, while a right to welfare assistance is a prototypical positive right.
An understanding of negative rights is essential for a proper framing of the freedoms articulated within the First Amendment. The right of free speech, for example, is not merely a right to express oneself without limitation, but to be free from interference in that expression. The right to worship freely is likewise the right to be free from interference during that worship. The right to peaceably assemble is the right to be free from interference while so assembled.

Simply put, the First Amendment is a binding upon the Congress not to interfere with the exercise of the rights expressed within. 

This is the Constitutional order of things.

"Shall" Is An Unconditional Command

To properly apprehend this binding, we must consider what Merriam-Webster means when it defines "shall" as an auxiliary verb.
a verb (such as have, be, may, do, shall, will, can, or must) that is used with another verb to show the verb's tense, to form a question, etc.
Auxiliary verbs are also known as "modal verbs", and are used with other verbs to establish a quality of the described action.
a verb (such as can, could, shall, should, ought to, will, or would) that is usually used with another verb to express ideas such as possibility, necessity, and permission.
Within the First Amendment, "shall" can hardly be said to establish a possibility, and the negation "no law" precludes it providing any sort of permission, leaving necessity as the only applicable meaning. Even in modern usage, "shall" is used in the declarative to indicate certainty:
In formal English, the use of "shall" to describe future events often expresses inevitability or predestination.
The lack of conditionality in the verb shall makes the command issued to Congress absolute. Congress is not allowed to legislate at all in matters of religion, speech, the press, and peaceable assembly, and petitioning for the redress of grievances. There is no room for debate on this point. There are no exceptions carved out.

This is the Constitutional order of things.

It Applies To The States As Well

While the language of the First Amendment speaks solely to a binding upon the Congress, the consideration of the entirety of the Constitution establishes that this binding percolates down through the Congress to the several states.

Article 4, Section 2, Clause 1 of the Constitution ensures that US citizens do not forego any rights merely because they have traveled from one state to another:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Article 4, Section 3, Clause 1 establishes Congressional authority over the substance of state-level Constitutions by establishing Congressional authority over statehood.
New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
Article 4, Section 4 further clarifies the relationship between the US Constitution and state level constitutions:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
The United States unambiguously gets at least some approval in the structure of state-level constitutions.

Where there might be any conflict between state law and US law, including the Constitution, the US Constitution wins, every time. Article 6, Clause 1 makes that explicit.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. 
Any residual doubt about the extent to which the First Amendment must apply to the states is eliminated by Section 1 of the Fourteenth Amendment.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The structure and the language of the Constitution make it impossible for the First Amendment rights to be abridged, moderated, restricted, or withheld even at the state level. Even before the Fourteenth Amendment made the principle clear, the power of the Congress to admit states--and thus to ratify state constitutions--requires that First Amendment liberties extend to the states. Congress is not allowed to craft legislation admitting any state into the Union whose constitution permitted the curtailment of these liberties. Further, if a person resides in one state, and travels to another, even without the Fourteenth Amendment in operation the states are obligated to respect all the rights a citizen enjoys within their home state. Of course, the Fourteenth Amendment is in operation, and it explicitly prohibits the states from restricting fundamental civil liberties; the binding upon the Congress is made a binding upon the state legislatures as well.

This is the Constitutional order of things.

What Of The Supreme Court?

As the language of the Constitution is categorical regarding fundamental liberties, we must not ignore the logic of court rulings which manage to contort the categorical prohibitions of the First Amendment into conditional ones.

First and foremost, we should be mindful of what a ruling actually says regarding particular rights. In Schenck v. United States (249 U.S. 47), long considered a landmark ruling on the freedom of speech because of Justice Oliver Wendell Holmes' thesis about "falsely shouting fire in a crowded theater", a closer inspection of the opinion shows that Holmes was actually making the argument that the case before the Court did not involve the First Amendment.
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.
The binding upon the Congress not to interfere with a person's right to express himself freely does not bind the Congress against establishing fit consequences for actions otherwise within the purview of Congress to declare criminal. This logic flows directly from the "crowded theater" verbiage for which the ruling is famous.
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.
Freedom of speech is not the freedom to breach the public peace in Holmes' logic, nor is it the freedom to engage in any criminal conspiracy. In evaluating seeming restrictions on speech, according to Holmes, the courts must consider the degree to which speech is also action, and in particular action which a legislature may Constitutionally circumscribe.

We see this logic arising again in Brandenburg v Ohio (395 US 444), which established the "Brandenburg Test" for whether or not "speech" which advocated criminal acts could be circumscribed:
  1. The speech is “directed to inciting or producing imminent lawless action,  AND
  2. The speech is “likely to incite or produce such action.”
The linkage is clear: people must account for their actions, not their ideas. Brandenburg in fact elucidates this principle specifically.
...the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
While Brandenburg and even Schenck are guilty of the semantical sin of characterizing their logic as legitimate regulation of speech, the textual reality of these rulings is that they correctly differentiate between speech and action, and acknowledge the obvious point that while speech may be inviolate, actions may or may not be so. Rather than being defenses of restrictions upon civil liberties, these rulings are actually explications of why particular statutes do not restrict civil liberties.

We should also recognize the many Supreme Court rulings, such as the now superseded and discredited Whitney v. California (274 U.S. 357) that are flatly at odds with the language and meaning of the First Amendment, and thus are deficient in their logic and void in their conclusions.
This Court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present, and what degree of evil shall be deemed sufficiently substantial to justify resort to abridgement of free speech and assembly as the means of protection. To reach sound conclusions on these matters, we must bear in mind why a State is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence.
This reasoning is simply absurd, for the "standard" is already reached within the First Amendment: there is no justification whatsoever for any abridgement of fundamental rights. 

Moreover, such reasoning arrogates to the courts powers not granted to them by either the Constitution or the Congress. As Chief Justice John Marshall so famously noted in Marbury v. Madison (5 US 137), "It is emphatically the duty of the Judicial Department to say what the law is." It proceeds directly from this thesis that it is not the duty of the "Judicial Department" (courts) to say what the law should be--that duty is explicitly claimed by "We The People" in the Preamble to the Constitution.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
That particular duty is then delegated to the Legislature in Article 1.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Court rulings which fail to respect the clear delineation of authorities within the Constitution can be no more valid than acts of Congress which are similarly repugnant to the Constitution. As courts are only empowered to say what the law is, their rulings can only retain merit to the extent they in fact state what the law is. Where a ruling is incorrect in its statement of the law, it loses all legal force.

Supreme Court rulings which ignore or mis-state the Constitution are void and should themselves be ignored, even if the courts have yet to acknowledge their error. 

This is the Constitutional order of things.

The Constitution Declares That All Freedoms Matter

From the Preamble to the last sentence of the Twenty Seventh Amendment, the Constitution has but one overarching purpose--to preserve civil liberties for all Americans. As President Ronald Reagan stated so eloquently in his farewell address from the Oval Office, it is this subordination of government to the will of the people that sets the United States Constitution apart from all others.
Ours was the first revolution in the history of mankind that truly reversed the course of government, and with three little words: "We the People." "We the People" tell the government what to do; it doesn't tell us. "We the People" are the driver; the government is the car, and we decide where it should go, and by what route, and how fast. Almost all the world's constitutions are documents in which governments tell the people what their privileges are. Our Constitution is a document in which "We the People" tell the government what it is allowed to do. "We the People" are free.
There is but one Constitutional principle, and that is that all freedoms matter. Freedom is the first and most compelling moral imperative. There is none other that comes before.

Freedom admits of no compromise. The clear and categorical language of the First Amendment illuminates this principle beyond any and all doubt. The First Amendment freedoms are our First Freedoms, and there are no exceptions to be made in any of them.

This is the Constitutional order of things.

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