The People of the United States: The Lost Constitution of National Popular Sovereignty

When the U.S. Constitution first appeared, its Preamble was of central importance. Over time, though, its significance diminished. While it remains a celebrated part of the Constitution, its power to legitimize broad national authority has disappeared. The story of the Preamble’s rise and fall illuminates a once robust vision of U.S. constitutionalism and the framers who did more than any other to embed it in the document: the Pennsylvanian James Wilson and the New Yorker Gouverneur Morris. Their Constitution is lost, and with it a central piece of the Constitution’s early history. This article recovers this lost Constitution, delineates its core features, and documents its hitherto overlooked vitality. Wilson and Morris were among the leading champions of expansive national power during the Founding era. Contrary to those who imagined the United States as a decentralized federal union and guarded the sovereign authority of the individual states, they were committed to a distinctive theory of national constitutionalism predicated on the idea that the act of declaring independence had created a national people—the people of the United States—whom the national government had been established to represent. Wilson and Morris had success incorporating these ideas into the Constitution of 1787, particularly through their neglected work on the Convention’s two major drafting committees. The cornerstone of their Constitution was the Preamble, the final version of which they wrote. During the Constitution’s earliest years, Wilsonian constitutionalism predominated in a way few have appreciated. But it also eventually disappeared, and much can be learned from understanding how and why that happened. Both men failed to defend their vision in the cauldron of early constitutional politics, as their leading nationalist allies—especially Alexander Hamilton and John Marshall—helped erase the Constitution they had worked to establish through fateful argumentative choices often influenced by concerns that implied national power posed a threat to slavery. The fall of Wilson and Morris’s Constitution was not inevitable. In bringing this forgotten vision of constitutionalism back into focus and understanding why it was lost we can appreciate how differently U.S. constitutionalism might have turned out had the “people of the United States” retained its initial power.