Randy Barnett: 'We the People' Doesn't Mean What You Think it Means

How a reading of the Declaration of Independence informs our understanding of the Constitution.

At first glance, the central question of Randy Barnett's book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People is so fundamental to American politics, it hardly seems worth asking. What did the founding fathers mean when they wrote, 'We the People'?

As it's usually taught in grade school, 'We the People' means governing through majority rule. The Constitution provides for popular sovereignty through democratically chosen representatives who themselves represent the majority will of the electorate.

But on closer examination, Barnett looks at The Declaration of Independence to arrive at a different interpretation of the first three words of the Constitution's preamble. Of the Declaration, Barnett tells Reason TV, 

[I]t's not so much that We the People govern. That's not what popular sovereignty means. Popular sovereignty means that it's the rights of the individual person that needs to be protected by government and then the people control or they limit government, but government is not the same as us. They're a small subset of us. They're the governors and the reason we have a Constitution is to provide the law that governs them.

Watch the video for a detailed discussion of the first principles behind the libertarian legal movement, of which Georgetown University law professor Barnett is a leading theorist.

Comments

[Akira]

One of the most dangerous beliefs in history is the belief that the government IS the people. Once you accept that premise, you're led into all kinds of pitfalls. If the government is the people, then it is immune from any criticism or opposition whatsoever. It becomes justified to do anything at all as long as you can make up some twisted rhetoric to make it sound like it's for the good of the people.

[IceTrey]

It's really not hard. There is one human right, to not have force initiated against you. This means all actions are to be allowed except those involving the initiatory use of force, threats of force or fraud. This means the proper function of government is to defend individual negative liberty with the retaliatory use of force. Done. Everything required for a civil society in three sentences.

[Jay Dubya]

While I agree with you about the primacy of the NAP, look at what 200 years of statists in black dresses have done to the US constitution. Even the few negative rights narrowly & explicitly spelled out have been stripped from us by bizaaro world interpretations of language. My point is: maybe constitutions arent all that great at protecting liberty from the state... I am not sure making a constitutional document more coherent would help, particularly over the long term

[Jane C]

We the people of the states of New-Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare and establish the following constitution for the government of ourselves and our posterity.

The first draft of the report of the Committee of Five of the Federal Convention. Printed, for the use of members, in an edition of sixty copies, on one side of seven leaves, only. ~Evans

Constitutional Convention, Philadelphia, 1787. Constitutional Convention Broadside Collection, Const Conv Bside no. 21. qr03 08-16-90. Library of Congress. loc.gov/item/90898130/

~ Its my understanding that the men at the Convention determined that limiting the terms to the specific states would cause issues in the future if additional states were added, and, more importantly, if any of the original states withdrew.

[Stephen54321]

Its my understanding that the men at the Convention determined that limiting the terms to the specific states would cause issues in the future if additional states were added, and, more importantly, if any of the original states withdrew.

Where did you obtain that view from? All the other opinions about preambles and their legal effect go more like this:

The [US Constitution] Preamble did not, in itself, have any substantive legal meaning. The understanding at the time was that preambles are merely declaratory and are not to be read as granting or limiting power?a view sustained by the Supreme Court in Jacobson v. Massachusetts (1905).

(From: http://www.heritage.org)

I would also note that\ the version they did wind up using ("We the People of the United States...") seems to implicitly presuppose that the United States ALREADY exists--which of course it did via the Articles of Confederation. Had those Articles never existed, however, then the original version of the preamble would have been more accurate.

[CatoTheChipper]

The Articles of Confederation began:

"To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting.
Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.
I. The Stile of this Confederacy shall be 'The United States of America'."

Thus, The United States of America was formed by the States, as represented by their delegates, rather than the People.

The Constitution pretends that the Constitution of the United States of America was ordained and established by the People.

This difference is not trivial. Patrick Henry, for one, was not amused.

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