- [Sal] Hello, everyone, this is Sal here,
and I'm here with Jeffrey Rosen who's head
of the National Constitution Center.
What are we going to talk about today, Jeff?
- [Jeff] We're going to talk about
the Preamble to the US Constitution.
- [Sal] That sounds very important.
- [Jeff] It is very important.
The entire theory of popular sovereignty
is contained within these beautiful words,
so we've got a lot to talk about.
- [Sal] And before we even get into it,
what do you mean by the theory
of popular sovereignty?
- [Jeff] So the preamble begins with the famous words,
'We the people of the United States,'
and those signal that in the United States,
power belongs to 'we the people.'
It doesn't belong to our representatives in Congress.
It doesn't even belong to the state governments.
And that was a huge shift because
an original draft of the Preamble read,
'We the people of the States of New Hampshire,
Massachusetts, Rhode Island, Connecticut,' and so forth.
But, James Wilson, who was the main drafter
of the Preamble changed those words,
and at some point, the Preamble was changed
to the famous words we know now,
'We the people of the United States.'
That meant that when some Southern states
tried to secede from the Union,
before the Civil War, arguing that they
were sovereign as state governments,
President Lincoln resisted their
Constitutional ability to secede,
saying that since 'we the people
of the United States' had created
the Constitution, a majority of
'we the people of the United States'
would have to agree before any state
could leave it.
So, that's why it was a huge shift
in a conception of power that James Wilson
embodied in these words.
Before the Preamble, people believed
that legislatures were sovereign.
In Britain, the king in Parliament
was sovereign.
But, in America, thanks to Wilson
and his brilliant colleagues,
'we the people of the United States'
as a whole became sovereign and
that came to chart the entire course
of Constitutional history.
But then we have all of these purposes
for which the Constitution was formed:
to form a more perfect union, establish justice,
domestic tranquility, common defense,
general welfare, and secure the blessings
of liberty to ourselves and our posterity.
And then we're saying that's the reason
we established the Constitution.
There's lots to unpack there, but maybe
we should focus on those final words:
'secure the blessings of liberty
to ourselves and our posterity.'
The framers believed that our rights
come not from government, but from God or nature,
that we're born with them, and when we move
from the state of nature into civil society
to form a government, we surrender
temporary control over certain of those rights
in order to secure the safety and security
of the rights we've retained.
So that means that certain rights are unalienable,
to use Jefferson's language
in the Declaration.
We can't alienate them to government
when we form government, and the purpose
of alienating temporary control
over certain rights, like allowing the government
to punish murder, rather than, you know,
having private violence, is to secure
the blessings of liberty of the retained
natural rights, the first of which
the framers believed was complete
freedom of conscience, the right
to believe or not to believe according to
the dictates of our conscience.
So, we really see that that idea
of securing the blessings of liberty
is implicit in the idea that our rights
come from God and not government,
that government only has temporary control
of them, and reinforces, once again,
that we should never confuse the actions
of the government, laws that Congress
or the state governments pass,
with the will of the people.
'We the people' are sovereign.
The government is our servants.
We are the principles, and when there's a clash
between the will of the principles
represented by the Constitution
and the will of the servants
represented by the legislatures,
we prefer the principle to the agent.
That was what Hamilton said in Federalist 78
in justifying the Supreme Court's power
to strike down unconstitutional laws,
because the Constitution ratified in the name
of 'we the people' represents our views
more profoundly than those of ordinary laws.
That's why judges have to prefer
the Constitution to ordinary laws.
So, once again, we're seeing packed
into this Preamble so much natural law theory
and theory of popular sovereignty.
There's one other really important notion
contained in those words securing the blessings
of liberty in the name of 'we the people,'
and that's that the Constitution itself
didn't get to speak for 'we the people'
when it was proposed.
It wasn't until it was ratified
by special conventions that had been elected
for that purpose that it earned the right to speak
in the name of 'we the people' as a whole.
James Wilson was very keen on the idea
that it was the ratifying conventions
not the Constitutional Convention in Philadelphia
that gave the document its status
as supreme law and that idea that only laws
that go through a special procedure
specified in the Constitution in Article V,
which is the amendment procedure,
or by special Constitutional Conventions,
get to speak in the name of 'we the people,'
is absolutely core to the whole theory
of American Constitutionalism.
- [Sal] Why were the founding fathers so focused
on this notion of popular sovereignty,
of elected officials being servant
to the people, and making it so strongly
embedded even here in the Preamble?
- [Jeff] They just fought a revolution
based on the idea that the tyrannical King George
had infringed the natural rights of the people,
had refused to grant basic powers of representation,
and had broken the social contract,
and therefore, had lost the right
to govern people because he was governing
without consent.
One of the natural rights that people believed
were unalienable, retained by the people,
was the right to alter and abolish government
whenever it threatens the retained natural rights
of the people.
That's in the Declaration of Independence and,
in the Constitution, it can be found in Article V.
So, that right of revolution was part and parcel
of the idea that our basic natural rights
are retained.
And you have to remember how revolutionary it was
to be talking of popular sovereignty in 1787.
There were almost no democratic
self-governments on earth then.
There had been small-scale democracies in Greek,
Greece and Rome.
In Athens, Solon, or in Sparta, Lycurgus,
had been lawgivers, but no people
had ever, as the scholar Akhil Amar says,
voted on a written Constitution before,
deliberated it, and had it ratified in their name.
So, that's what was so radical about it,
that even the handful of minor of the sort of
partial democracies at the time, like the
limited suffrage in the British Parliament
or the Swiss Cantons hadn't had
a written Constitution that was ratified
by popular deliberation.
So, that's what made it radical
and that was Wilson's distinct contribution
to America's entire theory of democratic
self-governments, and that's why
if you had to talk about the essence
of Constitutionalism today, it's not populism.
It's not a quick direct vote.
It's not Brexit.
It's not a referendum.
It's long periods of deliberation,
so the text earns the right to speak
in the name of 'we the people,'
and it was the very reason for which
the revolutionaries fought the American Revolution.
- [Sal] Fascinating. Let's continue.
So, we say that we have 'We the People
of the United States,' it establishes
the popular sovereignty, and then it says,
'in order to,' and it lists a bunch
of reasons why we are, what we are trying to do.
We already did 'secure the blessings of liberty
to ourselves and our posterity.'
What are the other things we want to talk about?
- [Jeff] Let's go back in order and the first purpose
is 'in order to form a more perfect union.'
Well, that was the central goal of the
Constitutional Convention.
The previous union, represented by the Articles
of Confederation, had been imperfect.
That was sovereign states that were unable
to achieve common purposes.
They couldn't raise money to support forces in war.
They couldn't put down rebellions by debtors
in Massachusetts, known as Shay's Rebellion.
They needed a unanimous vote to achieve anything.
And essentially, the government didn't work.
So, the framers came to Philadelphia
in order to form a more perfect union
by establishing a Constitution strong enough
to achieve common purposes, but restrained enough
to protect, retain natural rights.
That's what a perfect union is.
It's not a consolidated government,
because states retained powers
under the 10th Amendment.
All powers not vested in the United States as a whole
are retained by the states or the people.
And, ultimately, it's 'we the people'
who retain the ultimate power,
because we're the ones who are sovereign.
But we can parcel that power out
either to state governments or
to the federal government in order
to ensure the protections of liberty.
So, that's what a more perfect union is
and that's why it was so appropriate
that Lincoln, in defending the Union
during the Civil War, resisted the authority
of the state governments to secede on the grounds
that 'we the people of the United States' needed
to consent before the Union could become
less perfect.
- [Sal] I just want to double-click on that a little bit
because the words, 'more' and 'perfect'
don't normally go together.
You're either perfect or you're not.
And so, part of the narrative that
I think I'm hearing is that we had
the Articles of Confederation, which were imperfect,
and we want to get closer to being perfect.
That's one of the reasons here.
Many reasons when I look at, 'to form
a more perfect union,' it also, at least to me,
kind of invokes this notion of continuously
trying to get better, even from the starting point.
- [Jeff] You're right to parse it closely.
We're trying continuously to get better,
but perfection doesn't mean amalgamation.
In other words, the most perfect union
wouldn't be a total union in which
all power is united in the federal government,
for example, and not parceled out
between the federal government and the states,
and also not separated out
so the various branches can check each other.
We want a union perfect enough to achieve
common purposes, but not so strong
as to threaten liberty, and it was that
delicate balance that was crucial
to Madison's vision and that led to most of the tensions
in the Constitution Convention.
- [Sal] And then, 'establish justice?'
- [Jeff] Well, my goodness. There's a lot
packed into that, and you might think
that that mandate to establish justice
gives judges the power to do justice,
regardless of, let the heaven's fall,
to use the expression.
But that's not what the Supreme Court has held.
In a really interesting case, the Supreme Court,
it was called Jacobson vs Massachusetts.
It came down in 1905.
The Supreme Court rejected the claim
that the Preamble to the Constitution
conferred independent powers that could be
enforced by judges.
In other words, it wasn't a general mandate
that allowed judges to do justice regardless.
Instead, Justice Harlan said in the Jacobson case,
although the Preamble indicates the general purposes
for which the people ordained and established
the Constitution, it has never been regarded
as the source of any substantive power
conferred on the government of the United States
or any of its departments.
Such power is embraced only those expressly
granted in the body of the Constitution,
or, and this is the final bit,
and such as may be implied from those so granted.
So, 'establish justice' is a broad
declaration of purposes.
Many parts of the Constitution help
the government to establish justice,
including the Bill of Rights, which requires
that people can't be deprived of liberty
without due process of law.
If they are gonna have a criminal trial,
they have all sorts of rights:
to confront witnesses, to be tried by jury,
and so forth.
But, it's the specific articulation of the rights
that allow us to establish justice
that are the ones the judges can enforce.
The broad goal is the one set out
in the Preamble.
- [Sal] And then we have 'insure domestic tranquility,
provide for the common defense,
promote the general welfare?'
- Yes, so domestic tranquility is what some
says of central concern to the framers.
They're concerned about armed mobs
like those I mentioned in Massachusetts
in Shay's rebellion where debtors and farmers
in western Massachusetts are rebelling
against their creditors.
So, they want to allow the government
enough power to put down these insurrections,
but they don't want a government
so strong that it will create standing armies
that can be permanent threats to liberty,
the kind that King George's army was.
So, that's why the 2nd Amendment
to the Constitution wants to provide
for well-regulated militias that can help
ensure domestic tranquility, but doesn't want
to empower a permanent standing army,
because it believes that, ultimately,
the people do have to retain the ability
to take up arms to defend their own liberty
if the government is threatening it as part
of their unalienable right to alter and abolish government.
So that's the domestic tranquility part.
And then, the common defense, of course,
is hugely important and Congress has the power
to declare war.
The President is Commander-in-Chief.
The President has the power to repel sudden attacks,
but otherwise it's supposed to be Congress
in theory at least, that authorizes
the deployment of troops abroad,
and the parts of Article I for Congress
and Article II for the President
that give those two branches war-making powers,
help to ensure that the Constitution
provides for the common defense.
The final clause, I hestitated to introduce
because it's so incredibly broad,
'promote the general welfare,' wow.
Well, I mean, that could be read
as a kind of blank check for the government
to do whatever it thinks is necessary
to promote the general welfare.
But, both the Supreme Court and also the framers,
in ratifying the Constitution,
made clear that the general welfare clause
was not a blank check.
It was that Congress and the President could only
exercise the powers that were either
explicitly granted by the Constitution
or could be fairly implied by them.
And yet, at the same time,
Chief Justice John Marshall and others
suggested that those powers have to be
broadly construed enough to achieve the purposes
of the Constitution, which include promoting
the general welfare.
So, you might say that promoting the general welfare
is a different expression of the goal
of promoting a more perfect union,
except you could say that there's a separate
goal of passing laws that are in the general welfare,
again, without threatening liberty,
and that clause, once again, embodies this
tectonic balance between empowering government,
but also protecting retained rights.
- [Sal] So, just to make sure that we got
all of the big points, we've learned that,
although the Preamble itself isn't a basis
for justice, like the body of the Constitution,
it establishes that 'we the people' are the source
of political power in the United States.
It explains that the Constitution would form
a more perfect union between the states
and the federal government than the weak
Articles of Confederation, while ensuring that
the people still retained their natural rights.
To learn more about the Preamble,
which I encourage you to do, visit the
National Constitution Center's Interactive Constitution
and Khan Academy's resources on
U.S. Government and Politics.