I’m really gonna miss having a spring break.

Close on 100 years ago, the legendary Supreme Court Justice Oliver Wendell Holmes noted that declaring an act of the legislature unconstitutional was “the gravest and most delicate task this Court can undertake.” It is easy to see why—in a democracy, where the People rule, overruling the People is serious business.  Yet this the Arkansas Supreme Court has done.

On Thursday, the court declared unconstitutional Initiated Act I, approved in 2008 by 57% of Arkansas voters, which provides that individuals who are unmarried, cohabiting sexual partners will not be allowed to adopt. In the tradition of Justice Holmes, the Court noted that “an act should be struck down only when there is clear incompatibility between the act and the constitution.”

So, how did they get there?  See if you can follow.

(1) The Arkansas Constitution contains no enumerated right to privacy. (2) However, it does contain a right to enjoyment of life and liberty and the pursuit of happiness, as well as the right to be secure in one’s own home. (3) Furthermore, “privacy” is mentioned in more than eighty Arkansas statutes (nevermind what those statutes say, specifically), which evidences a public policy of the General Assembly supporting a general right to privacy. (4) In light of (2) and (3), the Arkansas Constitution contains an implicit fundamental right to privacy, which protects “private, consensual, noncommercial acts of sexual intimacy between adults.”  This is true despite (1). (5) A law which burdens fundamental rights is subject to heightened judicial scrutiny, meaning it must advance a “compelling state interest” and be the “least restrictive method available” for carrying out that interest. (6) Act I burdens the right to privacy because it forces cohabiting couples to choose between cohabiting as sexual partners and adoption. (7) Therefore, pursuant to (5), Act I is subject to heightened scrutiny. (8) The Act is not the “least restrictive method available” for serving the state’s interest in promoting adoption into stable homes. (9) The Act is therefore unconstitutional as a violation of the right to privacy, though this right is not mentioned in the constitution (see (1)).

Here we have clarity of the sort that reminds me of the Arkansas River in April (for you out-of-staters, clear it ain’t). Yet on these nine steps rests the gravest of all tasks, in which a handful of people overrule the People. All of this is to say nothing of the merits of Initiated Act I as policy, but only that in a democracy, it is the People who make the policy judgments. Constitutional courts steps in, and step gingerly, only when the constitution as is, rather than as the court wishes it to be, demands that they do so.

Today, as in all court decisions, there are winners and losers. One of those was not a party to suit – Democracy, at the hands of the robed few, continued her losing streak in the Natural State.

There’s power in the Preamble. What those first few words of America’s Constitution lacked in volume, they more than made up for in ambition.  That any People would endeavor to form a more perfect union or establish justice or ensure their own domestic tranquility was, in the old world, nothing short of remarkable. It is doubtful that, in their own time, so few words ever set out to do so much.

But the devil was in the details.  The Three-Fifths Clause gave power to the southern states on the backs of the very population they enslaved.  The same document which professed to do so much did so much less than was needed to cure the Union’s first and greatest defect.  Righting the course would cost America no less than 600,000 of her own sons.  But Lincoln’s generation was the first of many which would find new power in the Preamble.  On those first few promises of the Constitution, rights theretofore reserved for landed, white males would be extended to others, and the Preamble would allow the Constitution to look no further than itself in licensing the correction of its own failures.  These later generations would “[surge] through the Preamble’s portal and [widen] its gate.”

Thus, the Preamble is a window into the history of the American political consciousness, and its words are fertile soil for discussing the broader aims and themes of the American experience.  In that light, this short article will focus on the first stated object of the Preamble—to form a more perfect union.  Its purposes herein are fourfold: to explore the historical meaning of this phrase, to highlight a modern meaning given it by the current President, to ask some questions begged by the discrepancy between these two meanings, and to discuss those questions’ implications for democracy.

A Better Union

Ask a typical 18th century colonist how he identified himself, and his answer would more likely have been “Virginian,” “New Yorker,” or “Delawarean” than “American.”  This had not changed much by 1787, even after the colonies spoke with one voice in the Declaration of Independence, allied together under the Articles of Confederation, and pooled resources to repel the British in a war for independence.  The sons of the Revolution were still, most importantly, sons of small s states.  But the men who emerged from Independence Hall offered up a radically different notion for the consideration of the People.  Their proffered document professed to “form a more perfect union.”  This was language which put the Constitution’s ratifiers on notice of the deal to which they would be consenting—that Virginians, New Yorkers, and Delawareans were now first and foremost Americans.  Indeed, an early version of the Preamble which began “We the people of the States of  New Hampshire, et al.” was forever confined to the records of the Convention. The Constitution would form a true national government, and unilateral secession would not be permitted. The “world’s most democratic moment” was also “the world’s largest corporate merger.”

It comes as no surprise to find the desire for a more perfect union leading off the Preamble—for many, including George Washington, the very impetus for the Constitutional Convention had been national security. The loose federation under the Articles had proven a weak vehicle from which to wage a national war, and the government was fast proving susceptible to insurrection. Indeed the inefficacy of the national government led General Washington to remark in 1784 that he had “many [fears], & powerful ones indeed which predict the worst consequences from a half starved, limping Government, that appears to be always moving upon crutches, & tottering at every step.” But the new Constitution would institute that new and stronger kind of central government which Washington knew America needed.  With a robust executive, a more unified regulatory scheme, and the power to lay and collect taxes, this new government would be one that could meet the demands of the next General Washington in the next great war, whomever and whenever they may be.

The notion that the Constitution ushered in a more perfect union than the Articles was affirmed in later years by the Supreme Court, which has directly referred to the Constitution’s stated object of a more perfect union no less than fifty times. In Lane County v. State of Oregon, the Court stated that “[t]he people, through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the Confederate government, which acted with powers, greatly restricted, only upon the States.” And in Duncan v. Kahanamoku, the Court further remarked that the Constitution “was written by a generation fresh from war.  The people established a more perfect union, in part, so that they might the better defend themselves from military attack.”

In light of the failings of America’s first constitution (or treaty), the meaning of the Preamble’s first portion becomes clearer—We the People, in order to improve upon the Articles of Confederation . . . .  Of course, this phrasing hardly rolls off of the tongue like what we find in the Constitution, but that first stated purpose reminds us that our Constitution was born out of necessity.  The Articles of Confederation had nearly failed and continued to totter, but a better union would be possible under the Constitution.

A Perfect Union

That the framers did not opt for the more pedestrian phraseology is not lost on our current President.  In the wake of a 2008 campaign controversy, President Obama delivered a critically acclaimed speech on race relations entitled “A More Perfect Union.”  The invocation was hardly novel in the race-relations arena, but the President offered an exposition which went a bit further than the Founders or the Court may have gone—he remarked that the Constitution was one that “promised its people liberty and justice and a union that could be and should be perfected over time.”

To the President’s credit, many developments in American democracy have confirmed the narrative.  The chief defects in the Constitution of 1789 were resoundingly repudiated in series—slavery was abolished in the Thirteenth Amendment; Americans were promised equality in the Fourteenth; black men were granted the right to vote in the Fifteenth; women were granted the same in the Nineteenth; poll taxes were abolished in the Twenty-Fourth; and young adults were granted the right to vote in the Twenty-Sixth. The improvements to the Constitution of 1789 which have given us the Constitution of 2010 evidence a breathtaking trajectory towards political equality.  But perfection?

The distinction between the two meanings for the phrase—that the Constitution was a betterment of the status quo and that the American union is on a trajectory for perfection—is simultaneously subtle and significant, and the President’s extrapolation raises some interesting questions.  Is perfection promised anywhere in the Constitution?  Is it even possible?  Is there any danger in entertaining the idea that it is?  How ultimate are the ends to which our Union is a means?

Does the Arc of Democracy Bend Towards Perfection?

In thinking about democratic expectations, it is worth noting a rarely-cited wrinkle in the founding narrative—that the Framers lived some time after the ratification of the Constitution and that many of them were none too pleased with some of its collateral effects.  In the early morning of a new century, the academic endeavors of 1787 were beginning to give way to a democratic rough and tumble.  This provoked interesting reaction from the old guard.  Perhaps the most disillusioned was Benjamin Rush, signatory to the Declaration of Independence.  By 1812, he would go so far as to say the American experiment would “certainly fail,” adding that “[i]t has already disappointed the expectations of its most sanguine and ardent friends.” In 1802, Alexander Hamilton would conclude that “this American world was not made for me.” Not even General Washington was spared of cynicism—“Let that party set up a broomstick and call it a true son of Liberty; a Democrat, or give it any other epithet that will suit their purpose, and it will command their votes in toto!”

Of course, the thesis of disillusionment leans in part on the popular but dubious proposition that the Founders were anti-democratic. But the more salient fact is not why the Founders were disillusioned, but that the they were—that a Father like Jefferson may have, in the words of Gordon Wood, “hated the new democratic world he saw emerging in America.”

If such a scenario indeed played out, it is somewhat surprising from a group of men so openly sober about the fallibility of man. The whole endeavor was dubbed an “experiment,” not simply because ratification was unsure, but because popular sovereignty itself had a contingency—the virtue of the people. Benjamin Franklin’s famous encounter with a lady outside of the Convention, even if only anecdotal, illustrates that their choice had not been safe—the new government was to be “a republic, madam, if you can keep it.”

The experimental baton had been passed to the People and her posterity.  Yet even the Founders were a bit dismayed at how quickly the Republic had stepped out of line with their vision.  The lesson is this—even if the Founders had promised a union that could and should be perfected over time, the Republic had already begun to regress in just a few short years.  If Jefferson indeed “hated” what he saw, it was surely because his hopes had run too high.  “More than any of the revolutionary leaders, he had relied on the future to take care of itself.  Progress, he thought, was on the march . . . .  The people in a liberal democracy would be capable of solving every problem, if not in his lifetime, then surely in the coming years.”

Does It Matter?

A sober view of democracy’s aims is not only mandated by history’s lessons, it is prudent for good government.  A popular understanding of the limitations of government undoubtedly has many desirable effects in a democracy, but two of them are especially noteworthy:  better policy decisions and a more constructive civil discourse.

In the realm of policy making, sobriety about the limits of government is essential to the achievement of practical outcomes and to the security of liberty—if a government believes there is nothing it cannot do, then there is nothing it will not do.  During the 2008 presidential campaign, sobriety was hardly the theme of the day.  Disillusionment with the previous eight years was surpassed only by fresh hopes for a new era.  But the hopes for a better and more practical government were mixed with hopes for perfection, pronounced—“I am confident we can create a Kingdom right here on Earth”—and seized upon.  On the wings of celestial ambitions, the new administration pushed an unfettered domestic policy agenda, chief of which was the healthcare bill, styled by some as being about “whether this nation will finally guarantee its people the right to live free from the fear of illness and death, which can be prevented by decent health care for all.” If the health care bill is an example of an overreach, it is perhaps because its advocates’ ambitions ran too far.

A proper understanding of the limitations of democracy has important implications for civil discourse as well. Of course, any time an important political issue crosses the face of the American people and ugly debate ensues, many will say that this is “democracy in action.”  But can anyone doubt that a more civil, reasoned national discussion is better for democracy than the personal, fever-pitched yelling matches that have become par for the course?  Understanding that there are limits to what democracy can accomplish encourages civility—once a people realizes that something less than heaven is at stake, they are less likely to fight like hell.

This is not to say that democratic debate ought not be vigorous or that the shaping of society is not important business, but perspective should be proper.  Who wants to be the conservative standing in the way of ending disease or creating a Kingdom [of Heaven] right here on earth?  By the same token, who wants to be the liberal standing in the way of a return to a righteous America, buttressed by traditional families with pristine moral values?  Yet this is exactly what the debates over health care and California’s Proposition 8, for example, became about, respectively, and both sides operated on the presupposition that the government was capable of delivering the goods.

In short, understanding that the arc of democracy does not bend towards perfection—that democratic outcomes will, by definition, not meet standards for perfection—is a matter of first importance for common-sense policy and a sophisticated national debate.

In 1789, delegates to the various ratifying conventions voted to form a more perfect union and improve their national odds over those under the Articles of Confederation.  The geostrategic demands on the fledgling nation, the writings of the Founders, and the later confirmation by the Supreme Court confirm that the shortcomings of the Articles were impetus and inspiration for the Constitution in general and the words “more perfect union” in particular.  But does the Constitution include a promise of perfection? The question is an important one with implications for practical policy and civil discourse.  The Founders teach us many lessons—one less taught is that of disillusionment.  In thinking of the Constitution and the radical way in which she ushered in a new democratic day, it is also important to remember that democracy can only do so much.