As an academic, I have worked in various fields, but my dominant passion has been the libertarian pursuit of free markets and freedom under the law. In recent years, I have focused mainly on constitutional originalism. At the University of San Diego, I am the Director of the Center for the Study of Constitutionalism and have a book coming out next year from Harvard, Originalism and the Good Constitution (co-authored with John McGinnis), which presents a new defense of originalism.
In my last post, I argued that “We the People of the United States” is best understood as referring to a single people consisting of separate states. It is not a single people in a single undifferentiated nation like France, but instead is a country that consists of individual states that are united together.
This interpretation of the preamble views it as adopting an intermediate view between the nationalist view of a single people in an undifferentiated nation and the states rights view of multiple peoples in multiple states.
If the preamble adopts an intermediate view, does it fit with the remainder of the Constitution and what specifically is that view? The intermediate view of the preamble accords with the analysis of the Constitution adopted by James Madison in Federalist 39. In that number, Madison was responding to critics who argued that the Constitution was a national document and should have been a federal one. Madison wrote:
In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.
After analyzing the Constitution as to each of these aspects, Madison concludes:
The proposed Constitution, therefore is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.
(For example, Madison argued that the foundation of the Constitution is federal, not national, because the Constitution was adopted individually by the people of the separate states.)
Thus, according to Madison, the Constitution does not fit into the traditional categories of either national or federal. Instead, it is a new, mixed form of government.
Under my analysis of the preamble, the preamble accords with Madison’s view of the Constitution as a mixture of national and federal features. This view of the preamble then gains support from its congruence with the remainder of the Constitution. And it is no surprise that the preamble and the other constitutional provisions would both have this mixture, since they were produced by a convention that had to compromise on these matters. The claims of nationalists and states rights theorists are therefore problematic – they ignore the necessary compromises that led to a middle path.