On a People That Made Itself

1. The puzzle

I want to begin with something quite simple, which is the first three words of the Constitution of the United States. “We the People of the United States, in Order to form a more perfect Union ... do ordain and establish this Constitution.” Now notice what is being said. There is a “we,” and the “we” is doing something, and the thing it is doing is establishing the United States. But the “we” is the People of the United States. So the sentence is spoken by a thing that, on the sentence’s own account, does not yet exist until the sentence has been spoken. It is not that the sentence is false. It is that it is the kind of sentence that cannot be true, like “I am my own father.”

People will say this is a quibble about a preamble, and preambles do not make law. Quite so. But a preamble is where a document says what it is, and if what it says it is cannot be the case, then either it is something else, which we had better find out, or it is nothing, which would be worse. I shall argue that it is something else, and that the American difficulty is that the document is forbidden to say what.

2. What a state is

It is important first to be clear about what sort of thing we are talking about when we say “the United States,” because a great deal of nonsense comes from treating it as a large person. It is not a person. It is not even a thing in the way a dog is a thing. The canonists worked this out in the thirteenth century, when Innocent IV asked whether a corporation could be excommunicated and answered that it could not, because it had no soul: a universitas is a persona ficta, a nomen iuris, a name the law gives to a set of relations so that the relations can be dealt with. Aquinas says the same thing in a different idiom. A city or an army is a whole, but it is a unity of order, not a substance; its parts keep their own operations, and what the whole “does” is what its ordered members do. Augustine, before either of them, defined a people as a multitude of rational beings united by common agreement on the objects of their love. In every case the state is a name for an ordering of persons, and the persons are prior.

This matters because it tells us what kind of question “where does the state’s authority come from?” is. It is not a question about where a thing came from, like asking who built the bridge. It is a question about where an obligation comes from, which is to say a question about what makes it the case that these persons owe something to that ordering. And an obligation is not the kind of thing that can be its own source. If I owe you money, I owe it because of something, a loan, a promise, a wrong done, and the something is not itself the owing.

3. Three answers

Historically there have been three answers, and it is worth having them side by side.

The first is that authority comes from God to the ruler, directly. This is the divine right of kings, James I’s doctrine, and it is often supposed to be the Catholic one. It is not. Suárez wrote his Defensio fidei in 1613 precisely against it, and James had the book burned, which is about as clear a sign of disagreement as a theologian can hope for.

The second is that authority comes from the people, and from nowhere else. This is Rousseau and Sieyès: the nation is the source of all authority and is itself subject to none; constituent power is prior to any constitution and is bound by nothing. It is the doctrine the French wrote into the Declaration of 1789 (“the principle of all sovereignty resides essentially in the Nation”) and the Mexicans into their 1917 text with admirable frankness (“sovereignty resides essentially and originally in the people”). Note the word “originally.” It means the people is its own origin.

The third is the Catholic answer, which is Aquinas’s and Suárez’s and Bellarmine’s, and which Leo XIII restated in Immortale Dei. Authority is from God, because there is no other place for an obligation to come from; but it is from God in the community, by the natural law, and not in any ruler; and the community’s free acts designate who shall hold it and in what form. The people, on this view, genuinely do something. They determine. They do not create. The constitution they write is what Aquinas calls a determinatio: the giving of particular shape to an authority that was already there to be shaped.

Now the thing to see is that the second and third answers can be written in almost the same words, and the American text is a case of exactly that. “We the People do ordain” can be read as Sieyès, in which case the people are their own origin and the sentence is circular; or it can be read as Suárez, in which case the people are a community already possessed of authority under God, giving it a form, and the sentence is merely elliptical. Everything turns on which.

4. Two American readings

The United States has both readings in its founding documents, and that is its peculiarity. The Declaration of 1776 is unambiguously the third answer. Men are “endowed by their Creator” with rights, governments are instituted “to secure these rights,” and the people’s consent is the ground of a government’s just powers, not of the rights themselves. There is a source outside the people, the people receive from it, and the government is their determination. That is Suárez in Jefferson’s prose, and it is not an accident; the Declaration’s phrases came through Locke from the scholastic natural-law tradition, and Bellarmine is in Filmer’s footnotes being argued against.

The Constitution of 1787 names no source. It names an agent, “We the People,” and an act, “ordain and establish,” and it is silent on where the agent got the power to perform the act. Read on its own, it is the second answer. Read as the continuation of 1776, it is the third. The document itself cannot tell you which, because it does not mention 1776.

Americans have fought over this in those terms, though not always knowing it. Lincoln dated the nation from 1776, “four score and seven years,” and in a private fragment called the Declaration an apple of gold and the Constitution the picture of silver, “made not to conceal or destroy the apple, but to adorn and preserve it.” That is the third answer, with the ordering stated: the frame is for the fruit. Calhoun dated the nation from 1787 and read the Constitution as a compact among sovereign peoples, which is the second answer with the sovereignty moved down a level. Hamilton, in Federalist 84, opposed a Bill of Rights on the ground that enumerating rights in the document would lead people to think the document was their source. He lost, and he was right about what would happen.

5. What the jurists admit

It might be said that all this is theology, and that the lawyers have a perfectly good account of constitutional authority that does not need God or Suárez. I want to suggest that the lawyers’ own best account is a confession.

Hobbes is the frankest. The commonwealth, he says, is “that great Leviathan, that mortal god,” an artificial man, and its unity consists not in the multitude but in the one who represents them. The people are made one person by their representer. That is to say: Hobbes admits that the “we” does not exist before the act, and locates the act in the sovereign rather than the people, which is honest and also exactly the circle, with the direction reversed.

Kelsen is the most rigorous. The validity of every norm in a legal order comes from a higher norm, up to the constitution; and the constitution’s validity comes from the Grundnorm, the basic norm, which is not posited by anybody but must be presupposed if the order is to be valid at all. Late in life, having read Vaihinger, Kelsen said plainly that the basic norm is a fiction, an “as if.” The pure theory of law is the formal admission that a self-founded order needs a pretended first cause, and that the jurist must pretend it. Schmitt, who disliked Kelsen, said the rest: all the significant concepts of the modern theory of the state are secularised theological concepts, and the sovereign who decides the exception is the miracle in juridical dress.

So the lawyers do not have a way round. They have the same choice, and they have noticed it. Either there is a source outside the order, or there is a fiction at the top of it doing the work a source would do.

6. What does and does not follow

Here I must say something against the conclusion a reader of this note will be tempted to draw, which is that a self-founded state has no authority, and that the United States can therefore make no law. That conclusion is false, and the tradition has already rejected it, in a harder case.

Authority does not come from the text. That is the whole point of the third answer. It comes from God in the community, and it does so whether or not the community’s document says so. A man who says “I made myself” has said something false, but he has not thereby unmade himself. The preamble’s circle is a defect in the United States’ account of itself, not in the United States. The 1776 chain exists as a historical fact whether or not 1787 recites it, and the people who ordained the Constitution were a people already, by an act that named its Creator.

Leo XIII settled the practical question in 1892, in Au milieu des sollicitudes, and he settled it for the French Republic, whose founding text is worse than the American one. He told French Catholics to accept the Republic as legitimate, because civil power, whatever its form, is from God, and to confine their fight to its bad legislation. Constituted power is one thing; what it enacts is another. The Church has treated self-described self-founding states as competent legislators ever since, and signs treaties with them. There is a general legal principle underneath, which the canonists call colour of title: where an authority acts under a defective title but the community acts in common error, the acts stand. The alternative principle, that a defect in the form voids the whole, is the principle of every schismatic, and the Church refuses it for the same reason in the sacraments and in the state.

What is true is narrower, and worth stating exactly because it is the real finding.

First, the United States can enact no law contrary to the natural law. Aquinas: such a thing is “not a law but a corruption of law,” and it does not bind. This is not a radical claim; it is the ordinary Catholic one, and it holds against every state equally.

Second, the United States cannot enact the one law its preamble claims to enact. A law conferring authority on its own maker is void for circularity, as a matter of logic rather than politics. The United States can make every law except the law that makes the United States. That law was made elsewhere, in 1776, with a Creator in it, and the preamble’s only error is to forget where.

7. The reversed order

I want to end with a diagnosis rather than a conclusion, and I offer it tentatively.

In the Catholic account there is an order between two kinds of question. There are questions about what is true, which are answered by teaching, and questions about what is to be done, which are answered by law; and law is ordered to teaching, never the reverse. A law can presuppose a truth. It cannot establish one. The moment law is asked to say what is true, it has been given a job it cannot do, and it will do it badly, by saying, in effect, “it is true because I say so.”

The United States has arranged its founding documents the other way round. Its teaching document, the Declaration, is not law; it sits among the Organic Laws and no court will apply it. Its legal document, the Constitution, is therefore asked to carry the doctrinal weight: to say where rights come from and what a person is. A legal text asked where rights come from can only answer “from me,” and that is the answer the second reading gives. The circle is not a quirk of drafting. It is what you get when the law is made to answer a question that belongs to teaching, and the teaching is placed where the law cannot read it.

If this is right, it explains a certain shape in American public life better than the usual accounts do. A polity with two unresolved readings of its own origin can act vigorously on whatever the readings agree about and not at all on what divides them. Each side experiences the other’s victories as illegitimate rather than merely mistaken, because the quarrel is about the legitimator and not the law. And the polity reaches, again and again, for something that could settle the question from outside, a court, a president, a movement, and is disappointed, because the only text that settles it from outside is the one its courts are forbidden to read. The Irish, in 1937, put the settlement in the first sentence: “In the Name of the Most Holy Trinity, from Whom is all authority.” The Americans put it in a different document eleven years before the one that counts.

8. Open questions

I would be grateful for pressure on the following.

(a) Whether the persona ficta tradition really excludes a collective moral subject as firmly as I have said, given the later doctrine of structures of sin, and whether the distinction between “the fiction cannot sin” and “the fiction is a sin’s shape” holds up.

(b) Whether the Declaration’s “Creator” is doing the work I want it to do, or whether Jefferson’s deism makes it a witness rather than a source, in which case the American text has no third-answer reading at all.

(c) Whether Au milieu des sollicitudes can bear the weight of a general principle, or whether it was a prudential ralliement that Leo’s successors quietly abandoned.

(d) Whether Kelsen’s late remark about the basic norm as fiction is as damaging as I have made it, or whether a presupposition can be innocent in a way a fiction is not.

(e) Whether the “reversed order” diagnosis is a real structural claim or merely a Catholic way of describing a disagreement that any pluralist society would have.