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- [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.
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