The preamble

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Preamble is written as a single clause; the subject is “We the People of the United States” and the predicate is “do ordain and establish this Constitution for the United States of America.” This is sometimes described by legal scholars as the Enactment Clause. This is the normative content of the Preamble; all else is rationale.

The Framers here claim, first, that they are speaking for the People of the United States; and, second, that this empowers them to ordain and establish a Constitution for the United States. The wording is carefully chosen. To ordain is to decree by virtue of superior (often divine) authority. To establish is to create a new institution, and put it securely into place. Indeed, the Latin root of establish is stabilire, to make something firm.

Few Americans today doubt that the people of a nation are entitled to frame a constitution for their government.  The concept is central to the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, 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.

But one should not ignore what follows:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Even Jefferson, who was one of the more radical of the Founding Fathers, here rejected an unconditional right of revolution. Revolution was justified only when there were weighty and lasting grievances, manifestly tending towards absolute despotism.

Were the Framers justified in claiming to speak for the people of the United States, and did they have just cause to abolish the Articles of Confederation and replace them with a new Constitution? Their original commission was simply “for the sole and express purpose of revising the Articles of Confederation”, and the decision of the majority of delegates to propose completely reframing the federal government was, at best, a considerable stretch of their authority.  We assert that the work of the Convention amounted to a second American Revolution, in which one government was abolished in favor of another. Americans do not customarily see it that way, but only because this revolution was essentially bloodless, and because the Framers appealed to the people of the states to ratify their usurpation of authority (for that is what it was); and, after serious and thoughtful debate, three-quarters of the state legislatures voted to do so. The people, through their legislators, acknowledged that the Framers had spoken for them.

It is noteworthy that Rhode Island, which refused to send delegates to the Convention and which was the last of the original states to ratify the Constitution, did so, not under military pressure, but because the other twelve States were prepared to begin treating Rhode Island as a foreign nation if it did not ratify.

But what were the weighty and lasting grievances, manifestly tending towards absolute despotism, that justified this revolution? The threat came from both without and within. The United States under the Articles of Confederation was more like the modern United Nations than like a federal government of a single nation. The original federal government consisted of a single legislative body, in which each state had a single vote, with no executive and no judiciary. We have already discussed the perils of simple government as understood by John Adams and his contemporaries. The Congress of the Confederation was a single body, and the solution that was chosen to keep it from using its power to become despotic was to give it very little power. The Congress could neither levy taxes nor tariffs nor enforce any of its treaties or laws on the states. Nor could it compel any state to deliver its share of funding to keep the federal government running. Any changes to the Articles of Confederation could be vetoed by a single state, and this twice prevented any change in the Articles to give the Congress the power to raise taxes. Important legislation, such as declarations of war, the making of treaties, or the borrowing of money, required large supermajorities of Congress.

This made Congress all but powerless to defend American interests from foreign powers. Congress was denied the funding by the states necessary to pay its foreign debts or to maintain garrisons along the strategic Ohio and Mississippi Rivers. Spain had already begun to take advantage of American weakness by interfering with American navigation rights on the Mississippi. Britain, France, and Spain had begun placing restrictions and heavy duties on American trade, but Congress was unable to coordinate a trade policy in response. If one state attempted to impose a duty on imports, another state would declare its ports free to gain an economic advantage. Some states had even begun placing duties on imports from other states.

This was the external threat: that the Congress of the Confederation was too weak to prevent the United States succumbing to foreign despotism. The dilemma was that giving Congress more power could lead to internal despotism. But there was already an internal threat from populist despotism. Most of the states had enthusiastically adopted the concept of legislative supremacy, and their governors were rendered impotent and their judiciaries were under the control of the legislatures. When a postwar depression swept the states, the legislatures were under immense pressure to provide economic relief, usually in the form of relieving debts and deferring tax payments, at the expense of creditors and of the nation as a whole. When Massachusetts refused to pass an economic relief act, it was confronted with Shay’s Rebellion, which took months to put down. There was no federal army to call upon for assistance.

All this is reflected in the rationale captured by the Preamble. Dissolution of the Confederation and establishment of a new federal government was justified:

• to form a more perfect Union
• establish Justice
• insure domestic Tranquility
• provide for the common defence
• promote the general Welfare
• secure the Blessings of Liberty to ourselves and our Posterity

Although these rationales were not of themselves normative, they are reflected in the normative text of the Constitution to which they are part of the preamble. We will consider each of them in turn.

To form a more perfect Union

There is a common belief — it is not quite a myth — that the Founders believed in a right of secession. It seems unlikely that one can believe in a right of revolution and not believe in a right of secession. The question is under what circumstances secession is justified, and whether there is any lawful mechanism for peaceful secession.

Few Americans today would admit to believing that preservation of slavery is a just reason for secession, and the myth that the southern states seceded over some other issue needs to be firmly refuted at every opportunity. Tariffs are sometimes put forward as the real cause for Southern secession, but anyone familiar with the history of the times, or with the nature of the communications that took place between the southern states following Lincoln’s election and inauguration, knows this is patent nonsense. The commissioners that the seceding states sent to wavering States to persuade them to join the Confederacy invariably made the preservation of slavery the centerpiece of their arguments. And this was communications “within the family”, so to speak, not propaganda for foreign consumption. Southern secession in so awful a cause could only be legally justified if there is an unconditional right to secession. Every indication is that the Founders believed otherwise.

Secession was not an invention of the South of 1860, of course. The threat of secession was a political lever used by both northern and southern states to advance their political interests, from the time of the Articles of Confederation to the Civil War. But between the ratification of the Constitution and the crisis of 1860, it was largely an empty threat, and empty largely because of two things: The lack of any mention in the Constitution itself of a process for a state to peacefully secede, and the Preamble.

The Framers sought, first of all, to form a more perfect Union. Curiously, the Articles of Confederation denied an unlimited right of secession, in Article XIII:

[T]he Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.

Of course, this article also seems to undercut the legitimacy of the ratification process for the Constitution of 1787, which did not require unanimity before going into effect. Some legal scholars argue that the Constitution of 1787 could be regarded as a side deal between the ratifying States, permitted by Article VI. This seems a stretch. Likewise, the argument that only alteration needed unanimous consent, and not complete replacement, seems like sophistry. Better to simply acknowledge that so many of the States had violated their obligations under the Articles of Confederation that it was already a dead letter.

But we are digressing. Our point is that the Articles of Confederation denied a right of secession (“the Union shall be perpetual”) and the preamble of the Constitution, with its leading rationale (“To form a more perfect Union”) could not reasonably be regarded as taking a step back from this. In his Notes of Debates in the Federal Convention of 1787, Madison reported that Samuel Johnson spoke for many of the delegates in denying that the states were “so many political societies,” but rather should be viewed “as districts of people composing one political Society.” The Framers spoke in the name of the people of the United States, not in the name of the united States. They meant the Union to be perpetual.

We think of Lincoln’s pungent observation on secessionists:

… the Union, as a family relation, would not be anything like a regular marriage at all, but only as a sort of free-love arrangement—to be maintained on what the sect calls passionate attraction.

In our day of easy divorce, in which not many of our fellow citizens truly respect an oath, it is difficult to appreciate just how trenchant this analogy was. Christianity traditionally regarded marriage as an indissoluble union and divorce as a great scandal (and, to a considerable extent, Catholicism still does); Lincoln asserted, with cause, that the Union was an indissoluble political marriage.

establish Justice

The subsequent elements of the rationale are largely aspirational. They set forth an ideal for good government that most Americans now take for granted. They are meaningful independently of the specific circumstances of the framing of the Constitution.

However, understanding those circumstances help us better understand why the Framers included these elements in the rationale.

The Articles of Confederation provided for no executive and no judiciary at the federal level. Under these circumstances, the Congress of the Confederation  had no meaningful power to establish justice.

This was reflected, for example, in the thorny issue of repayment of debt. The Congress of the Confederation was both unable to repay its own war debts or to prevent the states from canceling private debts under populist pressure. Both were seen as injustices. This led the Framers to give power to the new federal government to establish uniform rules of bankruptcy and bound the federal government to honor existing debts.

ensure domestic Tranquility

This was written by men who almost certainly had Shay’s Rebellion in the back of their minds. Shay and his followers nearly toppled the government of Massachusetts, and they would likely have replaced it with the kind of pure democracy the Framers rightly dreaded. The Framers concluded that all the States had a vested interest in putting down insurrection in any of the States.

provide for the common defence

We have already mentioned the inability of the Congress of the Confederation to maintain garrisons on the strategically vital lines of the Ohio and Mississippi Rivers. Congress was also unable to coordinate a meaningful foreign policy, since large supermajorities were required to authorize treaties, and since the states took it on themselves to determine their own duties on imports.

promote the general Welfare

This alludes to the tendency of each State, under populist pressure, to put its own interests above those of the nation as a whole. A prime example was the tendency of some states to declare their ports duty-free, to gain economic advantage over states that tried to impose punitive duties on Britain, France, or Spain in retaliation for restrictions imposed by those powers on U.S. trade.

secure the Blessings of Liberty to ourselves and our Posterity

This is the final and crowning rationale of the Preamble. The ultimate purpose of the Constitution was to preserve the rights of American citizens.

We emphasize once again the distinction between normative content and rationale. The remainder of the Constitution is almost all normative, with little rationale. The Preamble alone emphasizes rationale, with the normative content restricted to the claim that this Constitution has been duly established and ordained by the American people.  This is entirely fitting in a preamble to a political and legal document of such importance.

Because the rationale is non-normative, the courts have held that the Preamble grants no powers to the federal government that are not spelled out later in the document. Nevertheless, the courts have sometimes relied on the Preamble to give insight into the intent of the Founders when deciding whether to give a broad or narrow interpretation to a clause in the Constitution. For example, the broad understanding of rights usually applied by the courts has been claimed to be based on the Preamble.