The Preamble As Contract? Lipsky's Constitution
"Here, in strictness, the people surrender nothing, and they retain everything, they have no need of particular reservations." That's Alexander Hamilton talking, in Federalist 84. He was explaining why the new federal government was not a behemoth to be feared, but rather a creature of limited responsibilities.
I wonder what Hamilton would say of the federal government today.
The Constitution is simple and elegant. And the Preamble is perhaps one of its most elegant pen strokes. But does it have any real substantive meaning or is it merely exhortation?
I will never forget the Italian immigrant who came to see me more than a decade ago. She believed that a local town official had trampled her right to speak out. She was incensed. I explained the twists and turns of the law to her, and she erupted. "But I read the Constitution. It says 'We the People.' I am one of those people!"
In truth, the Constitution is a covenant none of us signed. Distant forebears created a government, and gave it metes and bounds. My ancestors were not in this country when the document was signed. My father, who snuck into this country from Crete, and then forged papers to assume an identity as an American, died an illegal immigrant. I acquired my citizenship by accident of birth. Am I one of the people to whom the Preamble refers?
I am, but that is because as a lawyer I have specifically opted in by oath. I have sworn to uphold the Constitution and laws of the United States. What of folks who have taken no such oath? What are they to make of this document?
The government created centuries ago was a limited government, consisting of enumerated powers. The Government was created to serve limited ends, reserving to ourselves, presumably, the right to change the Government if it failed to meet those ends.
If we think of it as a contract, it binds only insofar as we adopt its provisions. Over the years, the courts have changed the nature of this Constitution by deciding cases about the meaning of sometimes vague and ambiguous clauses. These decisions have typically arisen in response to particular and troubling facts resonating in response to changes brought about by external crisis, the development of new industries and technology and the changing character of our society. The Constitution, like it or not, does live; even if we seek to kill it with conceptions of originalism.
But is the Constitution a contract binding strangers one to another? And, if so, what to make of a nation of some 350 million people few of whom have ever really taken an oath to abide by it? For the overwhelming mass of Americans, the Constitution is no contract at all.
My view of the Constitution is informed largely by the Roman orator Cicerco. He defined a republic, or res publico, as a group of people bound together by common interests and a common conception of right. We have for many a decade been bound together by a common conception of right, and that understanding has been crystallized in our Constitution. The Bill of Rights serves almost as a secular religion, defining either a common sense of the good, or, at a minimum, a boundary beyond which our varying conceptions of goodness cannot go.
But what happens when a nation loses its sense of common interest? Is a plutocracy capable of wearing a republic's mantle? What if the plebes were to reject the norms of the landholding class, the power elite? What if the nation were to splinter into groups no longer sharing common interests because their life chances were so fundamentally different that they inhabited what for all intents and purposes were separate worlds?
We say "We the People," but I wonder, really, what people really count. Do the homeless? Do the elderly no longer able to work and living on fixed incomes and disappearing pensions? Do young mothers unable to support their families? Or the millions who suffer from mental illness?
This morning's New York Times carried a story by Adam Liptak about how recent nominees to the United States Supreme Court rarely surprise those appointing them any longer. The new justices now typically have lengthy track records, having served either as federal government lawyers or federal appellate court clerks. Put another way, the appointees are homogeneous because they all come formed by the same cookie cutter. These nominees have rarely lived the sort of life "We the People" live. They are almost aliens, inhabiting a world of privilege.
The Preamble should have meaning. It should be regarded as contractual in character. Call it an invitation to deal to each new generation. So long as the terms of this compact support the purposes of life, liberty and pursuit of happiness, I suspect most folks would gladly sign on. But what would happen if more and more Americans simply refused to assent? In that case, the Preamble becomes mere rhetoric and a tool of oppressive power.
I prefer the view of the Constitution as a contract. The Bill of Rights serves as a guarantee to each and every minority that there are limits on whay the majority can do. The Preamble speaks in general terms of those limits. In the criminal courts, a defendant is to protected from a mob howling in fear and anger; civil rights cases protect a vulnerable minorities rights to the minimum conditions of decency. My Constitution is profoundly anti-majoritarian.
Hamilton and the founders believe that the Constitution created a government of limited power. How many folks truly believe that any longer? Not long ago, an essay in The New Republic referred to the founding era as anachronistic. If that's true, is the Constitution also time-worn and unworthy of support? With what shall we replace it?
The Preamble reminds that our conception of the state is not organic. Before there was Government, there were people with rights Government is obligated to serve and to protect. A Government that forgets those rights is no Government at all.