The Preamble As Contract? Lipsky's Constitution

"Here, in strictness, the people surrender nothing, and they retain everything, they have no need of particular reservations." That's Alexander Hamilton talking, in Federalist 84. He was explaining why the new federal government was not a behemoth to be feared, but rather a creature of limited responsibilities.

I wonder what Hamilton would say of the federal government today.

The Constitution is simple and elegant. And the Preamble is perhaps one of its most elegant pen strokes. But does it have any real substantive meaning or is it merely exhortation?

I will never forget the Italian immigrant who came to see me more than a decade ago. She believed that a local town official had trampled her right to speak out. She was incensed. I explained the twists and turns of the law to her, and she erupted. "But I read the Constitution. It says 'We the People.' I am one of those people!"

Is she?

In truth, the Constitution is a covenant none of us signed. Distant forebears created a government, and gave it metes and bounds. My ancestors were not in this country when the document was signed. My father, who snuck into this country from Crete, and then forged papers to assume an identity as an American, died an illegal immigrant. I acquired my citizenship by accident of birth. Am I one of the people to whom the Preamble refers?

I am, but that is because as a lawyer I have specifically opted in by oath. I have sworn to uphold the Constitution and laws of the United States. What of folks who have taken no such oath? What are they to make of this document?

The government created centuries ago was a limited government, consisting of enumerated powers. The Government was created to serve limited ends, reserving to ourselves, presumably, the right to change the Government if it failed to meet those ends.

If we think of it as a contract, it binds only insofar as we adopt its provisions. Over the years, the courts have changed the nature of this Constitution by deciding cases about the meaning of sometimes vague and ambiguous clauses. These decisions have typically arisen in response to particular and troubling facts resonating in response to changes brought about by external crisis, the development of new industries and technology and the changing character of our society. The Constitution, like it or not, does live; even if we seek to kill it with conceptions of originalism.

But is the Constitution a contract binding strangers one to another? And, if so, what to make of a nation of some 350 million people few of whom have ever really taken an oath to abide by it? For the overwhelming mass of Americans, the Constitution is no contract at all.

My view of the Constitution is informed largely by the Roman orator Cicerco. He defined a republic, or res publico, as a group of people bound together by common interests and a common conception of right. We have for many a decade been bound together by a common conception of right, and that understanding has been crystallized in our Constitution. The Bill of Rights serves almost as a secular religion, defining either a common sense of the good, or, at a minimum, a boundary beyond which our varying conceptions of goodness cannot go.

But what happens when a nation loses its sense of common interest? Is a plutocracy capable of wearing a republic's mantle? What if the plebes were to reject the norms of the landholding class, the power elite? What if the nation were to splinter into groups no longer sharing common interests because their life chances were so fundamentally different that they inhabited what for all intents and purposes were separate worlds?

We say "We the People," but I wonder, really, what people really count. Do the homeless? Do the elderly no longer able to work and living on fixed incomes and disappearing pensions? Do young mothers unable to support their families? Or the millions who suffer from mental illness?

This morning's New York Times carried a story by Adam Liptak about how recent nominees to the United States Supreme Court rarely surprise those appointing them any longer. The new justices now typically have lengthy track records, having served either as federal government lawyers or federal appellate court clerks. Put another way, the appointees are homogeneous because they all come formed by the same cookie cutter. These nominees have rarely lived the sort of life "We the People" live. They are almost aliens, inhabiting a world of privilege.

The Preamble should have meaning. It should be regarded as contractual in character. Call it an invitation to deal to each new generation. So long as the terms of this compact support the purposes of life, liberty and pursuit of happiness, I suspect most folks would gladly sign on. But what would happen if more and more Americans simply refused to assent? In that case, the Preamble becomes mere rhetoric and a tool of oppressive power.

I prefer the view of the Constitution as a contract. The Bill of Rights serves as a guarantee to each and every minority that there are limits on whay the majority can do. The Preamble speaks in general terms of those limits. In the criminal courts, a defendant is to protected from a mob howling in fear and anger; civil rights cases protect a vulnerable minorities rights to the minimum conditions of decency. My Constitution is profoundly anti-majoritarian.

Hamilton and the founders believe that the Constitution created a government of limited power. How many folks truly believe that any longer? Not long ago, an essay in The New Republic referred to the founding era as anachronistic. If that's true, is the Constitution also time-worn and unworthy of support? With what shall we replace it?

The Preamble reminds that our conception of the state is not organic. Before there was Government, there were people with rights Government is obligated to serve and to protect. A Government that forgets those rights is no Government at all.

Lipsky's Constitution: "We The People"?

There will be talk aplenty about what our Constitution means, even what it is, in the weeks and months to come as debate forms around the nomination of the next justice to the United States Supreme Court. The debate, frankly, is too important to be left to lawyers. But where is an ordinary person to turn for information, much less inspiration, about the Constitution?

I'm reading Seth Lipsky's. The Citizen's Constitution: An Annotated Guide, (Basic Books: New York, 2009). It is a refreshing.

Lipsky is a life-long journalist, having worked at the Wall Street Journal and founded the now defunct New York Sun. His editorials earned him a finalist's berth for the Pulitzer Prize in 1991. He's a keen observer of politics, both national and international, and has been following public affairs for 40 some years. In the preface, he notes that over the years he has actually turned to the Constitution as he tried to make sense of the issues of the day.

This business of turning to the Constitution may not seem remarkable to you. But consider, for a moment, the act in the context of Lipsky's life. He is not trained as a lawyer. Rather, he is a journalist. As his newspapers sought to comment on the meaning of the day's events, he turned to a document he regarded as a compact between he, other similarly situated people, and the government. He assumed that as a person of intelligence, he could discern both the Constitution's meaning, and the limits it placed on Government.

You lawyers out there are smirking as you read. You know it's not that simple. The document doesn't speak, it must be read. And even if it could speak, its speech must still be interpreted. The act of interpretation is a highly creative process, requiring very active and self-conscious commitments to interpretive canons. Thus, the current dichotomy between those who support a "living constitution" and those favoring "originalism" is really just a parlor squabble among lawyers and judges about how best to read a document whose meaning and relevance to our time is often far from apparent. We're all activists now, whether we like it or not. And the activity we engage in is interpretation.

But I like Lipsky's experiment. Can a person of ordinary intelligence make sense of the document? Does the Constitution speak in any meaningful sense to the conflicts of our day?

I am reminded of Senator Sam Ervin during the Watergate hearings. One day, he pulled a battered copy of the Constitution from a jacket pocket and waved it around, exclaiming that he did not see any reference in his Constitution to some high-fallutin' nonsense being peddled by a Government lawyer. It is an image that remains with me almost forty years after the fact.

Sure, Ervin was grandstanding. But why not? The Constitution is written so that it can be published and relied upon by all. We speak now of the law's transparency, and then shroud it in doctrines as opaque as medieval theology. Only lawyers benefit from obscurantism.

So what does Lipsky make of the Preamble? Who are, for example, "We the People?" Does that have meaning today? Did it at the time of the founding?

The joy of an annotated interpretation is in the scholarship that supports it. Lipsky has gone to the Founder's writings, and has parsed terms debated about at the time of the Constitutional Convention. His annotations reflect familiarity with the writings of Federalists and Anti-Federalists, as well as Farrand's Records, and a wide variety of other contemporaneous sources.

Three words into the preamble, and already controversy. "Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristic and soul of a confederation," Patrick Henry noted. Sam Adams, too, was puzzled: "I confess, as I enter the building I stumble at the threshold. I meet with a national government, instead of a federal union of sovereign states."

It's always puzzled me that the convention, called to amend the Articles of Confederation, assumed a mandate it was never given: Wholesale restructuring of the Government. It is as though they were sent to purchase a new saddle, and returned with a team of wild new stallions.

James Madison saw perhaps more clearly. The Preamble, he wrote, "is not an unmeaning flourish. The expressions declares, in a practical manner, the principle of this constitution. It is ordained and established by the people themselves; and we, who give our votes for it, are merely the proxies of our constituents. We sign it as their attorneys, and as to ourselves, we agree to it as individuals."

Perhaps. But it is an odd, odd notion for an attorney to assume responsibility not given by his client. Did the people authorize creation of this document? Not in any literal sense. It took a bitter ratification fight for the Constitution to be adopted two centuries ago.

But tell me, today, what binds us to the commitments of a foregone era? Madison was a brilliant lawyer; there was genius among the founders. But they spoke for a people far different than that which populates our continent today. James Madison did not represent me, or my forebears: My father's family was still in Crete, perhaps dreaming yet of Minotaurs. He hadn't hired an American lawyer to dream for him.

"We the people" is wonderful rhetoric. But the words are an old wine skin that requiring refilling each generation. Will new wine burst the old skin?

So we struggle now to select another new justice for the Supreme Court. It is fair to ask this justice just how he will interpret the Constitution. What canons bind? And to what interests are those canons bound? The Constitution has never been revealed truth speaking somehow outside the limiting pressures of particular places and times. More importantly, if this justice serves, in some sense as Madison fancied himself to be serving, as the people's attorney, aren't we entitled to a role in interviewing him or her for the job?

I want a lawyer I can trust, a lawyer who understands the life I lead, and whose world is not so different than mine that I feel a chill of condescension as we discuss the goals of the representation. I want an ordinary sort of lawyer, schooled in chaos, and accustomed to grief. If a judge is going to pretend to represent the people, he ought to be a people's lawyer.

Next: The rest of the Preamble