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The title of this talk is in the beginning and it's
appropriate I think to talk about the preamble of the
Constitution to start off a series like this but it's also I
think neat to have a talk like this, not because it's going to
be fabulous but because it is about beginnings and it is about
how we begin to understand the Constitution,.
So this talk, this mini lecture is called in the beginning.
During a smallpox outbreak in 1902 in Massachusetts, the state
of Massachusetts along with 11 other states, passed a mandatory
vaccination law that required all adults and children to be
vaccinated against smallpox but claiming that he had become ill
as a child and fearful that his 3 small children would fall ill
again to the smallpox vaccination, a man named Henning
Jacobson who was a Swedish immigrant and minister in
Boston, refused the vaccination and also refused to pay the 5
dollar fine that went along with refusing it.
He was arrested, charged, refused to pay, eventually his
case would come before the Supreme court in a case called
Jacobson vs.
Massachusetts, that case wouldn't come for 3 more years.
The arguments that he developed though are what I want to talk
about this lecture for why he did not think this state law
this mandatory vaccination law.
What's Constitutional?
His first argument, well his general argument was that this
in some way violated his liberty the Constitution guaranteed to
every individual.
And the first place that he went to find the word liberty in the
Constitution and therefore use it Constitutionally was in the
14th amendment of the Constitution.
The 14th amendment to the Constitution was passed after
the Civil war and in the wake of reconstruction; it was designed
to reassert national power over states.
And the, but the way it did it though was to limit the action
of states and it did 3 things, it did many things but we want
to talk about 3 things in particular.
The first thing it did was it said that states could not
violate your privileges and immunities as American citizens.
The second thing it said it couldn't do was what Mr.
Jacobson was concerned about.
It said that without due process of law we cannot take away your
liberty.
It also said that states cannot deny you the equal protection of
the law.
So here was the first place that Mr. Jacobson found a
Constitutional avenue with which to argue that his liberty was
violated with this Massachusetts law.
But he went a step further, he said but wait a second, the
preamble to the Constitution, the first set of rules in words
and sentences that we read that introduce the document before us
that he read and that we're going to talk about throughout
these lectures, contains the word liberty as well and it
does.
In fact the document or the, or the preamble is as follows.
We the people of the United States in order to form a more
perfect union establish Justice, ensure domestic tranquility,
provide for the common defense, promote the general welfare and
secure the blessings of liberty to ourselves and our posterity
to ordain and establish this Constitution for the United
States of America.
But 3 years later when the Supreme Court heard this case in
Jacobson vs.
Massachusetts they not only rejected Mr. Jacobsons argument
that the act was unconstitutional but refused
even to consider that the preamble to the Constitution
contained any source of rights.
Writing for the court, Justice Harlan argued that quote and
again this is what Justice Harlan is saying for the
majority of the court saying that the preamble is not even an
acceptable argument that we will consider on behalf of Mr.
Jacobson.
Justice Harlan said quote although the preamble indicates
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 on any of its departments.
Such powers Justice Harlan went on to argue embrace only those
expressly granted in the body of the Constitution and as such
maybe implied from those granted.
He went on to say one of the declared objects of the
Constitution was to secure the blessings of liberty to all
under the sovereign jurisdiction of the United States, no power
can be exerted to that and by the United States unless apart
from the preamble, it'd be found in some express delegation of
power or in some power to be properly implied there from.
You only write secure or powers granted to the government then
with those explicably laid out in the main body of the
Constitution itself.
Justice Harlan effectively rendered the preamble as nothing
more than a pretext or an introduction to what was to come
in the written Constitution and that followed immediately after
the preamble.
Interestingly this was the only time in Supreme court history
that the court considers the preamble to the Constitution and
it's not that people haven't made arguments before but this
is the only case where the court answers the question of whether
it's as binding on the government as the rest of the
text.
But despite the courts willing, unwillingness I should say, to
consider the preambles meaning, there are three important
concepts I want to talk about that are central to a proper
understanding of American Constitutionalism that I would
argue that any informed citizen should know.
Again, I want to read the preamble so we're absolutely
clear about the words and the clauses.
We the people of the United States in order to form a more
perfect union establish Justice, ensure domestic tranquility,
provide for the common defense, promote the general welfare and
secure the blessings of liberty to ourselves and our posterity
to ordain and establish this Constitution for the United
States of America.
Let's consider the very first clause or even the first three
words.
We the people.
The phrase we the people stands in stark contrast to the phrase
that some of the potential framers and those in the various
ratifying conventions would have preferred and that phrase was,
we the states, in fact in the Virginia ratifying convention,
in other words after the Constitution was written each
state called special conventions to decide whether or not they
would ratify the Constitution.
In the Virginia ratifying convention, Patrick Henry of
give me liberty or give me death theme from the Revolutionary war
stood in front of his colleagues and said how dare, how dare the
framers or those who wrote the Constitution used the words, we
the people instead of we the states, that Patrick Henry was
to go on to vote against the Constitution.
Many patriotic, patriotic Americans were very afraid of
the new Constitution and afraid of the concentration of power
and that's exactly what Patrick Henry was afraid of.
Let me read the clause very quickly again and we can see or
get an idea of what Patrick Henry was afraid of.
We the people of the United States are going to do
something, we're going to ensure domestic tranquility, establish
justice, provide or promote the general welfare and secure the
blessings of liberty to ourselves and to posterity.
But what does that mean?
Well that can mean many, many, many things.
It can be interpreted very liberally; it could be
interpreted very conservatively.
That's what Patrick Henry was afraid of, that kind of
capacious or large scale meaning that the preamble potentially
contained in those words.
Those words sound reassuring and very nice to us when we read
them but to those at the time of ratification they were
potentially very dangerous because they were so potentially
meaningful in so many different ways.
So aside form Patrick Henrys concerned about we the people
though, there's another way that I argue or that we should all
understand what the term we the people means and again I want to
put it in contrast to what Patrick Henry said the preamble
should say and that was we the states.
Well to say we the people instead of we the states signals
a huge shift in legitimacy.
What I mean by that is the same that the framers meant when they
used the term we the people instead of we the states.
The parties to this new contract that would come together and
ratify ordain and establish this Constitution were not to be the
individual states.
They were to be the people in a national sense not in a state
sense.
Individual states have their own Proventil nature, their own
parochialism, right?
Oklahomans think certain ways for the most part in different
ways than other states but Americans as a whole might think
in a very particular way that may or may not be different than
the way Oklahomans think.
Not saying one is more, more right or wrong than the other
but their two different ways we can imagine who we are.
The preamble says that the legitimacy that this
Constitution will get will come from the people not in their
state characters but in their national character.
So this document is superior to state governments but more
importantly though when we say that this document is
legitimized by the people, we the people, that also means or I
should say that does not mean that the national government
eats up the states or takes the states away or does not, or
makes them disappear.
The term we the people suggests not only that the people are
stronger than the states, this national people, but also that
this national people are stronger than the Constitution
itself.
That's where the legitimacy and power comes from, the people as
a whole, not the people in any state with those kinds of
concerns.
In the phrase, we due ordain and establishment is also, is the
third point that I'm going to make this morning.
Unlike other Constitutions particularly England, which had
and still does have an unwritten Constitution, American
Constitutionalism took a risk and did something new.
It wrote down in writing the rules, structure and power and
the rights that will form and limit our government and that's
what we can understand from due ordain and establish that we're
writing something down and at it's core, writing the
Constitution, writing down what the powers are, what the rights
are, what the structures of government are going to look
like, what government can and cannot do, writing that down
serves many purposes.
Not the least of which was this idea that the Constitution was
to be a higher law, due ordain and establish, the Constitution
was to be a higher law.
The preamble was suggestion that what is to come is something
different than an ordinary act of the people.
People act ordinarily in a governmental sense everyday.
We pass laws about taxes, we pass laws about registering our
dogs in the city of Norman, we act ordinarily everyday on
every, in every level or on every level of government but
this Constitution due ordain and establish make it a higher kind
of law.
If we pass a law that says you need to register your dogs in
Norman and that, and that fee will be 25 dollars, tomorrow if
we don't like that law we can change it by simple majority
vote to make it 15 dollars or choose not to register our dogs
at all but this, the preamble suggests that what is about to
come, what is written down and is about to come is something
different than that ordinary law, it's a higher law.
Not necessarily religious law but higher law, it cannot change
in the ordinary way that law changes.
It's a different kind of law; it's a higher law.
That's when we combine the idea of we the people with the clause
due ordain and establish, we not only understand again that this
is presupposing a national character as opposed to a state
character but we should also understand that it's
presupposing that the people themselves are higher than in
their written Constitutional law, are higher than and
superior to the national government and the state
government or any state government.
That's why the Supreme court in Jacobson vs.
Massachusetts might not understand the preamble is
legally binding right?
Jacobson lost.
While the supreme court might not understand the preamble as
legally binding in the same way that say the 1st amendment is
legally Constitutionally binding.
We can nevertheless understand the preamble as theoretically
binding and see it as a road map that frames and guides our
unique experiment in higher law making that seeks to ground its
legitimately in the popular sovereignty of the first three
words, we the people.
Thank you.
(Music) Freedom 101 is made possible by generous support
from *** Young and the University of Oklahoma Alumni
Association Freedom 101 is a program of the Institute for the
American Constitutional Heritage at the University of Oklahoma.
For more videos and podcasts visit freedom.ou.edu.
(Music)