The "Preamble"

• "We the people" - clear statement that the people - not the king, not the legislature, not the courts - are the true rulers in American government. This set the principle known as popular sovereignty.
  • Who were "we the people" when the constitution was signed - a small minority of Americans (white, protestant men who owned property and could pay taxes on it.)
  • When does this definition broaden? With constitutional amendments
    • beginning with the 14th and 15th Amendments passed after the Civil War that gave African Americans citizenship and African American men the right to vote,
    • continuing in 1919 with the 19th Amendment that gave women the vote,
    • the 1924 act giving American Indians citizenship, and
    • ending with the 26th Amendment passed in 1971 extending the vote to 18-year-olds.
• "of the United States" - the original draft of the Preamble listed all 13 states because most of the delegates still saw the U.S. as evolving from a loose confederation of states into a strong national union. It was condensed at the last minute by Gouverneur Morris.
• 'in Order to form a more perfect Union" - the first attempt to form a union under the Articles of Confederation had not been successful. This second attempt "for the sole and express purpose of revising the Articles of Confederation" - was to form a more perfect government binding the 13 colonies together.
• "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" - these are the goals the Constitution was designed to meet. However, this is the only place in the Constitution that discusses securing 'Liberty." So, what did the Founders mean when they talked about Liberty?
  • Liberty involved the freedom to act without restraint of the government and without obstructing the equal freedom of others.
  • The Founders saw liberty as one of the natural rights of man, believing that people trade some of their natural liberty for the protections that come with uniting into a society and forming a government. Thus, there is a delicate balance - citizens have natural liberties that the government cannot restrain, but sometimes they must also give up some of those liberties for the good of the public.
  • Three of our founding documents explain the purpose of government as protecting citizens' liberty and individual rights:
    • The Declaration of Independence says that one purpose of government was to "secure" inalienable rights, including "life, liberty, and the pursuit of happiness."
    • The Preamble to the Constitution explains that it was written "to secure the blessings of liberty."
    • Both the Fifth Amendment and the Fourteenth Amendment say that neither the federal government nor states can deprive citizens of "life, liberty or property" without due process.
• "do ordain and establish this Constitution for the United States of America" - This further clarifies that the people are establishing the government - not the states.
  • A huge controversy arose over this wording. Patrick Henry argued that the convention had exceeded its power by abandoning the Articles. When asked during the Virginia ratifying convention, Henry responded, "Who authorized them to speak the language of, We, the People, instead of We, the States…The people gave them no power to use their name."
  • But in Article VII, the Constitution was ratified by the people through state conventions, not by the state legislatures. So is it "We the People" or "We the States?"
    • The controversy seemed to be solved by the U.S. Supreme Court in 1819 when Chief Justice John Marshall wrote for a unanimous court in McCullough v. Maryland (17 U.S. 316, 403-04) "The government proceeds directly from the people: is 'ordained and established' in the name of the people. Its powers are granted by them and are to be exercised directly on them and for their benefit."
    • However, Justice Clarence Thomas's dissenting opinion in 1995 in U.S. Term Limits v. Thornton (514 U.S. 779,846) disagreed with Marshall's analysis. According to Thomas, "the source of the Constitution's authority is the consent of the people of each individual state, not the consent of the undifferentiated people of the nation as a whole." In his interpretation, the states retain significant power over the national government. Remember - this was the dissenting opinion and therefore, has no legal status.