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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.

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

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.