What if I told you that hidden in the Constitution is a little-known provision that contains a gateway of sorts to a natural law, common-good inspired jurisprudence? And that this little treasure is hiding in plain sight, inexplicably ignored by jurists for decades? Well, there is such a section, and its contained in the opening lines of our founding document. The Preamble to the United States Constitution enumerates six purposes for which the federal government was formed. They are (1) to form a more perfect Union [among the states]; (2) to establish justice; (3) to ensure domestic tranquility; (4) to provide for the common defense; (5) to promote the general welfare; and (6) to secure the blessings of liberty.[1]
Now, in order for the Preamble to serve as the bastion of classical jurisprudence, as I claim that it does, it needs to be read with Aristotle. In Book III of the Politics, Aristotle describes the characteristics that a city needs in order to be complete, and many of them overlap with the purposes stated in the Preamble. They include proximity of the population, methods for redressing wrongs between citizens, a military alliance against foreigners, and commercial exchange between inhabitants.[2] However, Aristotle is emphatic in stating that these characteristics are not sufficient to constitute a complete city: “It is not the case however that people come together for sake of life alone but rather for the sake of living well.”[3] For Aristotle, to truly form a city[4], the population must join together for the purpose of living well, which is to live virtuously by performing noble deeds, engaging in friendship and cultured pursuits.[5] All else is for the sake of this end.[6]
If we place the purposes enumerated in the Preamble alongside the characteristics of Aristotle’s city, we see there is much agreement. However, there is difficulty in ascertaining whether any of the purposes in the Preamble meet Aristotle’s requirement that collective virtue be the city’s goal. The table below helps visualize how the elements of the Preamble map onto the elements of the Aristotelian city.
| Preamble | Aristotle |
| Clean Fit | |
| To form a more perfect union | Shared life and proximity |
| To establish justice | Methods to prevent/redress wrongs |
| To ensure domestic tranquility | Methods to prevent/redress wrongs |
| To provide for the common defense | Military alliance between citizens |
| Ambiguous Fit | |
| To promote the general welfare | Collective virtue? Material wellbeing? Friendship? |
| To secure the blessings of liberty? | Collective virtue? Material wellbeing? Individual autonomy? |
Do either of the two ambiguous purposes, “to promote the general welfare” or “to the secure blessings of liberty”, map onto Aristotle’s requirement that a political community be aimed at virtue, friendship, and a collective life well-lived? My aim is to show that they can be reconciled, but only with a classical interpretation of what “liberty” means, and what its concomitant “blessings” are. First, we must show that the Preamble’s stated purpose of “secur[ing] the blessings of liberty” can be correlated or even made synonymous with the attainment of virtue. Second, we must show that the “promot[ion] of the general welfare” can indicate the promotion of collective virtue. Third, I will explain why maintaining this interpretation of the Preamble will inevitably depend on situating it within the classical legal tradition.
I. Securing the Blessings of Liberty
The Declaration of Independence states that men have certain inalienable rights, and among them are life, liberty, and the pursuit of happiness. When the Founders gathered together to draft the Constitution, they did so because their previous attempt at forming a government under the Articles of Confederation had proved “insufficient to the general happiness.”[7] Now, to aim at happiness in the Aristotelian sense is precisely to aim at virtue. The two are coterminous. This view of happiness was not foreign to the founding generation. Blackstone, in the introductory chapter to his Commentaries on the Laws of England, states that man finds his happiness precisely in the accomplishment of the natural law.[8]
So how do we connect this view of happiness, happiness being an express goal in the Declaration and an implicit goal in the Constitution, to the phrase “secure the blessings of liberty”? We do so by recognizing that happiness is itself the blessing of liberty. But since happiness is attained only through virtue, then the liberty that is its antecedent must be a liberty that is ordered towards virtuous activity. There is ample evidence amongst the Founders that this is precisely the definition of liberty to which they subscribed. James Wilson, signer of both the Declaration and the Constitution, stated in one of his famous lectures expounding the Constitution that “[w]ithout law, liberty [] loses its nature and its name, and becomes licentiousness.”[9] Wilson held that liberty without law is no longer liberty at all, since it loses its nature. In other words, to use liberty poorly is precisely to destroy its nature so that we can no longer properly call it liberty. This means that liberty, of its essence, must be intrinsically tied to virtuous activity specified by the law. This is reinforced by Wilson’s belief that “[o]n the two foundations of the law of nature, and the law of revelation, all human laws depend; that is to say, no human laws should be suffered to contradict these.”[10] For Wilson, the laws that liberty is called to obey are laws that accord with reason, mirror the natural law, and produce virtue in the one subject to them.
II. Promoting the General Welfare
Next, we must show that the virtue secured as a “blessing of liberty” is a virtue that accords with “the general welfare”, meaning that it is a collective virtue. In Federalist 1, Alexander Hamilton explains the condition that must be met if the Constitution that the Founders devised is to be a success: “Happy will it be if our choice [of government] should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good.”[11] Here Hamilton equates the true and proper interests of the Founders to be those that connect with the public good. He states in the same essay that many will be dissatisfied at first with the choice of government since it will interfere with purely private interests as they were presently arranged at the time of his writing before the ratification of the Constitution. But he goes on, “I own to you, that, after having given it an attentive consideration, I am clearly of opinion, it is your interest to adopt [the Constitution]. . . this is the safest course for your liberty, your dignity, and your happiness.”[12] By equating the adoption of the Constitution with (1) the public good; and (2) the safest course toward liberty and happiness, we can see that Hamilton envisioned the Constitution as a vehicle for collective liberty and collective happiness, which if interpreted in light of our preceding arguments, bears a very close resemblance to collective virtue.
It is clear that the Preamble can be profitably read under an Aristotelian light. However, we must acknowledge that this is not the only possible reading, especially if other more denuded definitions of liberty are taken as primary. Here, I have only attempted to show the definitions and suppositions that must be maintained in order to maintain a properly Aristotelian view of the Preamble; I have not attempted to show that it is the only possible reading. However, for the “natural lawyer”, this type of analysis is sufficient, because that lawyer does not place all hope in the bare text. Rather, the lawyer interprets that text in light of other unwritten, yet binding, background principles which, ironically, are drawn from the tradition that the Preamble points to and situates itself in. This nuanced distinction of the Preamble “situating” itself within a preexisting tradition, as opposed to positing or “incorporating” the tradition, must be further examined.
III. Situating the Preamble in the Classical Legal Tradition
While the foregoing analysis makes a plausible case that the Preamble aligns with an Aristotelian conception of the common good, we know that the interpretation of any text is inextricably bound up with the moral precepts and background principles of the interpreter. Accordingly, the Preamble could be read in ways that do not accord with the conception of the common good and collective virtue that I argue our Framers had in mind. For this reason, the Preamble should not be read as a complete exposition of the common good, but rather as something that points beyond itself. The Preamble provides its immense value precisely by pointing to the already binding sources of law that preexist it, namely, the law of nature, the law of nations, and the venerable common law tradition. Paradoxically, it is these preexisting sources of law against which we measure and justify the Preamble. This is a subtle point that requires some unpacking, and the legal scholar Josh Hammer’s work on the Preamble provides some thoughts with which to dialogue on this point.
Hammer has been the scholar most vigorously defending the Preamble as an express incorporation of common good jurisprudence in recent times, most notably in his essay Common Good Originalism: Our Tradition and Our Path Forward.[13] Hammer points out “that at no time in the Preamble is individual liberty put forth as an intrinsic substantive end. . . It seems, rather, that the Founders who drafted the Constitution viewed the protection of natural rights and the expansion of individual liberty less as intrinsic ends, and more as a ‘means by which citizens could pursue a common good.’”[14] This is, of course, precisely the argument I have sought to advance thus far. But there is a further point regarding the Preamble that Hammer makes in a follow-up essay which needs refining in order to draw out the full strength of what the Preamble means for our constitutional order.
Hammer holds that the telos of our constitutional order is “naturally and most explicitly captured by the very Preamble of the Constitution”[15] and that “the substantive legitimacy [emphasis added] of that telos is what makes the entire edifice worth respecting.”[16] Hammer takes the Preamble as incorporating a common good tradition that is in continuity with the common law, and by this explicit incorporation it makes the common good tradition binding on our jurisprudence as a form of originalism. But this is where we must make explicit something that Hammer perhaps holds only implicitly, which is that the “substantive legitimacy” of the telos must itself be judged by an already binding law and authoritative measure. This already binding law is none other than the natural law, which does not gain binding force in our constitutional order by being incorporated through the Preamble, but rather binds every constitutional order ex proprio vigore [of its own force]. In other words, the Preamble, properly understood, does not posit or incorporate the natural law into our Constitution as if it had the authority to choose otherwise, but rather acknowledges it as an already binding source of law, and indeed as the law that judges the human enactments that sit below it in the hierarchy of law.[17]
This way of viewing the Preamble is better understood as situating our Constitution within an already existing tradition of common good jurisprudence and government. The distinction is subtle but important for the following reason: if the Preamble were simply positing the telos of our constitutional order on its own authority, it would leave us with not much more to rely on than the text of the Preamble itself. And certainly, we could use the full panoply of originalist interpretive tools to derive the meaning of the Preamble. But even so, the Preamble is only one paragraph, and only so much common good jurisprudence can be packed into the six enumerated purposes.
On the contrary, understanding the Preamble as the Founders’ way of situating the Constitution within a preexisting tradition opens up the full toolbox of jurisprudential resources that are latent within the classical legal tradition. These include the natural law, the common law, the law of nations, and accumulated wisdom of all the classical jurists from the English and continental traditions. This is to say nothing of the scholastics and philosophers who also deserve their space in the annals of our jurisprudence. With all this material at our disposal, the revival of the classical legal tradition becomes simply a matter of effort, not a lack of resources!
I will give the last word to Supreme Court Justice Henry Baldwin to drive the point home: “There are certain great and fundamental principles of justice which, in the constitution of nature, lie at the foundation and make part of civil law, independent of express adoption or enactment.”[18] We should glory in that the Preamble is an affirmation of precisely that fact.
[1] “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.”
[2] Aristotle, The Politics of Aristotle 92-93 (ed. Peter L. Phillips Simpson, University of North Carolina Press 1997).
[3] Id. at 92.
[4] The Politics is an extended reflection on the politics of the city (polis). Our modern political communities are much larger and much different in every way than the ancient Greek cities and cannot serve as perfect analogues for them. But with this qualification in mind, we can still draw out the lessons from Aristotle’s reflections and attempt to apply them to our modern situation.
[5] Aristotle, at 93-94.
[6] Id. at 94. “The end, then, of the city is living well, but these other things are for the sake of the end, and a city is the community of families and villages in a complete and self-sufficient life, which, we say, is living happily and nobly.”
[7] Max Farrand, The Records of the Federal Convention of 1787 Vol. II 137-38 (Yale University Press 1911).
[8] Blackstone, Commentaries on the Laws of England, Of the Nature of Laws in General 40 (Liberty Fund 2011). “For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter.”
[9] James Wilson, Lectures on Law, Introductory Lecture. Of The Study Of The Law In The United States 326 (Liberty Fund 2011, online version), https://oll-resources.s3.us-east-2.amazonaws.com/oll3/store/titles/2072/Wilson_4140_EBk_v6.0.pdf
[10] Blackstone, at 42.
[11] Alexander Hamilton, The Federalist No. 1 (Liberty Fund 2001).
[12] Id. at 3.
[13] Josh Hammer, Common Good Originalism: Our Tradition and Our Path Forward, 44 Harv. J.L. & Pub. Pol’y 917 (2021).
[14] Id. at 928 (quoting Tony Woodlief, Against the Libertarian-Pajama-Boy Consensus, AM. MINDSET (Nov. 17, 2020).
[15] Josh Hammer, Common Good Constitutionalism and Common Good Originalism: A Convergence?, 46 Harv. J. L. & Pub. Pol’y 1197, 1202 (2023).
[16] Id. at 1203.
[17] See Thomas Aquinas, Treatise on Law, S.Th. I-II Q. 90-98; see also Judge Paul Matey, “Indispensably Obligatory”: Natural Law and the American Legal Tradition, 46 Harv. J.L. & Pub. Pol’y.(2023)
[18] United States v. Holmes, 26 F.Cas. 360, 368 (C.C.E.D. Pa. 1842).
