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Video transcript

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 we're gonna talk about the preamble to the US Constitution that sounds very important 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 and before we even get into it what do you mean by the theory of popular sovereignty 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 is 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 legislators were sovereign and 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 and 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 we that's the reason that we established the Constitution there's lots done back there but maybe we should focus on those final words secure the blessings of liberty to selves on our posterity the framers believe that our rights come not from government but from God or nature that were born with them and when we moved 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 only 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 retain 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 of the state governments passed 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 legislators you 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 that 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 was the ratifying convention it's not the Constitutional Convention 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 5 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 why were the founding fathers so focused on this innate notion of popular sovereignty of elected officials being servant to the people and and making it so strongly embedded even here in the preamble 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 and 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 five 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-government sonner 'the then there have been small-scale democracies in Greek Greece and Rome in Athens Solon or in Sparta life surges 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 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 that was Wilson's distinct contribution to America as an entire theory of democratic self-government 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 that 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 fascinating and let's continue so we said we have We the People 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're trying to do and we already did secure the blessings of liberty to ourselves and our posterity what are the other things we want to talk about let's go back an order and the next 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 and that's what a perfect union is it's not a consolidated government because the state's retained powers under the 10th amendment all powers not bested in the United States as a whole or 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 I just want to double click on that a little bit because the words more and perfect nor normally go together you're they're 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 and so that's one of the reasons here many times 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 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 partial DAP 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 Constitutional Convention and then established justice well my goodness that's 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 you know let the heavens 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 versus Massachusetts that 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 allow judges to do justice regardless instead justice Harlan said in the Jacobsen 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 powers embrace only those expressly granted in the body of the Constitution or and there's the final bit and such as may be implied from those so granted so established justice is a broad declaration of purposes many parts of the Constitution helped 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're 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 those specific articulation of the rights that allow us to establish justice that are the ones that judges can enforce the goal the broad goal is the one set out in a preamble and then we have ensure domestic tranquility provide for the common defense promote the general welfare yeah so domestic tranquility is with some of of central concern to the framers they're concerned about armed mobs like those I mentioned in Massachusetts and Shay's rebellion where a debtor's and farmers in western Massachusetts are rebelling against their creditors so they want to allow the government enough power to put down these interactions but they don't want a government so strong that it will create standing armies that can be permanent threats to Liberty of the kind that King George's army was so that's why the Second 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 repeal 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 one for Congress and Article two 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 hesitated 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 ratifying the Constitution made clear that the general welfare clause was not a blank check it was 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 separate goal of passing laws that are in the general welfare again without threatening liberty and that Clause once again in bodies this tectonic balance between empowering government but also protecting retained rights 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 retain 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 US government and politics