Two “Preambles” for the Preamble of the Constitution of 1787

George Anastaplo

I.

            Two documents, almost a century apart, can serve as instructive “prologues” for the Preamble to the Constitution of 1787. One is the Declaration of Independence of 1776. The other is the Confederate Constitution of 1861.

Thus, there may be seen throughout the Declaration of Independence not only complaints about the British misuse of powers with respect to their Colonies in North America. There may be seen as well a recognition of the powers that governments must routinely have available. Thus, the possibility (if not even the probability) of their occasioned misuse did not mean (for the framers of the Declaration of Independence) that great powers should never be available for salutary use by a government.

Much the same can be said about the thinking of the framers of the Confederate Constitution. Significant departures may be seen there from the Constitution of 1787, the document on which the 1861 document is obviously patterned. In both cases, substantial powers are recognized (often in identical language) for the government of the associated States (at least nine in one instance, at least seven in the other) provided for in 1787 and in 1861, respectively.

II.

            The talk we have become accustomed to hearing from some quarters about severely limiting the powers of government can be rather naïve. This may be suspected about arguments that can sound rigorously principled in restricting various such powers. This is hardly the talk, however, either of thoughtful students or of sound practitioners of politics.

Indeed, it can be difficult to identify responsibly any powers of government that should never be available for use in any circumstances. Rather, extraordinary circumstances may call for extraordinary measures (even a prayerful recourse to torture?). Thus, emergencies are explicitly provided for in the Constitution of 1787, as in the recognition that the writ of habeas corpus may, on rare occasions, have to be suspended (reminding us thereby of the recourse to the strictly-circumscribed dictatorship provided for in the best days of the Roman Republic).

Even so, there may be seen in the Constitution of 1787 an awareness of routine restraints upon government that had come, across several centuries, to be recognized as salutary by the English-speaking peoples. Particularly dramatized in the Declaration of 1776 (as in the debates of that day on both sides of the Atlantic) is the requirement that there should be no taxation without effective representation of those taxed in the legislative body imposing the tax. But it is never questioned that governments can and should spend and hence tax, sometimes quite substantially.

III.

            The 1776 “Preamble” to the Constitution of 1787 can be said to include what was recognized in the concluding lines of the Declaration of Independence. It had been proclaimed there that “these United Colonies” had, upon becoming “Free and Independent States, … full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” The assembly which issued this Declaration had already begun to exercise some of that “full [legislative] Power” claimed in the Declaration, a document grounded in the constitutional heritage of the English-speaking peoples.

It was evident, if the levying of war should have to be undertaken, that the “full Power” of “Independent States” could not be effectively and hence safely exercised on their own by any of the thirteen States recognized in the Declaration of 1776. That is, it was already evident that some of the power needed on the most serious occasions required a grander view (if the effort was to be successful) than whatever was likely to be available from any particular State. No State on its own could be expected to recognize and accomplish what should be hoped for from the combined efforts of the people of the Thirteen States.

It must have been evident as well, in 1776 and during the events of the decade following which generated the Constitutional Convention of 1787, that comprehensive power would be needed by some government for the Union after the armed struggle for Independence had succeeded. Among those powers would be those necessary for an effective “establish[ment] of Commerce.” That is, no one of the thirteen Colonies/States could be depended on for effective social, economic and military policies respectful of the interests either of the other twelve or of the Union, especially when confronting the policies and efforts of the powerful European nations that they would have to deal with, in Peace as well as in War.

IV.

            The Bill of Rights of 1789-1791 restrains the exercise of powers by the various departments (or “branches”) of the General Government established by the Constitution of 1787. These restrictions were anticipated by provisions in the Constitution itself. They include, in the original document, not only the venerable habeas corpus guarantee, but also such restrictions as those relating to the freedom of speech of legislators, to ex post facto measures, to bills of attainder, to treason, and to religious tests.

It could be argued during the 1787-1789 Ratification Campaign, by proponents of the Constitution of 1787 (desperate to secure an immediate ratification), that an explicit Bill of Rights was not needed, that the rights called for to be recognized in such a document were understood to have been long available among the English-speaking peoples on both sides of the Atlantic. This was evident, for example, in the wide-ranging “freedom of speech [and] of the press” routinely drawn on in various States during public discussions of the proposed Constitution. And although the Bill of Rights of 1789-1791 (that is, the first ten amendments to the Constitution of 1787) addressed explicitly only the General Government, it seemed to be generally understood that various of its provisions recognized rights that the thirteen States were also obliged (and even inclined) to respect.

Thus, there is evident again and again in these early constitutional documents the opinion that governments, whether of the Union or of particular States, had to have the broad powers “to do all [those] Acts and Things which Independent States may of right do,” something reinforced by the wideranging Necessary and Proper Clause in the Constitution of 1787.  It is also evident that the States in the Union would be, pursuant to the Constitution, fundamentally subservient to the General Government empowered by all of the People of the United States. This is taken for granted again and again in the Constitution, as in the Article IV recognition that the Government of the United States is obliged to guarantee to every State in the Union “a Republican Form of Government.”

V.

            The Confederate Constitution of 1861 recognized, in effect, how broad the powers are that had been provided in the Constitution of 1787. This is evident in the changes made (in Montgomery, Alabama) throughout the 1861 revision, changes that made much more than theretofore of the status and powers of the individual States in the Confederacy. This shift may be seen again and again in the 1861 document, including even the arrangement which left the constitutional-amendment process completely in the control of the States.

The determined depreciation of the general government of the Confederacy (not of a “Union”) is evident in the 1861 Preamble, where it was insisted that “each State [was] acting in its sovereign and independent character, in order to form a permanent federal government…” Even more revealing perhaps is what was done both in the Preamble and in Article I, Section 8 of the Confederate Constitution (provisions also patterned on the 1787 Constitution), where
promot[ion of] the General Welfare” was deliberately excised. This reflects that significant contraction of the powers of the Confederate Government which is evident throughout the 1861 document.

It was insisted in the 1861 Preamble that “each State [was] acting in its sovereign and independent character,” an insistence that has no counterpart in the 1787 Constitution. Some of the more thoughtful members of the 1787 Convention might have suspected (wherever they might have been by then) that the invocation in the 1861 Preamble of “the favor and guidance of Almighty God” was an instinctive effort by the Secessionists to reduce the risks run by severely limiting in various ways the powers of the Government of the Confederate States. Also instructive, of course, is what was implicitly conceded, by the deliberate 1861 changes, about the considerable extent of the powers recognized by the Constitution of 1787 for the General Government of the United States which had governed the Country since 1789.

VI.

            Thus, the Confederate Constitution seems, at least at first glance, to place far more limitations on the powers of government than does the Constitution of 1787. But these restrictions were ultimately in the service of far more empowerment of State governments than may be seen in the 1787 arrangement. Such empowerment especially meant that no general government of the Confederacy could interfere significantly with any exercise of tyrannical powers by the States of the Confederacy.

Thus, also, it is evident throughout the 1861 Constitution that its development and implementation depended on an intense desire to perpetuate the system of chattel slavery relied upon throughout the Confederacy. Such a reliance meant, in effect, that there were virtually no limits to what those “in authority” could systematically do to other human beings of a different color. Particularly ominous for those who considered the perpetuation of slavery essential for the safety as well as for the prosperity of the slave-holding States had been the election in 1860 of the Presidential candidate (whoever he might have been) of a political party which insisted that there should be no new Slave States in the United States.

Implicit in this insistence was the recognition that the Government of the United States (acting primarily through its Congress) is empowered by the Constitution of 1787 to establish new States. This was anticipated by what the Articles of Confederation Congress did, in the Summer of 1787, in enacting the Northwest Ordinance (an arrangement confirmed thereafter, with modifications, by the First Congress). Should it not be wondered, furthermore what “States’ Rights” can mean when almost three-quarters of our fifty States have been ordained and established by the Congress of the United States?

VII.

            A doctrinaire insistence upon “States Rights” evidently crippled the Government of the Confederacy politically (and hence militarily) from its outset. This limitation may have been reinforced by the perceived need to take precautions throughout the Civil War against slave uprisings on the Home Front. We recall the concluding grievance in the Declaration of Independence, which included a reference to the “domestic Insurrections” (that is, the slave uprisings) promoted by the British in attempting to subjugate their rebellious Colonies (an anticipation by the British of Abraham Lincoln’s Emancipation Proclamation of 1862-1863?).

We can recall as well the deep concern, if not even the panic, aroused by such chance eruptions as John Brown’s hopeless venture in 1859 with two dozen men at Harpers Ferry, Virginia. We can get some “feel” for that reaction throughout the South by also recalling how excessive have been our responses to the September 2001 assaults, by another two dozen men, in New York City and Washington, D.C, in 2001 (assaults which some could liken, somewhat naively, to a Second Pearl Harbor). Even so, such responses can even be accompanied, in some quarters, by an insistence upon the need to limit severely the powers of government in this Country with respect to many other matters (including, of course, taxation).

We can be reminded, by such a crippling insistence, of the Confederate repudiation (at least for their general government) of any duty or power to promote “the general Welfare.” The Confederate approach to these matters, we have noticed, was very much influenced by concerns with respect to the perpetuation of slavery, something that slaveholders evidently believed required considerable local control of events. What, in the current insistence upon an unfettered Individualism (along with “States’ Rights”), is comparable to the enslavement of Southern politicians in the 1860’s by pro-slavery passions?

VIII.

            Of course, it was not only in the slaveholding South that State governments were very much relied upon in the United States. Indeed, it can even seem to us that much (if not most) of citizens’ encounters with “government” in this Country are at the State (including the county and municipal) level. If there were no State establishments in the United States, the General Government would have to create innumerable agencies that would operate extensively at the local level.

But it is obvious that State governments cannot be relied upon either for effective national defense or for adequate responses to worldwide social and economic challenges and opportunities. It may appear at times that even no national government can provide what seems to be needed. Indeed, it may seem on occasion that only an international force can hope to begin to deal with the most pressing challenges of the day.

Yet it may be difficult, it not virtually impossible, for human beings to take seriously worldwide attachments. Indeed, such arguments may be hard, if not impossible, to recognize in a meaningful fashion. In striking contrast here are such documents as the 1215 Magna Charta (with it determined grounding in considerable local interests and experience) and the 1948 Universal Declaration of Human Rights (with its a-political insistence upon wide ranging humanitarian aspirations, with little if any concern about local circumstances and received tradition).

IX.

            The reference, in the Preamble to the Constitution of 1787, to “the Blessings of Liberty” should remind us that thoughtfulness is needed for an effective use of great powers by a People. Is it not tacitly recognized in the 1787 Preamble that exercises of Liberty may sometimes “secure” Curses instead of “Blessings”? The reference there to “our Posterity” (for whom the Blessings of Liberty are to be secured) can suggest that the Liberty that is both possible and beneficial at any particular time may depend on what has been inherited from Forebears who knew both what they were doing and for whom they were doing it.

Thus, it would seem, both thoughtfulness and prudence are called for – with one of these nourishing the understanding and the other guiding action. We can notice here another critical difference between the Preamble of 1787 and the Preamble of 1861 – the invocation, in the latter, of “the favor and guidance of Almighty God.” The men of 1787, on the other hand, might have been tempted (upon considering such a sentiment) to suggest that there would indeed be a need for Divine Guidance of any political confederation that was so imprudent as to insist upon having each part thereof continue to act “in its sovereign and independent character.”

It can also be instructive to notice the uses of the Divine in the Declaration of Independence (that is, by the immediate Forebears of the Framers of 1787). I had occasion to make, a half-century ago, the following suggestions about those 1776 uses (Abraham Lincoln [1999], p. 25, drawing on a 1961 talk):

 

We see in the Declaration’s references to divinity an oblique anticipation of the separation of powers established in the Constitution of 1787. There are four references of this kind (and it is rhetorically appropriate that they should be placed, in pairs, at the beginning and at the end of the document): 1. “the Laws of Nature and of Nature’s God”; 2. “endowed by their Creator”; 3. “appealing to the Supreme Judge of the World”; 4. “with a firm Reliance on the Protection of divine Providence.” The first reference to God, and perhaps the second as well, regarded God as Legislator: it is He Who orders things, ordaining what is to be. He first comes to sight as the lawgiver or lawmaker. (Just as in the Constitution, so in the Declaration, the legislative aspect of government is primary, both in the order of enumeration and in importance.) Next, God is seen as Judge. Finally, He is revealed as Executive, as One Who extends protection, enforcing the laws that have been laid down (with a suggestion as well of the dispensing power of the executive. Thus, the authors of the Declaration of Independence created even the Government of the World in the image of their political institutions. We should further note that the first two references to divinity were inspired by Thomas Jefferson: God is seen and known as reflected in Nature, as something that can be grouped by man’s reason without the aid of revelation. The third and fourth references, on the other hand, which were added on the floor of the Congress to the Jeffersonian draft, come closer to the God of the Bible, the God of revealed religion….

 

The desperate rebels of 1861, sensing perhaps the ultimate vulnerability of their slavery-driven enterprise, had recourse to a prayer in their Preamble, unlike the confident rebels of 1776 who had, throughout their Manifesto, brought the Divine down to earth, so to speak, even concluding (in the pledge of their “sacred Honor”) with a sanctification of their awesome political enterprise.

____________________
These remarks by George Anastaplo (of the law faculty of Loyola University of Chicago) were prepared for a meeting of December 7, 2012 at the Chicago Bar Association. See, on the significance of preambles for Eighteenth Century drafters, William W. Crosskey, Politics and the Constitution (University of Chicago Press, 1953). See, also, George Anastaplo, The Constitution of 1787: A Commentary (John Hopkins University Press, 1989). These remarks should be included in Volume VII (Reflections on Race Relations and the Constitution) in my projected ten-volume Reflections series (the fifth volume of which was published in 2013).

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