Almost immediately, James Madison had second thoughts about the new Constitution’s Preamble. The resonant phrase, “We the People,” just didn’t quite capture the spirit of popular sovereignty and individual liberty that Madison envisioned for the fresh nation. And so, on June 8, 1789, while introducing to the First Congress those amendments that would become the Bill of Rights, the “father of the American Constitution” requested a preambulatory do-over. “Prefixed to the Constitution,” he announced, should be a “declaration that all power is originally vested in, and consequently derived from, the people. That government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty . . . and that the people have an indubitable, unalienable, and indefeasible right to reform or change their government . . . ” It was, at once, a nod to the Declaration of Independence, a preference for Lockean social contract theory, and an admission of the flimsiness of the extant language. The problem for Madison? His fellow congressmen weren’t buying it. They liked their constitutional Preamble just as it was, thank you very much.
But Madison was on to something. America’s soaring constitutional introduction might have been outdated then and surely is now. Even if not the words exactly, we should take heed of Madison’s regret. The Preamble to the 1787 Constitution is a missed opportunity, a relic of a discriminatory and, for many, a horrific and tragic past.
Progressive constitutionalists like those who fashioned the new text unveiled in this journal recognize two contemporary faults of America’s Preamble: the omission of any mention of equality and the lack of historical self-consciousness. The first is easy to see. The Preamble acknowledges the importance of justice, tranquility, and liberty, but nowhere does it place the same value on equality. Equality is not among those fundamental principles that will deliver “a more perfect union.”
The second omission is a bit less obvious. Contemporary constitution-makers around the world now choose Preambles as the primary site to confess a dark past. South Africa’s constitutional preface is the most familiar. It begins, “We, the People of South Africa, Recognize the Injustices of our past; [and] Honour those who have suffered for justice and freedom in our land . . . ” The Preamble then concludes, “We therefore . . . adopt this Constitution . . . so as to Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights . . . ” South Africa’s Preamble is not unique. Indeed, most preambles now describe specific, indigenous stories of oppression, coercion, and tyranny as a tell for what’s to come in the body of the text and, more critically, for how the structural elements of a constitution are designed and organized precisely to remedy a sinister legacy. The nations of the world are taking notice, through their constitutional preambles, of their unspeakable pasts. America’s Preamble does not.
And yet the proposed constitutional draft in these pages does. It recognizes that America’s ongoing project to attain meaningful equality—especially racial equality—is an essential ingredient for national progress, a critical feature of “a more perfect union.” The draft Preamble further acknowledges this country’s history of apartheid, though not as much as I would have liked. It speaks of “promot[ing] justice, past and present” and the ambition “to find unity in our diversity and make common cause as one Nation . . . ” Noble goals to be sure.
Still, the draft Preamble doesn’t explicitly reckon with the horror of African-American enslavement or the shame of America’s injustice against Indigenous peoples. It dances around those twin infamies with vague language and lofty hopes. A missed opportunity, I would say.
Despite some disappointment that our draft Preamble did not go far enough, I endorsed this version. And yet a few fellow delegates joined me in advocating for the inclusion of language that is more targeted, more blunt even:
We the People of the United States, in Order to form a more perfect Union, establish Justice and acknowledge a history of injustice, insure domestic Tranquility, provide for the common defense, remedy the wounds of systemic prejudice, banish other institutional forms of discrimination, erase slavery’s persistent legacy, reverse the destruction of indigenous nations and Native peoples, promote the general welfare, endeavor to achieve greater equity, and secure the blessings of liberty to all, do ordain and establish this Constitution for the United States of America.
I still believe this Preamble captures better the recognition of our shameful past and the prospect of an aspiring future.
Madison’s failed attempt to modify the opening words of the Constitution is an important, even if largely forgotten, lesson in American constitutional development. Reform opportunities don’t come to the constitutional framer all that often. But should we ever find ourselves in a position where constitutional modernization is truly possible, we would be wise not to pass on the Preamble yet again.