A Commentary on the Preamble
to the Constitution of the United States
Mortimer J. Adler and William Gorman
[Reprinted from The Center Magazine of the
Center for the Study of Democratic Institutions,
January-February 1976. Part 1 of 2]
This article is taken from The American
Testament, a book by Mortimer J. Adler and William Gorman,
published in 1975 by Praeger. Other documents making up the
American testament and similarly treated are the Declaration of
Independence and Lincoln's Gettysburg Address.
The authors' premise is stated in the introduction to the book:
"To an astonishing and unprecedented degree, the United
States was born out of sustained argument and grave political
deliberation which committed this nation to a coherent political
doctrine. That doctrine is set forth with an inspired brevity in
a few momentous state papers - the first occurring at the moment
of this country's resolution for independence, the second at the
moment of the new government's formation, and the third at the
moment of the major crisis in our national history. Direct and
concentrated inquiry into the truth of that doctrine should be a
steady part of the American experience."
AT THE TIME OF THIS WRITING, MORTIMER ADLER WAS Director of the
Institute for Philosophical Research, Chairman of the Board of
Editors of Encyclopaedia Britannica, Editor of Great Books of
the Western World, and for many years Professor of the
Philosophy of Law at the University of Chicago.
WILLIAM GORMAN WAS a Senior Fellow of the Institute for
Philosophical Research, an Associate of the Center for the Study
of Democratic Institutions, and General Editor of The Great
Ideas: A Syntopicon. He taught at the University of Chicago;
St. John's College, Annapolis; and Wesleyan University in
Middletown, Connecticut.
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We, the people of the United States, in order to form
a more perfect union, establish justice, insure domestic
tranquillity, provide for the common defense, 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.
This beautifully constructed, lucid sentence poses direct questions
to any commentator - questions about the nature of the action taken,
its agent, its purpose, its beneficiary.
The address to such questions, however, must first take account of
the fact that the sentence issued from a convention and must take
account of the ideas that led to the invention of such an instrument.
Gordon S. Wood, a historian, has firmly shown that "the
Americans' refined conception of a constitution did not at once spring
into being everywhere with independence ... and so, too, the
instrument of the constitutional convention was only awkwardly and
unevenly developed." The importance of the distinctively American
practical invention of a constitutional convention is stressed by
historians who are concerned with the emergence of American
constitutionalism as a novel political departure. (See Andrew C.
Mc-Laughlin, The Foundations of American Constitutionalism,
Chapter 4; R. R. Palmer, The Age of the Democratic Revolution,
Chapter VIII; and Gordon S. Wood, The Creation of the American
Republic, 1776-1787, Chapters VII and VIII.)
A brief indication of their discoveries is pertinent here in order to
explain the precise meaning of the phrase "We, the people"
(the grammatical subject of the Preamble's elegant single sentence) as
well as the significance of "do ordain and establish" (the
grammatical predicate describing the action taken).
We, the people do ordain and establish
Even before the Declaration of Independence, revolutionary leaders in
some of the colonies had spoken of the need to rethink their
governments. The Declaration of Independence, insistently and with
great care, spoke not just of the right to overthrow bad government,
but of the people's right to "institute new government." In
the late spring of 1775, Massachusetts petitioned the Continental
Congress for "explicit advice respecting the taking up and
exercising the powers of civil government." In his autobiography
John Adams recalled his part in the response of Congress to that
petition:
"We must realize the theories of the wisest writers
and invite the people to erect the whole building with their own
hands upon the broadest foundation. That this could be done only by
conventions of the representatives chosen by the people in the
several colonies, in the most exact proportions. That it was my
opinion that Congress ought now to recommend to the people of every
colony to call such conventions immediately and set up governments
of their own, under their own authority, for the people were the
source of all authority and original of all power. These were new,
strange, and terrible doctrines to the greatest part of the members,
but not a very small number heard them with apparent pleasure."
Later in the fall of 1775, when New Hampshire similarly petitioned
the Congress, John Adams continued the argument:
"Although the opposition was still inveterate, many
members of Congress began to hear me with more patience, and some
began to ask civil questions: How can the people institute
governments?
"My answer was: by conventions of representatives, freely,
fairly, and proportionally chosen.
"When the convention has fabricated a government, or a
constitution rather, how do we know the people will submit to it?
"If there is any doubt of that, the convention may send out
their project of a constitution to the people in their several
towns, counties, or districts, and the people may make the
acceptance of it their own act."
As early, then, as 1775, John Adams appeared to have a firm hold on
the idea of the people as the constituent power.
However, the idea was far from clearly grasped in the colonies at
large. Despite the confusions and anxieties attending the initiation
of the War of Independence, the colonies did proceed, in one or
another way, to turn themselves into independent commonwealths or
states. Eight colonies did so in 1776. Two more followed in 1777.
Rhode Island and Connecticut, for reasons of no importance here,
stayed with their old charters.
Massachusetts was very late. It did not give itself a new
constitution until 1780. The reasons for the delay are of decisive
importance in the whole story.
Andrew C. McLaughlin speaks of "the establishment of state
governments" as the "dramatic and conclusive proclamation of
independence." Yet he acknowledges that the method by which they
were instituted, except in the case of Massachusetts, was murky to a
degree. The work of instituting new governments was done by existing
governments - the assemblies or provincial congresses that were de
facto in power. Their documents came from the exercise of that
de facto power. To be sure, they were "thought of,"
McLaughlin says, "as more or less coming from the people and
expressing popular will." But they had not issued from a body of
men expressly assigned by the people to institute 'new governments.
In' most cases, their work took effect without any sort of submission
to a popular vote. And, in one way or another, the de facto
governmental bodies stayed on as the new governments.
The establishment of new state governments in such troubled times was
impressive and important. But the procedures were not sound if they
are measured by "the idea of the people as the constituent power."
That idea, which R. R. Palmer speaks of as "distinctively
American," was a practical idea calling for a method of action.
The distinctiveness lay in its institutionalizing of old doctrines -
in its bringing to effective, symbolic, and historical actuality
doctrines about the sovereignty of the people, about the people as the
original fount of all power in governments, about authority as
transmitted from the consent of the governed, about a fundamental law
antecedent to government because constitutive of government, a law
different in kind and in force from the statutes that would issue from
the constituted government.
Palmer concedes that, though it was surely "adumbrated" in
Jefferson's phrase in the Declaration about "instituting new
governments," the idea "developed unclearly, gradually, and
sporadically." He concedes that in none of the ten states that
gave themselves new constitutions in 1776 and 1777 "did a true
constituent convention meet, and, as it were, calmly and rationally
devise government out of a state of nature." In those states, the
procedures did not clearly distinguish existing from constituent
bodies or statutory law from fundamental law, and failed for the most
part to engage "the people" in the process of instituting
new governments.
In Massachusetts, the story was different. It is worth a brief
retelling here, if it is true that the idea of the people as a
constituent power is an important part of the American Testament and
true that the idea found historical maturity in Massachusetts.
Palmer tells the first part of the story:
"The revolutionary leadership in Massachusetts,
including both the Adamses, was quite satisfied to be rid of the
British, and otherwise to keep the Bay State as it had always been.
They therefore 'resumed' the charter of 1691. ... [However], demands
were heard for a new constitution. It was said that the charter of
1691 was of no force, since the royal power that had issued it was
no longer valid. It was said that no one could be governed without
his consent, and that no living person had really consented to this
charter. Some Berkshire towns even hinted that they did not belong
to Massachusetts at all until they shared in constituting the new
commonwealth. . . .The law to bind all must be assented to by all,'
declared the farmers of Sutton[1]. ...It began to seem that a
constitution was necessary not only to secure liberty but to
establish authority, not only to protect the individual but to found
the state."
In the fall of 1776, the Massachusetts provincial congress resolved
to consider making a new constitution. It issued an appeal to the
towns for a grant of authority to the General Court for that work. In
a town hall meeting, the people of Concord responded as follows:
"A meeting of the inhabitants (free men and
twenty-one years of age and older) of the town of Concord met by
adjournment on October 21, 1776, to take into consideration a
resolve of the honorable House of Representatives of this state made
on September 17. The town resolved as follows:
"Resolve 1. This state being presently destitute of a
properly established form of government, it is absolutely
necessary that a government should be immediately formed and
established.
[Italics here and
hereafter are the authors'.]
"Resolve 2. The supreme legislature, either in its
proper capacity or in a joint committee, is by no means a body
proper to form and establish a constitution or form a government,
for the following reasons:
"First, because we conceive that a constitution in its proper
idea intends a system of principles established to secure the
subject in the possession and enjoyment of their rights and
privileges against any encroachments of the governing part.
"Second, because the same body that forms a constitution has a
power to alter it.
"Third, because a constitution alterable by the supreme
legislature is no security at all to the subject against any
encroachment of the governing part on any or on all of their rights
and privileges.
"Resolve 3. It appears highly necessary and expedient
to this town that a convention or congress be immediately chosen to
form and establish a constitution by the inhabitants of the
respective towns in this state.
"Resolve 4. When the convention or congress has formed
a constitution, they are to adjourn for a short time and publish
their proposed constitution for the inspection of the inhabitants of
this state.
"Resolve 5. The honorable House of Assembly of this
state desires to recommend to the inhabitants of the state to
proceed to choose a convention or congress for the purpose abovesaid
as soon as possible."
This remarkable set of Concord "resolves" firmly and
maturely holds the idea of the people as constituent power. However,
the suggestions of the Concord meeting did not at first prevail. The
House, through the General Court, enacted a constitution in 1778. It
was rejected by a five-to-one majority of the towns - for various
reasons, including its lack of a bill of rights; its failure to
eliminate slavery; its attaching a property qualification to the
voting right; and also because it had not been drafted by a
body separate from the government.
By June of 1779, however, Concord did prevail. The General Court
issued an order for a special election in which all towns were to
choose delegates to a state convention, having as "its sole
purpose the forming of a new constitution." John Adams, who had
been the counselor to the whole nation on the instituting of new state
governments, was at the Massachusetts state convention. However, this
time he sat, not as a major leader in the de facto government
of the provincial congress, but as a delegate sent to the special
state constitutional convention by the electorate of Braintree,
Massachusetts.
Needless to say, Adams was a member of the drafting committee. His
draft met with only one important emendation in the convention. The
constitution that came from the convention was ratified by the towns,
and it became the Constitution of the Commonwealth of Massachusetts in
1780. Its shape and several provisions were of major importance to the
deliberations of the 1787 convention in Philadelphia.
The importance of the emendation that the convention made in Adams'
draft is stressed by Palmer:
"In the enacting clause [of his draft] of the
preamble, Adams wrote: 'We, therefore, the delegates of the people
of Massachusetts ... agree upon the following . . . Constitution of
the Commonwealth of Massachusetts.' The convention made a
significant emendation: 'We, therefore, the people of Massachusetts
.. . agree upon, ordain and establish.. . .' The formula, We,
the people ordain and establish, expressing the developed theory
of the people as constituent power, was used for the first time in
the Massachusetts constitution of 1780, whence it passed into the
Preamble of the United States Constitution of 1787 and the new
Pennsylvania constitution of 1790, after which it became common in
the constitutions of the new states, and in new
constitutions of the old states. Adams did not invent the formula.
He was content with the matter-of-fact or purely empirical statement
that the 'delegates' had 'agreed.' It was the popularly elected
convention that rose to more abstract heights. Providing in advance
for popular ratification, it imputed the creation of government to
the people."
The emendation, so construed, supports the contention of Andrew C.
McLaughlin that "by their words and acts the constitution-makers
of Massachusetts made actual the theory of the origin of
government in the will of the people."
During the period when the Articles of Confederation were in force,
clarity about the people's constituent power became more widespread.
In South Carolina, there was increasing dissatisfaction with the "new
constitution" that had been adopted in 1778 by the sitting
Revolutionary Congress, even without a new election. In the South
Carolina discussion, there appeared in 1784 a pamphlet, Conciliatory
Hints, written by Thomas Tudor Tucker. Gordon S. Wood calls
Tucker's pamphlet "one of the most prescient and remarkable
pamphlets written in the Confederation period." Wood presents the
pertinent passages:
"'All authority [Tucker writes] is derived from the
people at large, held only during their pleasure, and exercised only
for their benefit. . . . No man has any privilege above his fellow
citizens, except whilst in office, and even then, none but what they
have thought proper to vest in him, solely for the purpose of
supporting him in the effectual performance of his duty to the
public.' Therefore, 'the privileges of legislative branches ought to
be defined by the constitution and should be fixed as low as is
consistent with the public welfare.' South Carolina needed a new
constitution. The old one '(if such it may called)' should be
amended by convening the people in accord with 'the true principles
of equal freedom that were being accepted by almost all Americans
the seventeen-eighties, thereby fixing the Constitution on the firm
and proper foundation of the express consent of the people,
unalterable by the legislature, or any other authority but that by
which it is to be framed.' Only such a constitution based on this
undeniable authority' of the collective people would be something
'more than the will of the legislature' and therefore 'would have
the most promising chance of stability.' Then, in a brilliant
passage, Tucker summed up what Americans had done in two decades to
the conception of a constitution: The Constitution should be the
avowed act of the people at large. It should be the first and
fundamental law of the state and should prescribe the limits of all
delegated power. It should be declared to be paramount to all acts
of the Legislature, and irrepealable and unalterable by any
authority but the express consent of a majority of the citizens
collected by such regular mode as may be therein provided.' "
Such things as the Concord Resolutions, the Massachusetts constituent
procedures of 1779-80, and Tucker's powerful pamphlet prepared the way
for the use, in the Preamble to the Constitution of the United States,
of the phrase "We, the people of the United States" to
designate the enacting agent of the constitutive act.
Two major actions taken in the Philadelphia Convention, both of them
in a way "illegal," all but necessitated that way of
designating the source of the enactment.
The Resolution of Congress that called the Philadelphia Convention
into existence spoke of "the revision of the Articles of
Confederation" as the Convention's "sole and express
purpose." Early in the Convention, the members, relying on the
fact that the stated object of that revision was "to form a more
perfect union," in effect scrapped the Articles of Confederation
and proceeded toward the framing of a radically different kind of
constitution. In Federalist #15, Alexander Hamilton called
attention to the pivot of this change:
"The great and radical vice in the construction of
the existing Confederation is in the principle of legislation for
states or governments, in their corporate or collective capacities,
and as contradistinguished from the individuals of which they
consist. .. . [But] if we still will adhere to the design of a
national government ... we must resolve to incorporate into our plan
those ingredients which may be considered as forming the
characteristic difference between a league and a government;
we must extend the authority of the Union to the persons of the
citizens - the only proper objects of government."
The actions of the new national government were to exert their effect
directly on the individual citizens. The words of the Sutton farmers
became pertinent: "The law to bind all must be assented to by
all." A fortiori, the fundamental law - instituting
government, with assigned powers and purposes - should be assented to
by all. The Convention did not fail to follow through on the logic of
popular sovereignty. It called for special ratifying conventions, thus
bypassing the state legislatures. In Federalist #40, James
Madison flatly conceded the "illegality" of this action:
"In one particular it is admitted that the
Convention ... departed from the tenor of their commission. Instead
of reporting a plan requiring confirmation of the legislatures of
all the states, they have reported a plan which is to be confirmed
by the people, and may be carried into effect by nine states only."
In Federalist #22, Hamilton directly defended the change in
the mode of ratification:
"It has not a little contributed to the infirmities
of the existing federal system [i.e., under the Articles of
Confederation], that it never had a ratification by the people.
Resting on no better foundation than the consent of the several
legislatures, it has been exposed to frequent and intricate
questions concerning the validity of its powers, and has, in some
instances, given birth to the enormous doctrine of a right to
legislative repeal. Owing its ratification to the law of a state, it
has been contended that the same authority might repeal the law by
which it was ratified. However gross a heresy it may be to maintain
that a party to a compact has the right to revoke that compact, the
doctrine itself has had respectable advocates. The possibility of a
question of this nature proves the necessity of laying the
foundations of our national government deeper than in the mere
sanction of delegated authority. The fabric of American empire ought
to rest on the solid basis of the consent of the people. The streams
of national power ought to flow immediately from that pure, original
fountain of all legitimate authority."
In effect, the Grand Convention pressed for constitutive procedures,
like those used in Massachusetts in 1780, that would conform to and
confirm the doctrines about the people as the source of authority in
government. If the new national government was "to carry its
agency to the person of the citizens," then its legitimation
would have to come from the persons whom that government was to touch.
The decision that ratification had to come from people's conventions,
assembled for that special purpose, subjected the constitution that
issued from Philadelphia to general, widespread argument. Patrick
Henry, speaking in the Virginia ratifying convention against
ratification, said: "What right had they to say, 'We, the
people'? My political curiosity, exclusive of my anxious solicitude
for the public welfare, leads me to ask - Who authorized them to speak
the language of 'We, the people,' instead of, 'We, the states'? States
are the characteristics and the soul of a confederation. If the states
be not the agents of this compact, it must be one great,
consolidated, national government of the people of all the states."
Edmund Pendleton, for ratification, answered him: "But an
objection is made to the form: the expression 'We, the people' is
thought improper. Permit me to ask the gentleman who made this
objection, who but the people can delegate powers? Who but the people
have a right to form government? The expression is a common one, and a
favorite one with me.... If the objection be that the Union ought to
be not of the people but of the state governments, then I think the
choice of the former very happy and proper. What have the state
governments to do with it? Were they to determine, the people would
not, in that case, be the judges upon what terms it was adopted."
The Declaration of Independence had been issued by the United
States after an argument of the people as a whole with Great Britain,
as well as an argument among the peoples of the several states. The
struggle for ratification was also to be an argument. When both
arguments were concluded, the Revolution was consummated. The nation
was independent and it had instituted a new government.
James Madison, "the father of the Constitution," epitomized
the event in almost emblematic style: "In Europe, charters of
liberty have been granted by power. America has set the example of
charters of power granted by liberty."
The American people, it has become commonplace to say, venerate their
Constitution. More worthy of veneration, perhaps, than its actual
provisions is the manner of its making.
What has been said in these few pages about "We, the people of
the United States," about the people's constituent power, and
about appropriate procedures for its exercise, is masterfully
summarized in the prelude to John Marshall's opinion for the Court in
the 1819 M'Culloch v. Maryland case - an opinion of decisive
importance for the scope of federal power and for the future life of
the nation.
Maryland, along with several state legislatures, laid taxes on the
Second Bank of the United States. The Baltimore branch of the United
States Bank determined to ignore the state law, whereupon Maryland
brought suit against its cashier, James M'Culloch. He appealed the
Maryland court's decision, which had upheld the state law, to the
Supreme Court. John Marshall's opinion, for the Court, reversed and
found the state tax on the national bank unconstitutional.
The whole of Marshall's massive argument is not pertinent here. What
is pertinent to the points that have been urged in the preceding pages
is Marshall's prelude:
"In discussing this question, the counsel for the
State of Maryland have deemed it of some importance, in the
construction of the Constitution, to consider that instrument not as
emanating from the people but as the act of sovereign and
independent states. The powers of the general government, it has
been said, are delegated by the states, who alone are truly
sovereign; and must be exercised in subordination to the states, who
alone possess supreme dominion.
"It would be difficult to sustain this proposition. The
Convention which framed the Constitution was indeed elected by the
state legislatures. But the instrument, when it came from their
hands, was a mere proposal, without obligation or pretensions to it.
It was reported to the then existing Congress of the United States
with a request that it might 'be submitted to a Convention of
Delegates, chosen in each state by the people thereof, under the
recommendation of its legislature, for their assent and
ratification.' This mode of proceeding was adopted; and by the
Convention, by Congress, and by the state legislatures the
instrument was submitted to the people. They acted upon it in the
only manner in which they can act safely, effectively, and wisely,
on such a subject - by assembling in convention.
"It is true, they assembled in their several states; and where
else should they have assembled? No political dreamer was ever wild
enough to think of breaking down the lines which separate the states
and of compounding the American people into one common mass. Of
consequence, when they act, the) act in their states. But the
measures they adopt dc not, on that account, cease to be the
measures of the people themselves, or become the measures of the
state governments.
"From these conventions the Constitution derives its whole
authority. The government proceeds directly from the people; is
'ordained and established' in the name of the people; and is
declared to be ordained 'in order to form a more perfect union,
establish justice, insure domestic tranquillity, and secure the
blessings of liberty' to themselves and to their posterity. The
assent of the states, in their sovereign capacity, is implied in
calling a convention, and thus submitting that instrument to the
people. But the people were at perfect liberty to accept or reject
it and their act was final. It required not the affirmance and could
not be negatived, by the state governments. The Constitution, when
thus adopted, was of complete obligation, and bound the state
sovereignties.
"It has been said that the people had already surrendered all
their powers to the state sovereignties and had nothing more to
give. But, surely, the question whether they may resume and modify
the power granted to government does not remain to be settled in
this country. Much more might the legitimacy o the general
government be doubted had it bee: created by the states. The powers
delegated to the state sovereignties were to be exercised by their
selves, not by a distinct and independent sovereignty created by
themselves. To the formation of a league, such as was the
Confederation, the state sovereignties were certainly competent. But
when, 'in order to form a more perfect union,' it was deemed
necessary to change this alliance into an effective government,
possessing great and sovereign powers, and acting directly on the
people, the necessity of referring it to the people, and of deriving
its powers directly from them, was felt and acknowledged by all.
"The government of the Union, then (whatever may be the
influence of this fact on the case), is emphatically and truly, a
government of the people. In form and in substance it emanates from
them. Its powers are granted by them and are to be exercised
directly on them and for their benefit."
The fortunes of history gave the American people an unprecedented
opportunity to preside over its own political birth. Its birth gave
historical reality to doctrines about the sovereignty of the people
and the consent of the governed, which had hitherto lived only in the
order of reason. Those true doctrines came to be so firmly held that
there developed a determination to find exemplary procedures whereby
the import of those truths could be enacted, acted out, historically
staged. By their invention of clear and symbolic procedures, by their
insistence on the proper mode of enactment, the Americans
distinguished themselves. No nation had ever so brilliantly presided
over the consummation of its political birth.
A written constitution was the consummation. A constitution as law is
radically different from the laws made by a legislature that the
constitution sets up and to which it gives the authority to legislate.
Nevertheless, it falls under the generic conception of law. A medieval
statement of that conception defined law as an ordination of reason
for the common good instituted by whosoever has the authority and duty
to care for the community, and publicly promulgated. The lawmaker or
legislator must have authority; otherwise, his edicts or prescriptions
would be mere dictates of force. In the enactment of the fundamental
law which is a constitution, that authority must rest with the people
as a whole, for until the constitution has been enacted legislative
authority cannot be legally conferred upon any person or assembly of
persons. From their inherent right to self-rule, the people themselves
have the authority arid duty to act for the care of the community.
The lawmaker, whether the people as a whole or its authorized
representatives, exercises both reason and will in the formation and
enactment of a law. In the case of the fundamental law which is a
constitution, the lawmaker, in formulating the provisions of the
constitution, sets forth a reasoned ordination of the offices and
powers required for the administration of government. Having thus ordained
the form which the government is to take, the lawmaker, by an act of
will, establishes its existence.
Being thus rationally formulated and voluntarily instituted or
established, laws are made to serve a purpose, which is sometimes
explicitly stated, sometimes not. At the end of Book IV of The
Laws, Plato urged that every law should have a preamble stating
its purpose. The medieval definition of law stated the generic purpose
of any and every just law - "to serve the common good." The
Preamble to the law that is the Constitution of the United States
names six specific objectives which together constitute the common
good that is to be served.
in order to form a more perfect
union, establish justice, insure domestic tranquillity, provide
for the common defense, promote the general welfare, and secure
the blessings of liberty to ourselves and our posterity
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Before turning to those six objectives to ask questions about them,
first taking them all together and then taking each of them
separately, it is pertinent to ask whose objectives they are.
After the proposed Constitution has been adopted and is in force as
the fundamental law of the land, the objectives specified in the
Preamble are ends to be served by the constituted government. The
ultimate justification of any act of government, whether legislative,
judicial, or executive, should in principle at least reside in the
possibility of showing that it serves one or more of the objectives.
However, the objectives stated in the Preamble are objectives that
have been assigned to the government being created by the
Constitution. At the constituting moment - the point at which the
Constitution itself is being ordained and established by the people -
the Preamble states purposes that the people themselves have for
constituting a government, and a particular form of government. They
do not cease to be the people's purposes when, subsequently, they
become the assigned objectives of the government that the people have
established.
The authority and power conferred upon the officers of government, to
enable them to serve these purposes, is henceforth and always held by
them as instruments or vicegerents of the people. The constitutive
action by the people is not an act of abdication. The people does not
"confer all its authority and power" finally and irrevocably
upon the officers of government, as Justinian would have it when he
formulated the juridical fiction about the transmission of power and
authority from the people of Rome to the Emperor.
This is to be "a political experiment," James Madison wrote
in Federalist #39, resting "on the capacity of mankind
for self-government." It is "an experiment," Thomas
Jefferson said, "to show whether man can be trusted with
self-government." The people who have established a government
for themselves are to remain, after that government has been
established, the permanent, principal rulers; the officers of the
established government function only as the transient, instrumental
rulers, responsible (in the words of Lincoln) to "their masters."
The people as principal rulers must continually measure the
performance of their appointed representatives - their instruments of
government, now in office, now out - by reference to the purposes or
objectives that it had in mind when it devised this framework of
government, under which they hold office for a time.
There are two other ways of making what is substantially the same
point about the implications of the people's constituent act. Charles
McIlwain, an authority on the Western constitutional tradition,
emphasizes that the very idea of constitutionalism always meant limited
government. A constitution is a fundamental law placing legal limits
on the power of government. When the constitution is a written one
issuing from a single constituent act, the point is fully manifest. If
the transmission of authority and power was to be total and final, as
in the Roman juridical fiction about the emperor, there would be no
point to a constitution. A totalitarian government has no limits;
whatever pleases it has the force of law. The statement of limits in
the Preamble is in terms of broad, general purposes. But their very
statement as the people's purposes serves notice that this it to be
limited government. The limits will be given a more determinate
statement in the provisions of the Constitution, which grants and
withholds certain powers.
Again, the very idea of a constitution, issuing from a people and
limiting government by the very act of setting forth its organization,
implies the distinction between society and the state. (The terms "the
people" and "society" designate the same entity. The
first term, "the people," emphasizes that a society is a
whole composed of human persons who are themselves natural wholes. The
second term, "society," emphasizes that the entity referred
to does not have the kind of unity that a natural organism possesses;
it has only a unity of order - a unity that stems from the fact that
the persons who comprise the society continue to associate for a
common purpose, their common good.) The distinction between society
and the state is effectively destroyed by any sort of totalitarianism,
in which the state, in its omnipotence and omnicompetence, uses "the
people" as passive material to be molded or shaped by the state,
exercising unlimited powers.
Constitutionalism maintains the distinction between society and the
state. Society is an association of associations, including the
family, religious associations, economic corporations, intellectual,
artistic, and professional associations of many kinds, as well as the
political association that is called the body politic or the state.
Effective powers may be conferred upon the officers of government to
achieve the objectives of the political association into which the
people have entered. But the people who are members of that
association are also members of other associations that have other
unifying purposes, to serve which they must retain a limited autonomy
in the discharge of their functions. That autonomy is preserved only
so long as the government of the political community does not intrude
or encroach upon the operation of these nonpolitical associations.
Government should do for the people, Lincoln was to say later, only
what the people cannot do for themselves, either as individuals or
through the various associations that they form to serve one or
another nonpolitical purpose.
The points made - about the objectives of government as the purposes
of the people who have established the government, about the limited
and instrumental character of the government thus established, about
the distinction between society and the state, and about the relation
of the political community to other forms of human association within
the society as a whole - are confirmed by the very diction of the
Preamble. The Preamble does not say, for example, that government is
being instituted for the purpose of unifying the people of the several
states, but rather for the purpose of making such unity as already
existed more perfect. If the people did not antecedently possess some
unity, they could not have acted as a people. Similarly, if they did
not antecedently have liberty, they could not have performed the free
political act of constituting a government to serve the purpose of
securing the blessings of liberty to themselves and their
posterity. Each such phrase - to make more perfect, to establish, to
insure, to provide for, to promote, to secure - bears witness to the
instrumental fashion of government in serving the objectives assigned.
The six objectives stated in the Preamble should first be considered
in their relation to one another as elements of the common good:
in order to form a more perfect union,
establish justice, insure domestic tranquillity, provide for the
common defense, promote the general welfare, and secure the
blessings of liberty to ourselves and our posterity . . .
In the Preamble to the Massachusetts Constitution of 1780, John Adams
wrote:
"The body politic is formed by a voluntary
association of individuals; it is a social compact by which the
whole people covenants with each citizen and each citizen with the
whole people that all shall be governed by certain laws for the
common good."
The word "common" in the phrase "common good,"
can be understood in two ways: on the one hand, as signifying goods
that are common to all because they are the same for all; on the other
hand, as signifying goods that are common to all because they are
shared or participated in by all. The happiness which all human beings
have an inalienable right to seek for themselves as individual persons
is not an individual but a common good, in the sense that the elements
of a good human life are the same for all, even though each individual
seeks in his own way to make a good human life for himself. The
domestic tranquillity of a society, its unity, the justice of its
laws, its self-defense or security, the general welfare, and the
blessings of liberty - these, too, are not individual but common
goods, in the sense that they are goods shared by or participated in
by all members of the political community.
A good government is one that serves the common good in both senses
of the term: in the first sense when it aims to secure for each member
of the community his inalienable human rights, among which the right
to seek personal happiness is principal and ultimate; in the second
sense when it aims to achieve the objectives stated in the Preamble,
for each of these is a good in which all members of the community can
and should participate or share.
The Declaration of Independence states the ultimate objective to be
achieved by a just government. The Preamble states objectives that
serve as means to that ultimate objective; for without the elements of
the shared common good specified in the Preamble, the individual
persons who compose the political community cannot effectively engage
in the pursuit of happiness. Just as they must have their lives and
liberties protected as conditions indispensable for living well, so
they must enjoy the unity, and peace or tranquillity of civil society,
a civil society in which justice is done, in which political liberty
prevails, and in which the general welfare is promoted - for without
these things, they will be impeded or frustrated in their efforts to
live well. The reason for their association in a political community
is to secure for themselves these common goods so indispensable to
their pursuit of happiness.
When the phrase "common good" is used in the singular, it
embraces, as elements of itself, the plural common goods specified in
the Preamble. The six objectives assigned to government by the
Preamble provide us with an articulation of the all-embracing and
complex common good. The six purposes, though clearly distinct, must
be related to one another; they are like parts of an organic whole,
not discrete items in a mere aggregation or collection.
The assertion that no society worth living in can exist without
unity, justice, peace, self-defense, welfare, and liberty does not
preclude what might well be an extended set of problematic
interrelations - no unity without justice; no domestic tranquillity
without justice; no welfare without justice; no liberty without
justice; or no justice without unity, order, and peace; or no justice
without liberty; or no domestic tranquillity without justice; and so
on. Given that kind of tension in the interrelations of the six, grave
errors of emphasis are certainly conceivable and even likely to occur.
For example, an inordinate devotion to public tranquillity (lately
called "law and order") might become a threat to justice; an
inordinate desire to have the general welfare promoted might threaten
liberties; an inordinate devotion to liberties might hamper doing
justice; an inordinate concern for the common defense (lately called "national
security") might subvert the concern for justice and for liberty.
The suggestion is not only that the political life of the nation
should be assessed by reference to the way in which we have
implemented the six purposes stated in the Preamble, but also that the
constitutional history of the nation should be examined for mistakes
of policy in trying to achieve one or another of these objectives at
the expense of others.
We turn now to each of the six objectives considered by itself.
In the context of the Convention of 1787, there is no question about
what this clause meant historically, and no question as to why it had
to come first. The Convention was called because of the pervasive
judgment that the Articles of Confederation had failed to bring
sufficient unity to the United States, had indeed brought impotence
and confusion at home, and dishonor and distrust abroad. Hence the
primary motive for the calling of the Convention lay in the hope that
means could be found to bring about a more perfect union than the
Articles had achieved.
The debates, in the public forum and in the ratifying conventions,
centered upon the style and vigor of the union that would be served by
the new Constitution. The design of a federal republic was itself a
novelty. The intent - to have "an indissoluble union of
indestructible, hitherto 'sovereign' states" - outran all
political experience.
In the years ahead, the evocation of "the Union" was to
become a kind of talisman. The major theme of Washington's noble
Farewell Address was "the Union." He spoke of it reverently,
but with grave apprehensions about its present state and its future.
He spoke of it not just in juridical terms, but as something
delicately affected - helped or harmed -- by actions in every
dimension of the effort at a truly national life.
The campaign leading to the election of the third President of the
United States was marked by virulent hostility between the "parties"
of Hamilton and Jefferson. Jefferson's First Inaugural was tense with
his hope and his effort to initiate a reconciliation - to move toward
the concord so necessary and so desirable. Only a few decades later,
the controversy about nullification occurred. By the time of Lincoln's
First Inaugural it was possible - and necessary - to assert that "a
disruption of the federal Union, heretofore only menaced, is now
formidably attempted."
Before leaving these brief intimations about the theme of "the
Union" in our national history, some words from Lincoln's First
Inaugural Address, in that ominous context, should be set down:
"I hold that, in contemplation of universal law and
of the Constitution, the Union of these states is perpetual. ... The
Union is much older than the Constitution. It was formed, in fact,
by the Articles of Association in 1774. It was matured and continued
by the Declaration of Independence in 1776. It was further matured,
and the faith of all the then thirteen states expressly plighted and
engaged, that it should be perpetual by the Articles of
Confederation of 1778. And finally, in 1787, one of the declared
objects for ordaining and establishing the Constitution, was 'to
form a more perfect Union.'
"But if destruction of the Union by one or by a part only of
the states be lawfully possible, the Union is less perfect
than before the Constitution, having lost the vital element of
perpetuity.
"It follows from these views that no state, upon its own mere
motion, can lawfully get out of the Union - that resolves and
ordinances to that effect are legally void; and that acts of
violence within any state or states against the authority of the
United States are insurrectionary or revolutionary, according to
circumstances.
"I therefore consider that, in view of the Constitution and
the laws, the Union is unbroken; and to the extent of my ability, I
shall take care, as the Constitution itself expressly enjoins upon
me, that the laws of the Union be faithfully executed in all the
states. Doing this I deem to be only a simple duty on my part; and I
shall perform it, so far as practicable, unless my rightful
masters, the American people, shall withhold the requisite means
or in some authoritative manner direct the contrary."
The continual, heightened concern about "the Union" in our
life as a nation derives from the fac that as a matter of historical
development the union originally conceived as of the states has become
and has come to be regarded as, a union also of the people. However,
there are good philosophical reasons why "to form a more perfect
union" should be the first item in an articulation of the common
good and of the purposes of government - the first item in the
preamble to any constitution, not just ours.
A society -- a multitude of human beings associated for a common
purpose and a common life -- does not exist in nature as biological
organisms do. It comes into existence by the voluntary actions of the
human beings who decide to associate. Precise because it originates in
this way, it is said to be conventional (a thing of voluntary
institution), not natural (a product of nature). But it is not pure
and simply conventional.
The reason why human beings form societies (doing voluntarily what
other gregarious animals do instinctively) is that men are social by
nature; that is, they need to associate with their fellow men in
communities in order to lead characteristically human lives. Their
common purpose is the cooperative pursuit of happiness, or the mutual
supplementation of their several capacities for pursuing it. Human
societies, especially the family and the state or political community,
are thus both natural and conventional, natural in the sense that they
arise in response to a natural need, and conventional in the sense
that the way in which they do arise is by rational and voluntary
action rather than through the blind impulse of instinct.
In any society, especially in that most complex of all societies
which is the state, government is necessary to effectuate the union of
wills that brought the society into being in the first place. A
government is well designed and good in performance if the way in
which it directs and coordinates the life of the society instructs the
associated human beings in the implications of the social ties which
bind them together as one people. It should also confirm and
strengthen their dedication to the objectives which they sought to
achieve by willing to associate.
To whatever extent, then, the activities of an instituted government
enlighten and strengthen the basic unity that gives a people its
historical existence, to that extent the government is good. On the
other hand, a government could have the opposite effect if, in the
name of forming a more perfect union, it were to impose a rigidly
uniform test of loyalty; or if, panicking about the security of the
union, it were to violate liberties that were intended to be
immunities from government.
As there was a pressing need for a more perfect union, so there was
an equally pressing need for the administration of justice. The
authors of the Federalist Papers, after dealing with the
question of union and with the incompetence of the Articles of
Confederation in that respect, turned next to the inadequacy of the
Confederation in the sphere of justice. Alexander Hamilton, in Federalist
#22, wrote: "A circumstance which crowns the defects of the
Confederation remains yet to be mentioned - the want of a judiciary
power." The Articles of Confederation contained no provisions for
national courts. In Hamilton's view, the consequent domestic
conflicts, confusions, and lack of uniformity in the administration of
justice were intolerable. "Is it possible," he asked, "that
foreign nations can either respect or confide in such a government?"
The second clause in the Preamble was obviously in response to a
defect in the existing state of affairs that must have been widely
felt.
On the plane of more general and philosophical considerations, the
second clause can be seen as following hard upon the first. Almost as
important as concern for the precarious kind of unity that gives a
society its very being is concern for the quality of the
interactions among persons that give a society its life. It is
for this reason that a constitutional government should aim at
establishing justice.
Starting with Plato's Republic and Aristotle's Ethics
(Book V), the consideration of the idea of justice runs through the
whole tradition of Western political thought. At certain moments in
that tradition, justice is broadly conceived as encompassing three
different sets of relationships: the duties or obligations that the
individual has with respect to society itself; the rights and duties
that individuals have in relation to one another; and the obligations
that organized society has with respect to the rights possessed by the
human beings who are its members. These three sets of relationships,
or dimensions of justice, can be denominated contributive
justice, commutative justice, and distributive
justice.
When it is thus broadly conceived, justice can be viewed as the
overriding objective of government, one that subsumes, if it does not
include, the other objectives mentioned in the Preamble. In Federalist
#51, Madison, for example, said: "Justice is the end of
government. It is the end of civil society. It ever has been and ever
will be pursued until it be obtained, or until liberty be lost in the
pursuit."
The Declaration of Independence had spoken of a just government as
one that secures to each man his inalienable rights. When organized
society, through the laws and actions of its government, renders to
its members what is rightly due them, distributive justice is being
done. Questions of justice raised about the fundamental law of the
land - the Constitution - are questions of distributive justice. But
when, in the framing of the Constitution itself, the Preamble calls
for the establishment of justice, the framers have in mind how the
government being instituted must be set up to insure that commutative
justice is done - justice in the transactions between one member of
society and another. It is in this narrower conception of justice that
the establishment of justice appears to be coordinate with the other
five objectives of government stated in the Preamble.
Commutative justice involves correlative rights and duties - rights
that one individual claims for himself and demands that others
respect, and duties on the part of others to respect those rights -
for example, an individual's right to security of life and limb; his
right against the invasion of his privacy or arbitrary intrusion in
his home; his right against defamation of character; his rights with
regard to the acquirement, accumulation, exchange, and conveyance of
property. When such rights are legally acknowledged, the laws impose
upon all the obligation to respect them. Whereas distributive justice
consists in those measures by which the state or organized society
renders to each person what is rightfully due him, commutative justice
consists in one individual's rendering to another what is due him or
is his by right.
In order for men to live peaceably together in society and have
peaceful commerce or dealings with one another, the rights and duties
which are involved in commutative justice have to be given
authoritative and definitive recognition, either in immemorial customs
that have the force of law or by the enactment of positive laws which
prescribe or prohibit certain acts on the part of one individual in
relation to another. In addition, a system of courts has to be set up
to render judgments in particular cases that fall under these laws;
and sanctions have to be applied for the enforcement of the decisions
rendered by the courts in the resolution of litigations. To establish
justice, then, a constitution must provide for legislative and
judicial bodies and for agencies able to enforce the laws and the
decisions of the courts.
When we turn from commutative to contributive justice, we turn from
the field of private to the field of public law. Contributive justice
involves other rights and wrongs than those covered by the laws of
property, contract, torts; it also covers more than the wrongs
prohibited by the criminal law. On the positive side, it requires that
a man, in his relation to all others with whom he is associated in
organized society, should render to them what he owes them in virtue
of their common social nature and purpose. He owes them the
contribution he can make toward the common good - toward their
cooperative realization of a good human life for all. The
conscientious direction of his talents to the service of society is an
obligation that the virtuous man discharges. It is in this sense that
Aristotle spoke of the man whose moral virtue directed him to serve
the common good as exhibiting "general justice," reserving
the term "special justice" to cover commutative and
distributive justice.
In the period of this nation's formation, Americans had other words
in their lexicon for contributive justice. "The word republic,
res publica," Thomas Paine said, "means the public
good, or the good of the whole." From his very rich knowledge of
the literature of this period, Gordon S. Wood tells us that "no
phrase except 'liberty' was invoked more often by the revolutionaries
than 'the public good.' " The men of that time had learned from
Montesquieu how the principle of republican government differs from
that of a monarchical or despotic regime. "There is no great
share of probity necessary to support a monarchical or despotic
government," Montesquieu had written. "The force of laws in
one, and the prince's arm in the other, are sufficient to direct and
maintain the whole. But in a popular state, one spring more is
necessary, namely, virtue" - the virtue of men as
citizens, public virtue.
The men of the revolutionary-constitutional period understood that
their experiment in self-government depended for its success on the
people's capacity for public virtue. The concept of public virtue is
identical with Aristotle's concept of contributive justice. We would
today call it "public-spiritedness," and we would find it
manifest in voluntary action for the common good on the part of
individuals in dealing with such things as an energy shortage or
widespread pollution. Our ancestors would have recognized that the
task of establishing justice did not extend to this dimension of
justice. They would have realized that contributive justice in the
conduct of citizens must be largely left to the promptings of moral
virtue on their part - largely, but not entirely, for the law does
prescribe some actions for the common good, and prohibits some that
are injurious to it.
The thrust of distributive justice is in the opposite direction to
that of contributive justice. Contributive justice concerns the
obligation of the individual to act for the good of society as a
whole, an obligation that the individual is sometimes legally required
to discharge, but more often discharges from moral conscience in the
absence of any specific legal requirement. Distributive justice
concerns what is due the individual from organized society as a whole.
It aims to see that each individual shall have his fair Share of the
goods that only organized society can make available to all. With
regard to such goods in which the members of society can share,
distributive justice is done when the distribution of these goods is
fairly apportioned. The doing of distributive justice is mainly
covered in the Preamble under a later clause - the one that calls for
the promotion of the general welfare.
Widely read in Western history, particularly the history of the Greek
city-states and of the Roman Republic, the writers of the Preamble
were thoroughly aware of the distresses to which the body politic is
prone - crime and civil turmoil. They were equally cognizant of the
traditional affirmation of peace - civil peace - as a component of the
common good and as one of the advantages that men seek to derive from
living in civil society. Their phrasing of this third objective of
government echoed the language of Augustine, who had defined peace as
"the tranquillity of order." They probably also knew that
civil peace had been spoken of as "the work of justice," at
least to the extent that justice removes the obstacles to peace by
removing incentives to crime and to violence in the effort to remedy
grievances.
Although they are closely related, peace and justice are nevertheless
distinguishable aspects of the common good. The undertaking to
establish justice presumes the prevalence in the people of the
personal virtue of justice, for which it seeks to provide stable
arrangements through which virtuous inclinations can find orderly and
effective realization. The undertaking to insure domestic tranquillity
attempts to ward off the prevalence of acts springing from the vice of
injustice. Helping prevalent justice to find steady realization and
preventing vice from becoming prevalent are clearly enough
distinguishable even as, in public medicine, measures that promote
health are distinguishable from measures to prevent disease.
Civil peace is also closely related to social union. Without the
bonds of union and the tranquillity of orderly life, a society would
hardly exist as such and would be unable to pursue any purpose in a
sustained fashion. The maintenance of peace, like the strengthening of
union, is therefore to be regarded as having a certain priority to the
establishment of justice, even though it is also true that the
establishment of justice contributes to the maintenance of civil peace
and social unity.
The leaders and people of the revolutionary generation were not so
enamored of peace that they would be willing to acquiesce in any
measures that might be proposed for maintaining it. They had not been
willing to forgo, for the sake of peace, their rights to take whatever
steps they thought necessary to redress their grievances, even steps
that involved violent disturbances of the peace. In resisting British
edicts and protesting against encroachments, they had often
deliberately fomented domestic turbulence when their petitions for the
redress of grievances went unheeded. Hence, in instituting a new
government, they would perforce be sensitive to the possibility that
certain measures directed to insure domestic tranquillity might result
in the reduction of liberty. "A new nation, conceived in liberty,"
would not wish, for the sake of unbroken civil peace, to debar
legitimate efforts of free men to protest against injustices suffered
or to probe toward the expansion or fuller realization of justice.
To insure domestic tranquillity without encroaching upon liberties is
a delicate assignment for the constitutional government of a free
society. America's most penetrating nineteenth-century visitor, Alexis
de Tocqueville, wrote a warning on the point:
"The dread of disturbance and the love of well-being
insensibly lead democratic nations to increase the functions of
central government as the only power which appears to be
intrinsically sufficiently strong, enlightened, and secure to
protect them from anarchy. . . . All the particular circumstances
which tend to make the state of a democratic community agitated and
precarious enhance the general propensity and lead private persons
more and more to sacrifice their rights to their tranquillity. . .
.The love of public tranquility becomes ... an
indiscriminate passion, and the members of the community are apt to
conceive a most inordinate devotion to order."
The point of the warning cannot be lost on the American people in our
own day - a time of convulsive conflicts about social and racial
injustice, about undeclared war, about the increasing incidence of
crime and of random violence, about the bewildering speed of social
change. We still have a fresh memory of actions taken in violation of
laws to test their constitutionality. Only a short time ago mass
protest meetings and parades took place, suggesting by their size and
intensity the latent presence of violent disorder. New questions have
been asked about the adequacy of existing means for effective civil
dissent by lawful means, and about the proper understanding and role
of civil disobedience. Something like a constitutional crisis arose
from a line of decisions handed down, over bitter dissenting opinions,
by the Warren Court in Fourth, Fifth, and Sixth Amendment cases -
decisions that limited the power of police by affirming such
procedural safeguards as enlarging prisoners' right to counsel and
setting stricter standards for gathering evidence and conducting
interrogations. A new Administration and an altered Court have
proceeded to a series of significant alterations in laws and in legal
doctrine.
One thing remains constant. A constitutional government, charged "to
insure domestic tranquillity," must see to it that law
enforcement is itself lawful, its processes articulated in law, its
conduct subject to steady, critical, and politically accountable
examination by the people.
There can be no question of a general sort about the inclusion of
this objective. Indeed John Jay and Madison, in the Federalist
Papers, spoke of it as "first":
"Among the many objects to which a wise and free
people find it necessary to direct their attention, that of
providing for their safety seems to be the first. The safety
of the people doubtless has relation to a great variety of
circumstances and considerations, and consequently affords great
latitude to those who wish to define it precisely and
comprehensively.
"At present I mean only to consider it as it respects security
for the preservation of peace and tranquillity, as well as against
dangers from foreign arms and influence, as from dangers of
the like kind arising from domestic causes. As the former of
these comes first in order, it is proper it should be the first
discussed. Let us therefore proceed to examine whether the people
are not right in their opinion that a cordial Union, under an
efficient national government, affords the best security that can be
devised against hostilities from abroad" (John Jay,
Federalist #3). "Security against foreign danger is one
of the primitive objects of civil society. It is an avowed and
essential object of the American Union. The powers requisite for
attaining it must be effectually confided to the federal councils"
(James Madison, Federalist #41).
However, questions certainly did arise concerning how the defense
would be "common," where and how the authority "to
provide" for defense would be constitutionally placed, and how
such authority could be limited so that its exercise would not
threaten the concern for other objectives, especially the
preservation of liberty. "The liberties of Rome," Madison
wrote in Federalist #41, "proved the final victim to
her military triumphs; ... the liberties of Europe . .. have, with
few exceptions, been the price of her military establishments."
In the consideration of such questions, certain premises were
appealed to because of their clear relevance.
The Virginia Declaration of Rights, written by George Mason and
adopted by the Virginia Constitutional Convention on June 12, 1776,
was one of the central documents of the era. Section 13 of that
Declaration read as follows:
"That a well-regulated militia, composed of the body
of the people, trained to arms, is the proper, natural, and safe
defense of a free state; that standing armies, in time of peace,
should be avoided as dangerous to liberty; and that in all cases the
military should be under strict subordination to, and governed by,
the civil power."
The three propositions in that Section 13 probably circulated in the
Grand Convention and in the ratifying conventions as propositions that
should be regulative for the determination and ratification of the
military part of the Constitution.
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