Constitution Class Handout
May 6, 2014
Instructor: Douglas V. Gibbs
AllStar Collision, Inc.
522 Railroad Street
Sponsored by TLCC
Truth and Liberty Covenant Coalition
Corona · Norco · Eastvale
We the People of the United States
An Introduction to the Preamble
We the People of the United States
The Preamble of the United States 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.
Before the Preamble
The greatest of the influences on the Founding Fathers came from their own history in England. Before they fought the American Revolution, or began penning the American founding documents that proclaimed freedom, and independence, there was the Magna Carta.
The Great English Charter served as a historical precedent for asserting their rightful liberties from the British Crown, and the English Parliament. The framers of the Constitution drew inspiration and direction from the assembly of barons in 1215 that confronted a despotic and financially bankrupt King John, demanding that traditional rights be recognized, written down, confirmed with the royal seal, and sent to each of the counties to be read to all freemen. The Magna Carta served as an incredible achievement in 1215, and later provided inspiration for the American colonists forging a new nation.
Originally known as the "Articles of the barons," the formal version of the Magna Carta was issued on June 19, 1215. There was a minor change in the new document, when the final provision was drafted, replacing the term "any baron" with "any freeman" in stipulating to whom the provisions applied. The term would eventually include all English, and was a starting point for the Constitution’s Preamble, where “any freeman” was changed once again, but this time to the first three words of the American document: "We the People."
The English Colonists developed legal codes largely incorporating liberties guaranteed by Magna Carta and the 1689 English Bill of Rights. Though the education of the colonists varied, and few could afford legal training in England, they were familiar with English common law. During one parliamentary debate in the late 18th century, Edmund Burke observed, "In no country, perhaps in the world, is law so general a study."
James Madison and Thomas Jefferson drew inspiration from the doctrines of the British constitution, or in what were called English liberties.
America was a place where freemen adopted the best of the English system, while adapting it to new circumstances. The English Colonies was a place where a person could rise by merit, not birth; a place where men could voice their opinions and actively share in self-government. When the British Crown challenged these beliefs, turning to the colonies as a source of revenue to help alleviate the Crown’s substantial debts, and the growing expense of keeping troops on American soil, the colonists questioned the government in Britain, challenging the actions of parliament, arguing that without consent or direct representation in Parliament, the acts by the motherland were "taxation without representation," and an act of tyranny against the free peoples of the colonies.
The influence of the Magna Carta, and the demand for liberty, was with the colonists long before the War of Independence. As John Adams later wrote to Thomas Jefferson, "The Revolution was in the minds of the people, and this was effected, from 1760 to 1775, in the course of 15 years before a drop of blood was shed at Lexington."
The Americans would have their rights, and they would fight for them. The seal adopted by Massachusetts on the eve of the Revolution summed up the mood--a militiaman with sword in one hand and Magna Carta in the other.
When it was time to form a new government, embodied in the Constitution of the United States, where the authority emanated directly from the people, not from any governmental body, like the Magna Carta, the Constitution would be "the supreme Law of the Land." Under the Magna Carta, no man, not even the king, was considered to be above the law. That was the basis of constitutional thought in the United States.
"A government of laws, and not of men." - John Adams
The Declaration of Independence was approved by the Continental Congress on July 4, 1776, and outlined the reasons why the colonies were seeking independence from Great Britain.
The document declares that it is the right of the people to alter or abolish their government should it become destructive. It also states that these truths are self-evident, and that “all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”
A list of grievances are given, most of which are also iterated in the U.S. Constitution. The Declaration calls for fair representation, encourages immigration, a judiciary separated from the will of the monarchy, a stop to the presence of a standing army, a stop to the quartering of troops in the houses of the citizens, fair trials, due process, free trade, fair taxation, a protection of rights, and for the Crown to hear the redress of grievances by the colonists.
The call for independence then ends with an incredible statement. “And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”
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.
The Preamble is the introduction of the U.S. Constitution. The opening paragraph of the founding document holds no legal authority. The Preamble serves to establish who is granting the authority to create a new federal government, and the reasons for the decision. We The People of the United States are the grantors. In other words, the States, which were the embodiment of the people, were creating the federal government, and granting authorities to it so that it may function in a manner necessary to protect, promote, and preserve the union of States. The concept became known as federalism.
The Preamble is designed much like a form the doctor’s office may present to you to sign, giving the doctor the authority to perform necessary procedures on you in order to make you well. The form begins with your name (I, patient’s name), and then limits the doctor to only the procedures necessary to make you well. The doctor, if he or she believes that additional procedures may be necessary, must ask you before performing the additional procedures that are not granted by your original agreement with him/her.
Like the form in the doctor’s office, the Preamble begins with who is granting the authorities. “We the People of the United States” are the grantors of the authorities given to the new federal government.
Another example might be that the States forming the contract to establish the federal government, and grant to the new central government only limited authorities is much like a contract you may make with a contractor to add a room to your house. In the contract, it specifically establishes that the construction companies authorities under the contract is to build your room addition, using only the materials and labor necessary and proper to carry out that task. If you got home, and found the workers tending to your garden, and mowing your lawn, you would be angry because lawn maintenance was not among the authorities granted to the contractor hired to provide you a service.
The first three words, “We the People,” often leads people to believe that we are a democracy. We must take the first part of the Preamble into context. It is not just “We the People,” but “We the People of the United States.” In other words, the people of these States that are united have come together to establish this contract for the following reasons.
As stated before, “We the People” comes from the British traditions of freedom. The Magna Carta and the English Bill of Rights refer to “Freemen.” Any freemen had rights, and no man, including the king, is above the law. That philosophy, introduced by the Saxons, was still in the blood of the Englishmen, and it was from “Any Freemen” that “We the People” was developed.
The words “United States” appear often in the U.S. Constitution. When those words appear in the text of the Constitution, they mean one of two things. Either, “United States” is a reference to the new federal government, or means “these states that are united.” In the case of the Preamble, both definitions are used. As we notice the first time united States appears in the Declaration of Independence, “united” is not capitalized. This was the common opinion of the people of that era. America was not a nationalistic country dominated by a powerful government, but a union of States that are sovereign, autonomous, and individual - like the people. We the People are the individual parts of their States, and the States are the individual parts of the union.
The first instance in which “United States” appears in the Constitution is in the Preamble. The beginning of the Preamble reads: “We the People of the United States.” The republic was to be one of the people of the States that are united. Early Americans saw the United States in the plural, rather than as a singular nationalistic entity. The people were citizens of their States first, but realized that the States must be united to survive as a union. So, the people in the States that united decided to do so for the purpose of survival. The individual States would only be safe if they all worked together as a united country. To ensure the union was protected they proposed forming a central government through a contract called the United States Constitution. This contract, or agreement to grant limited authorities to a federal government, was designed to ensure that the federal government remained limited so as to not infringe on the individual rights of the sovereign States, and the people who resided in those States.
The reasons for forming a new government were “In Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” In line with classical writing standards, these reasons were listed in order of importance.
The most important reason for the formation of the federal government, the main purpose for the creation of the U.S. Constitution, was “in Order to form a more perfect Union.” A union already existed under the Articles of Confederation. A confederation, however, is a weak form of government. A confederation is an association of sovereign member states that, by treaty or other agreement, have delegated some of their powers to a common institution in order to coordinate policies, without constituting a new state on top of the member states. The government under the Articles of Confederation, formed during the Revolutionary War, however, proved to be too weak to protect the union. Therefore, the founders realized that they needed to form a more perfect union, one with more authorities, while still remaining fairly limited in its power and scope.
As you read the Constitution, you will notice that all of the authorities granted to the federal government are limited to the protecting, preserving, or promoting of the union. The federal government was granted the authority to maintain an army and navy in order to protect the union from invasion, to collect taxes in order to pay for that military and the other necessary functions for preserving the union, to regulate commerce by acting as a mediator between the States so that the flow of commerce flows regularly in order to encourage a growing economy for the union, establish a uniform rule of naturalization for the purpose of ensuring the union grows through legal immigration, to establish post offices so that the many parts of the union can remain in contact with each other, and so on and so forth. The federal government was created for the sake of the union.
The second reason listed in The Preamble for the creation of the federal government through the ratification of the U.S. Constitution was to “establish Justice.” Note that the word “establish” is normally used in situations where whatever is being established never existed prior. The word “establish” being used in the Preamble, then, leads us to believe that there was no justice prior to the writing of the founding document. However, we are well aware that justice did already exist in each of the States, through State court systems. Therefore, we must conclude that the U.S. Constitution was not written to establish justice in the States, but to establish justice at the federal level where a judicial system had not previously existed. Once again, language has provided for us a clue to the original intent of the Founding Fathers. One must also remember that during the debates of the Constitutional Convention in 1787, there was actually a consideration to not establish a federal court system. The delegates realized that tyranny more easily flowed through an activist judiciary. The rule of law could be easily compromised by a judicial branch not willing to abide by the original intent of the U.S. Constitution. For this reason, the powers of the judicial branch are greatly limited by the Constitution. We will go into more detail regarding those limitations when we get to Article III, and the 11th Amendment.
The first two reasons for the writing of the U.S. Constitution, according to the Preamble, was to form a more perfect union through the formation of a federal government, and to establish justice by creating a federal judicial system. It seems reasonable to assume, based on those primary goals, that the Constitution was not written to grant powers to the States (for the States already held all of the authorities for governance), but for the purpose of creating, yet limiting, a newly formed federal government, which was designed to serve the States by protecting them, and preserving the union they enjoyed. Before the States delegated some of their own powers to the federal government through the Constitution, all of those powers belonged to the States. The States, however, only granted “some” of their powers to the federal government, retaining most of the powers for themselves.
The U.S. Constitution, and all language within the document, is directed to the federal government, not to the States, unless specifically indicated otherwise. This is because the States essentially “hired” the federal government to protect and preserve the union. The contract that authorizes the federal government to exist and receive the authorities from the States is the U.S. Constitution. Therefore, it would be foolish to assume that the provisions of the Constitution are to be applied to the States as much as it is foolish to believe that an agreement between you and your doctor tells you what you can and can’t do regarding the procedures that are about to be performed on you. The agreement with the doctor is specifically designed to tell the doctor what procedures are allowed, just as the Constitution is specifically designed to tell the federal government what authorities it is allowed to have in order to protect, preserve, and promote the union. In that contract with the doctor there may be things in it that tell you what not to do so as to not undermine healing. The same is true in the Constitution. There is a section, Article I, Section 10, that tells the States what they are prohibited from doing. These prohibitions were necessary to ensure the States did not interfere with federal functions.
Since it is We The People of the United States that granted the federal government its powers, that means it is the people’s, through the States, responsibility to ensure the federal government acts in a constitutional manner. The Constitution is nothing more than ink and paper if we don’t fight for it.
The union, at the time of the writing of the Constitution, was fragile. The States, as colonies, or as states shortly after the American Revolution, never got along too well. They had their own cultures, religions, and laws. They fought over turf, commerce, and anything else you could think of. The States were much like siblings, fighting over everything under the sun; but when it came down to brass tacks, they were united when it came to defending each other.
The bickering between the States created an atmosphere that placed the cohesion of the union at risk. Therefore, when it came to creating a more perfect union, it was understood that one of the tasks of the federal government would have to be to ensure the States got along, too. Hence, the reason for the Preamble also indicating that the Constitution was written to “insure domestic Tranquility” and to “promote the general Welfare.”
What those two phrases meant was that because the States didn’t seem to get along too well, the federal government was expected to ensure there was tranquility between the States by acting as a mediator in disputes. Part of that task by the federal government was to also promote the general welfare of the republic. In other words, make sure the squabbles did not place, while also protecting the union, so that the welfare of the union would not be in jeopardy.
General Welfare, as it is presented in the Preamble, is capitalized in a curious manner. Welfare is capitalized, but the word “general” is not. Capitalization in the Constitution was often for the purpose of emphasis. With that tendency as our guide, it is reasonable to recognize that “Welfare” was the key component when these two words were presented in the Preamble. The Founding Fathers were seeking “Welfare” with a capital “W.” But what kind of Welfare were they looking for? Anything specific? No. The founders tasked the federal government with the duty of ensuring there was Welfare in the nation in a general manner. Or, you could say that they wanted the atmosphere in general to be one of “Welfare,” or “all’s well.”
In The Preamble, tucked between “insure domestic Tranquility” and “promote the general Welfare” is the phrase: “provide for the common defence.” In other words, almost as important as ensuring peaceful cooperation between the States, and slightly more important than promoting the general Welfare of the republic (and a part of ensuring the general Welfare), was the duty of the federal government to provide protection for the union through a military.
The need to provide for the common defense, one may note, was not listed first in The Preamble as one of the reasons for the creation of the federal government. The Founding Fathers, though they recognized the importance of the federal government to field a military force, as realized from the failure of the government to put down insurrection during Shays’ Rebellion under the Articles of Confederation, did not list the need to provide for the common defense at the beginning of the Preamble because a country that places too much importance on a military is doomed to become a police state. Defending this nation was not placed at the bottom of the list either because a nation that refuses to defend itself ultimately becomes a conquered entity that is subject to the authority of a foreign government. Despite the fear of a powerful military that could be used against the people and the States, providing for the common defense was still indeed one of the primary reasons for creating the federal government in the first place. That is why “provide for the common defence” is listed in the Preamble within the depths of the body of the paragraph.
The final reason for the writing of the Constitution was to “secure the Blessings of Liberty to ourselves and our Posterity.” The presence of the word “Blessings” reminds us that the Founding Father’s grateful spirit recognized that the result of the American Revolution, and the inspiration for this new government, could have only come from the favors of Divine Providence. Liberty, remember, is one of the unalienable rights listed in the Declaration of Independence that has been given to us by The Creator. In fact, that is one of the foundational beliefs of the original intent behind the creation of the federal government. Our rights are granted to us by God, not by government, for if our rights are granted to us by government, government could then take those rights away. This is based on a concept called Natural Law penned by John Locke during the 1600s. In the Declaration of Independence, it is referred to as, “Laws of Nature by Nature’s God.”
Sometimes, when I ask somebody what they believe to be the main reason for the writing of the U.S. Constitution, more often than not the response is, “To protect our rights, liberty, and property.”
That is actually an incorrect answer, as we have just discovered by studying The Preamble. Though protecting our rights, liberty, and property are among the reasons that the Constitution was written in the manner that it was, those are not the reasons for the creation of the founding document, and thus the reasons for the creation of the federal government.
As indicated in the Preamble, the primary reason for the Constitution is The Union, but the very formation of that union was not for the sake of the union, but to ultimately protect the sovereignty of each component of that union - The States. However, by creating a federal government, the Founding Fathers realized that they were opening up the potential for the governmental system to become a tyranny. Therefore, in order to protect the rights, liberty and property of the people (more specifically to “secure the Blessings of Liberty to ourselves and our Posterity”), the federal government needed to be limited in its authorities by the rule of law. The law of the land in which the governmental system is limited to, in the case of the United States, is the U.S. Constitution.
Confederation: A confederation is an association of sovereign member states that, by treaty or other agreement, have delegated some of their powers to a common institution in order to coordinate policies, without constituting a new state on top of the member states.
English Bill of Rights: The Declaration of Rights in 1689, following the relatively bloodless “Glorious Revolution” of 1688, reasserting Protestant influence in England, and establishing a written declaration based on the belief that rights are granted by God, limiting the power of the king, and guaranteeing individual rights in writing. At its core, the system of government based on the English Bill of Rights, and the Magna Carta, holds as its philosophy that government is to serve the people, not the other way around.
Federalism: Government in which the central government’s power and authority is limited by local government units, and where each unit is delegated a sphere of power and authority only it can exercise, while other powers must be shared. The term federalism comes from the Latin root foedus, which means "formal agreement or covenant." It includes the interrelationships between the states as well as between the states and the federal government.
Magna Carta: The “Great Charter” of English Liberties, forced from King John by the English barons at Runnymede, June 15, 1215. A fundamental constitution, or law guaranteeing rights.
Unalienable Rights: Incapable of being alienated, that is, sold and transferred. You can not surrender, sell or transfer unalienable rights, they are a gift from the Creator to the individual and can not under any circumstances be surrendered or taken. All individual's have unalienable rights.
Questions for Discussion:
1. How might the United States be different if the Magna Carta, or the Glorious Revolution, had never taken place?
2. Many of us were taught to memorize the Preamble in school, others remember it because of the School House Rock cartoon on Saturday mornings, but growing up how many times were we taught what it means?
3. Federalism, or the belief in a central government limited by the authorities granted to it in the Constitution, began as a wonderful idea. The members of the “Federalist Party,” however, were not satisfied, and desired the federal government to have more authorities than it was granted. Why do you think this is true?
4. Why did the Founding Fathers only desire the federal government to be granted powers that regarded the union, and not authorities in regards to other issues?
4. The judicial branch was supposed to be the weakest of the three branches. Why do you think the Founding Fathers wanted to limit the judiciary to such an extent?
5. One of the founding principles is that our unalienable rights are given to us by the Creator. Is it a coincidence that historically most authoritarian governments that sought to take away the rights of the individual did it either by taking control of the church, or by rejecting religion/the existence of God?
6. At what point does a government take “provide for the common defense” too far?
James L. Roark, Michael P. Johnson, Patricia Cline Cohen, Sarah Stage, Alan Lawson, and Susan M. Hartmann, The American Promise: A History of the United States; Boston: Bedford/St. Martin’s (2009).
James Madison, Federalist No. 41: General View of the Powers Conferred by The Constitution, http://www.constitution.org/fed/federa41.htm
John L. Hancock, Liberty Inherited: The Untold Story of America’s Exceptionalism; Charleston: Liberty Lane Media (2011)
Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
Larry Schweikart and Michael Allen, A Patriot’s History of the United States; New York: Sentinel (2004).
Madison’s Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
Philip B. Kurland and Ralph Lerner, The Founder’s Constitution - Volume Two - Preamble through Article I, Section 8, Clause 4; Indianapolis: Liberty Fund (1987).
Copyright 2014 Douglas V. Gibbs