By Garrett Epps
“We the people of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.”
The United States Constitution, in its first full draft, began with those words. Would it have made a difference to us, today, if the Preamble announced itself as the voice of the people of existing states, rather than (as it does) of “the people of the United States”?
I’ve spent the last three years reading and rereading the Constitution’s text. While the Preamble is not legally the most significant part of the document, first impressions matter. On Constitution Day, it is worth pausing for a minute to pay tribute to the most famous—and legally least significant—words to come out of the Philadelphia Convention:
“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 phrase “We the People of the United States” is etched deep in the national consciousness — and it isn’t true. The Constitution wasn’t written by “the people.” The “people” took no part in the drafting; indeed, they were not even represented there. The convention had been called by the Congress, a body in which the states, not the people, were represented. The people had no notice that the meeting would write a new constitution in their name. The formal purpose of the meeting was to “propose amendments” to the existing constitution, the Articles of Confederation. When the Convention’s work was done, the delegates instructed “the people” to approve or disapprove. No changes; no amendments. Just a simple “yes” or “no.” Nonetheless, they presumed to speak in the voice of “the people.”
Why? Consider these words: “Goddess, sing the rage of Peleus’ son, Achilles…” This sound like prayer. But in fact, just like “we the people,” they are a deceptive claim of authorship. It is not I, the poet, who brings you the tale of Achilles and Hector, but Calliope herself. In epic poetry, the poet speaks the Goddess’s words; in constitution-making, the drafters speak to us in our own voice.
So successful has the Preamble’s invocation been that the generations that came after came to believe that they gave birth to the Constitution, that it issued from, rather than being all but imposed upon, “the people.” The Preamble has been almost too successful, in fact.
What are the purposes of the Constitution as laid out in the Preamble? Most people cannot recite them by memory. They are: “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.”
“Form, establish, insure, provide, promote, secure” : these are strong verbs that signify governmental power, not restraint. “We the people” are to be bound—into a stronger union. We will be protected against internal disorder—that is, against ourselves—and against foreign enemies. The “defence” to be provided is “common,” general, spread across the country. The Constitution will establish justice; it will promote the “general” welfare; it will secure our liberties. The new government, it would appear, is not the enemy of liberty but its chief agent and protector.
“Limited government” as an idea receives at best an incidental nod; the states are nowhere to be found. “Trade” and “commerce” are not mentioned. The document’s stated aims are wholly public, not private. “We the people” hope for justice, security, and liberty, not for wealth.
Another idea is strikingly absent. “All men are created equal,” the Declaration of Independence had said. The Preamble makes no such claim. Human equality as an explicit concept will not appear in the Constitution until 1868, eight decades after the Federal Convention.
Finally, “we the people … ordain and establish this Constitution for the United States of America.” The two words have different connotations. “Ordination” is sacerdotal; priests and rabbis enter into their sacred functions by way of ordination. To “ordain” a Constitution or a government is more than simply to set it up. “Establishment” referred to churches—more than half of the thirteen states had established churches, official links between God and the State supported by tax funds. The new Constitution is brought to us by a Muse, ordained by the authority of the People, and established at the center of our common life. We can read these words as creating a national religion, one at which we still worship.
In 1950, the poet Charles Olson defined a poem as “energy transferred from where the poet got it … by way of the poem itself to, all the way over to, the reader … a high-energy construct and, at all points, an energy-discharge.” Beyond invoking the Muse, beyond specifying a purpose, the Preamble crackles with that “energy-discharge.” In the beginning, the nation is without form and void. There is darkness; then someone speaks in our voice: Let there be law.
Garrett Epps is Professor of Law at the University of Baltimore Law School. A former staff writer for the Washington Post, he has written for the New York Times, New Republic, The New York Review of Books, and the Atlantic. He is the author of American Epic: Reading the U.S. Constitution. Two of his nonfiction books, Democracy Reborn and To An Unknown God, have been finalists for the American Bar Association’s Silver Gavel Award. One of his two novels, The Shad Treatment, won the Lillian Smith Book Award. He lives in Washington, DC.
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Image credit: Detail of Preamble to Constitution of the United States. Public domain via Wikimedia Commons.