On a lively email list of which I am a member, a discussion of some controverted legal doctrines digressed into a debate over the status of the Preamble to the US Constitution. Several incisive lawyers insisted that its status, legally, is, in practice, nil. They allowed that the phrase “We the People” establishes the legitimacy of the document as having been made by consent, which is of course what the Declaration of Independence lays out as the basis for the just powers of government. But what they denied is that the remaining clauses of the Preamble can have binding authority.
Strictly speaking, I suppose, we would all be alarmed if, let us say, the learned justices of the Supreme Court, taking in hand a duly-enacted piece of legislation, and scrutinizing its content, adjudged it unconstitutional on the grounds that it failed to “promote the general Welfare” or “secure the Blessings of Liberty.” That would be an open door to extraordinary mischief, which the Philadelphia Convention surely did not intend. In that sense I agree with my lawyerly interlocutors: the Preamble cannot be thought to formally bind statutory enactment as the rest of the document does.
But where I part ways with them — and part ways with the ingrained scholarly habit of what we might call, with a touch of burlesque, “latent anti-Preamblism” — is when they undertake to set aside the Preamble more comprehensively, when they commence a reading of American constitutionalism abstracted from the purposes laid out there: in fine, when they embark on an effort to understand our political tradition without including in that attempt an understanding of that complex, winding sentence which serves to put the world on notice as to what ends “We the People” have set ourselves by constituting ourselves a unified people here in these United States of America.
To nail down the position of latent anti-Preamblism more precisely: The Preamble (according to this doctrine) amounts to a lot of throat-clearing, and should not be taken to overawe the more meaningful work that follows. As a friend gamely put it, “A Preamble in such a document was not intended to be used as an interpretative guide to the document any more than your first yawn of the morning should be used to interpret the manner in which you order coffee in the evening.”
I call this position “latent” precisely because it is so rarely articulated — or articulated at all, much less with the verve of my friend’s analogy above. Indeed, the Preamble tends to get short-thrift in the conventional treatment of American political theory. Schoolchildren, it is true, still memorize it; and certainly that single ringing phrase — “We the People” — is ubiquitous in our national symbolism and self-understanding. Less ubiquitous, but still quite common in literature and conversation, is the “more perfect Union” clause; most commonly in connection with the Civil War, which by righting a calamitous wrong vouchsafed a more perfect Union. So it is not that the Preamble is simply ignored; it is rather that it has endured a curious neglect of careful study and exegesis, even among scholars inclined to think very highly of the Constitution.
It is rarely noticed, for instance, how much the Preamble shares, in terms of both form and content, with earlier documents in American political history — documents, even (awkwardly for our anti-Preamblists), which go no further than doing what the Preamble does. That is to say: casting an eye across the centuries of political arrangement in North America, it is something of a puzzle to discover several documents of high importance, which appear to anticipate in framework and substance, the political work done later in the Preamble — at least, it is something of a puzzle if we accept the “throat-clearing” doctrine of the anti-Preamblists. It seems that at certain crucial moments, when our ancestors were bent over the problems of constituting political structures for themselves, they produced documents that accomplished little more than a good clearing of the throat.
Consider what is the first political document, duly ordained and established by Christian men, to be promulgated in the New World: the Mayflower Compact. (In addition to its other virtues, the Compact is very compact indeed, and thus susceptible, I think, to full quotation without disrupting the flow of this essay.)
IN THE NAME OF GOD, AMEN. We, whose names are underwritten, the Loyal Subjects of our dread Sovereign Lord King James, by the Grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, &c. Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a Voyage to plant the first Colony in the northern Parts of Virginia; Do by these Presents, solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid: And by Virtue hereof do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions, and Offices, from time to time, as shall be thought most meet and convenient for the general Good of the Colony; unto which we promise all due Submission and Obedience. IN WITNESS whereof we have hereunto subscribed our names at Cape-Cod the eleventh of November, in the Reign of our Sovereign Lord King James, of England, France, and Ireland, the eighteenth, and of Scotland the fifty-fourth, Anno Domini, 1620.
Now the form of this document evidences a remarkable resemblance to that of the Preamble; and while in substance there are manifest differences, there are also some striking points of likeness.
First, there is the statement of who “we” are — we who are undertaking to constitute ourselves in political society. In the Preamble this matter is simpler, more concise, and partakes of none of the explicitly religious and monarchical imagery noticeable here (although it is worth pointing out that both the Compact and the Constitution are signed according to the “Year of our Lord” formulation): there it is We the People of the United States; here it is We the Loyal Subjects of our dread Sovereign Lord. But the earnestness of the self-identification is plain enough in both cases.
Next, there is the predicate — the proclaimed act of a formation of political society. The similarities oblige attention: “Do ordain and establish this Constitution” and “Do … covenant and combine ourselves together into a civil Body Politick.” In the Compact this proclamation is recapitulated, with some very interesting variations: “do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions, and Offices.”
Finally, neither document neglects what is the meat of the matter: a statement of purpose. To what ends do we, who have thus constituted ourselves a people, now dedicate ourselves? The signers of the Mayflower Compact declare their purposes to be (1) “our better Ordering and Preservation, and Furtherance of the Ends aforesaid” — those aforesaid ends being religious and patriotic in nature — and (2) the framing of just and equal laws for “the general Good of the Colony.” The Preamble, meanwhile, delivers the famed six purposes: union, justice, domestic tranquility, common defense, general welfare, and securing the blessings of liberty. And again the reader is struck by a manifest degree of similitude. The concept of justice appears in both; general good is right next door, as it were, to general welfare; better ordering is not far from a more perfect union; preservation may be said, with no great leap of imagination or logic, to compass both domestic tranquility and common defense.
Where the two documents do diverge, to repeat, is in this: that the Compact makes abundantly clear that its signers are religious people, whose enactment of political society is done “solemnly and mutually” before God and for the advance of His Kingdom, under the particular earthly kingship of the English “dread Sovereign.”
Let us notice, also, the spirit of moderation or humility that suffuses the Compact. It is most striking in phrase “as shall be thought most meet and convenient” for both “better ordering” and “the general Good of the Colony.” There is little by way of enthusiastic confidence, much less world-historic grandiosity, surrounding the Pilgrims’ estimation of their chances for success or renown. All they promise is that their laws, ordinances, acts, etc. shall be thought meet and convenient to the general welfare. We observe nothing of the sort of thing later (much later) generations of Americans got wrapped up in: namely the notion that form of government is sufficient to insure its success. There is no detectible sense of certainty that any form of government will guarantee better ordering. There is little confidence at all in any form government abstracted from the character of the people. The people must “solemnly and mutually” embark on this venture of self-government, under God, drawing on their own resources and their own virtue.
That is all well and good for a bunch of Calvinists at the edge of a howling wilderness, the critic might reply. Surely all this unbecoming diffidence was left behind as time wore on. Well, perhaps. But even the modern enthusiastic exponent of the gospel of Democracy may be caught up short to discover a phrase unmistakably reminiscent of the Compact’s humility in no less a document of grandiose claims than the Declaration of Independence: “it is the Right of the People to alter or to abolish [a Government destructive of rights], and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” (Emphasis added.)
Nor is that all: Under careful examination we find this spirit of moderation and humility positively pervading the documents of the Founding era. We find, for instance, similar echoes in the language of the Virginians, whose own Declaration of Rights was promulgated in the same year. The Virginians, for their part, announce that “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community”; and when it goes bad, they say, “a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.”
A year later, in New York, the people’s representatives declared themselves resolved to “institute and establish such a government as they shall deem best calculated to secure the rights, liberties, and happiness of the good people of this State.” In Pennsylvania it is much the same. That State’s representatives announce that, “whenever [the] great ends of government are not obtained, the people have a right, by common consent to change it, and take such measures as to them may appear necessary to promote their safety and happiness.” In New Hampshire the phrase is, “such measures as we should judge best for the public good”; the North Carolinians speak of their purpose of “framing a Constitution, under the authority of the people, most conducive to their happiness and prosperity”; and the Georgians, meanwhile, undertake to “adopt such government as may, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular and America in general.” (Emphasis added in all of the above.)
I present none of this as some definitive answer to the standard reading of American political history. I present it only as a suggestion of the lineaments of an alternative reading which, far from being a transplant from other, alien sources onto the texts, in fact emerges from the texts themselves, especially to the extent that they follow in patterns that have largely eluded the transmitters of that standard reading. The Preamble to the United States Constitution fits in pretty neatly with this alternative reading; at the very least it introduces some difficulties for the conventional view, with its touchstones of “natural rights” and equality, neither of which is so much as mentioned in the Preamble. The Federalist, too, abounds with passages not easy to assimilate into the Lockean framework; above all, perhaps, its famous softening of the source of political right from sheer will, as many moderns proposed, into deliberation and consensus.
(The book to read for those interested in these matters is The Basic Symbols of the American Political Tradition, coauthored by Willmoore Kendall and George Carey, to whom I am indebted for much of the above.)