Preamble to the Fourth American Constitution

'We the People of the United States, in order to form a government...'

We've argued in these pages that the U.S. has entered a new constitutional order, the nation's fourth.

As I wrote at the start of this series, the United States was born from a crisis of unity and has experienced two crises since at roughly 70-year intervals: the Civil War and the Great Depression. Each one nearly tore us apart, yet each sparked a civic rebirth. After each great rupture, the government was restructured. We’re now in the midst of a fourth crisis of unity, from which is emerging the next agreement about how and for whom our government operates.

Our First Three Constitutions

The first crisis grew from the failure of the Articles of Confederation to unify the states in a way that worked. To correct this, a Constitutional Convention wrote a document — our First Constitution — that would modify the way the states operated together.

Yet the slavery compromise contained in Article I was a flaw that would undo the whole agreement:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and[,] excluding Indians not taxed, three fifths of all other Persons. [emphasis added]

Those “other Persons” were owned African people. The new nation could never agree, when new states were added, on where or if slave ownership would be allowed.

It took the American Civil War to repeal the three-fifths provision of Article II and give Africans and African-Americans their freedom, citizenship, full voting rights and full representation in Congress. This second crisis was settled by the addition of the three Reconstruction Amendments — the Thirteenth, Fourteenth and Fifteenth — which ended slavery, fixed the three-fifths representation problem, added due process requirements on the states as well as the federal government, and prevented abridgment of the right to vote by the states. This was our Second Constitution, since it radically altered key elements of the First.

The third crisis grew from the corruption and dominant power of the rich that rose in the post-Civil War period and produced the Great Depression of the 1930s. The people’s reaction to their sudden and greater impoverishment put Franklin Roosevelt and his New Deal ideas in power. The phrase “New Deal” specifically meant restructuring the economy and restructuring the relationship between the government and its people, both in a radical way. This is from a Roosevelt campaign speech delivered in July 1932:

Throughout the nation men and women, forgotten in the political philosophy of the Government, look to us here for guidance and for more equitable opportunity to share in the distribution of national wealth... I pledge myself to a new deal for the American people. [emphasis added]

These changes were deeply transformative. But unlike the Second Constitution, the New Deal Constitution consisted, not of amendments, but of laws, declarations, agreements and judicial rulings. For example, the Commerce Clause of the original Constitution was not rewritten, but it was nonetheless greatly revised when the Court reinterpreted it to extend federal control to that part of intrastate commerce that “so affect[s] interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.”

That’s quite an expansion of power without changing the text. Taken together, the New Deal provisions had the effect of amendments without being amendments.

What Comprises a Constitution?

I say all this to make clear that a real-world constitution is not just a written document as we think of it in the U.S. A constitution includes how that document is interpreted (interpretations change) as well as government practices that are allowed by wide agreement, regardless of constitutional text or the law.

For example, the right of presidents to torture is today acknowledged by wide and bipartisan agreement (more on that later), despite its being forbidden by criminal law (Section 2340A of Title 18), the written Constitution itself (Eighth Amendment), and international treaties, which are themselves part of “the supreme Law of the Land” per Article VI. The fact that all this is ignored by both parties, past practice, and the people has the effect of constitutional amendment by other means.

If you need help with the concept of a what a constitution actually is, consider the constitution of the United Kingdom:

The constitution of the United Kingdom comprises the written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, no official attempt has been made to codify such arrangements into a single document, thus it is known as an uncodified constitution. This enables the constitution to be easily changed as no provisions are formally entrenched.

or this more general definition:

constitution (n) : The rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the relationship between the individual and the state.

For more, see here.

Our Fourth Constitution: The Preamble

That said, I'd like to start assembling details about our Fourth Constitution. So as not to burden our readers with too much at once, I'll take this task in chunks.

But first, a note: some constitutions are very short-lived, and this one, when it’s fully in place, may be as well. The Constitution of the Fourth Republic of France, for example, lasted only twelve years. Or consider a list of all of the constitutions of France, starting with the Ancien Régime, the pre-Revolutionary monarchy (see here and here). Some constitutions are like fireflies, lit and soon dark.

With that, let's start by noting deviations from our so-called written Constitution — provisions that are no longer in force or whose meanings have changed — starting with the Preamble. (All quotations from the U.S. Constitution are taken from here, since this source contains links from sections that have been later amended.)

The Original Preamble

The original Preamble to the U.S. Constitution says this:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

I want to look at several of these ideas, principles that have been either eliminated or given highly revised interpretations.

Insure Domestic Tranquility

When we consider the phrase “insure domestic Tranquility”, the following context applies:

The inclusion of “insure domestic tranquility” in the Constitution’s Preamble directly responded to the tumultuous period under the Articles of Confederation. The Articles, which preceded the Constitution, created a weak central government with limited authority over the states. This lack of a strong federal presence led to significant internal instability and economic disputes among the states.

“Insure domestic tranquility” speaks to the need and the power to maintain civil order. You may think this uncontroversial, but consider the original goal of that power.

In the context of rebellion cause by economic hardship (for example, Shay’s Rebellion of 1786), the Preamble says, in effect, that it’s important to mitigate unrest among the people by eliminating causes of unrest. To eliminate those causes, the Constitution of 1789 created a strong central government that can manage the national economy in a way that obviates economic uprisings like Shay’s. The context makes that clear, and the Hamiltonian economic order did just that, by protecting industry and the people’s wealth. Domestic tranquility is thus tied to a well-managed national economy.

Today this concept of insuring domestic tranquility has been modified in two ways:

1. The power to maintain order has been greatly increased through widespread, bipartisan-blessed domestic surveillance and control, an extended definition that has de facto repealed most of the text of the Fourth through Eighth Amendments.

2. Under the Fourth Constitution, the federal government has moved from mitigating of the causes of unrest to promoting those causes, mainly but not exclusively by enforcing an economic order that destroys the domestic tranquility, the happiness, of most of its people.

Neither of these changes are recent or Trump-specific. Each started in the 19th century with a) the rise of extreme wealth inequality, and b) the rise of thuggish, brutal and often murderous policing designed to keep unions, the poor, and wage-slave immigrants in line. Thuggish policing, in fact, goes back even further, to the slave patrols that put down uprisings and escapes by enslaved Africans.

It can fairly be said, therefore, that the original meaning of “insure domestic Tranquility” has been revised as follows: establish enough government control to put down rebellion from people whose misery the government actively creates.

Provide for the Common Defense, Promote the General Welfare

I'll skip discussing “provide for the common defense” since that's still in force. The modern meaning, though, is to make sure the government keeps Lockheed and Raytheon rolling in as much cash as it can. Defense — real national protection — seems an afterthought to profit, as we’ll see later.

The phrase “promote the general Welfare” must be revised to reflect the government’s real goals. As we’ve seen, the modern rule is to promote the welfare of the few at the expense of the many.

The counter-revolutionary response to the New Deal Constitution started immediately, with the failed 1933 Plot to depose Franklin Roosevelt and establish a dictatorship by the titans of wealth. This counter-revolt picked up real steam in the 1980s with the so-called Reagan Revolution (actually a counter-rebellion) that put the wealthy again back in control.

Thus the welfare today’s government promotes isn’t general; it’s that of the already rich, our current elites, our moneyed aristocrats. Is this hyperbole? Decide for yourself, but do decide based on facts. Consider the Epstein case, for example, or the case of elite-protected Israeli pedophiles. Consider the right of corporations to kill, or the protected immunity of people like Jon Corzine.

Establish Justice; Ensure the Blessings of Liberty

With loss of economic freedom, economic “reach,” with the growth of the Surveillance State, a regime in which any complainer could be branded a “terrorist” — a Biden example is here — with all of that, there is no justice, no blessings of liberty, except for the few. So we need to revise these phrases to reflect what we do. True liberty and justice no longer apply to the many.

Preamble to the Fourth American Constitution

A constitutional preamble is important. It defines the kind of government it seeks to create and thus contains important ideas and restrictions. In France, for example, the Preamble to the Constitution of the Fifth Republic references the Revolutionary era Declaration of the Rights of Man and the Citizen and declares up front that France is a secular country.

With this in mind, the Preamble to our Fourth Constitution reads roughly as follows:

We the People of the United States, in order to form a government with preemptive control, establish a justice regime that protects our elites, provide enough defense so elites may profit, promote the welfare of the already rich, and secure the blessings of liberty on wealth and its friends, do ordain and establish this Constitution for the United States of America.

And it’s off to the races we go.