One of the key arguments made by constitutional nationalists is that the Constitution provides that “We the People of the United States . . . do ordain and establish this Constitution.” The idea is that a single people throughout the country as a whole established the Constitution and therefore sovereignty resides at the national level in that people.
Moreover, this national sovereignty negates any inferences that might otherwise follow from the idea that the Constitution consists of a compact of states. While this is certainly one interpretation of this language, it is certainly not the only one. And here I want to suggest an intermediate understanding – one that is in between national and states rights sovereignty.
We the People of the United States has two concepts in it: (1) the People and (2) the United States. Each of those ideas has two possible interpretations. The People might refer either to a single people of the nation or to the separate peoples of the different states. Similarly, the United States might refer to a single national country – as France does – or it might refer to a country that consists of multiple states. In the latter case, the meaning of the United States would be similar to the meaning of United Nations – an organization that consists of multiple different nations.
The nationalist view works best if both of these concepts have the nationalist interpretation – if it is one people and a single national country. The states right view works best if both of these concepts have the compact between states interpretation – if it is multiple peoples and a country consisting of multiple states.
While it is possible to view both concepts in either way, I believe that the stronger interpretation of people is the national view and the stronger interpretation of the country is the states view.
We the People of the United States is best understood as referring to a single people. After all, if the Framers had intended for the Constitution to reflect the actions of multiple peoples, it could have easily provided “We the Peoples of the United States.” But it does not say that. The better reading is that it establishes a single people. Also supporting this conclusion is the Tenth Amendment, which says that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The United States, however, is best understood as referring to a country consisting of multiple states. The Constitution uses the term as a plural noun. The Constitution provides that “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” This suggests that the United States was referring to a group of individual states that were united together.
It is sometimes said that it matters that the Constitution used the term the United States rather than listing the 13 states in the way that the Articles of Confederation did. An early draft of the Constitution, produced by the Committee of Detail, provided “We the people of the States of New Hampshire, Massachusetts . . . do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.”
While this language was changed, it is likely that it was not changed for a substantive reason. Instead, listing the individual states would have been a problem if some of the original 13 did not ratify (as was the case initially with both North Carolina and Rhode Island). Under the plural understanding of the United States, We the People of the United States pretty much means the same thing as “We the People of the States of New Hampshire, Massachusetts, etc.” In both cases, there is a single people consisting of individual states that are united together.
THE MADISONIAN VIEW
“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.
NOTE: This post is a combination of two posts, originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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