A note on Constitution Day: I haven’t often focused on the key verbs in the phrase, “We the People … do ordain and establish this Constitution.”

The authors held a precarious role. They took it upon themselves to write a legally authoritative document that included its own process of ratification. Their logic was circular. They adopted the first-person plural voice of the nation, but it was by no means clear that the people would agree with them–not even the propertied white men who would have an official voice in ratification. The Framers could have said that they were “requesting” or “proposing,” but they chose to ordain, and also to establish. This was a performative utterance if there ever was one.

The Northwest Ordinance (1787) had begun, “Be it ordained by the United States in Congress assembled. …” “Be it ordained” is an expression of explicit authority, like a court’s “so ordered, adjudged and decreed.” In the case of the Northwest Ordinance, the basis was a majority vote of the Congress. “We the people … ordain this Constitution” was more metaphysically complex, since “the people” could not speak until the Constitution that was attributed to them had actually come into force.

Already in 1325, according to Robert of Gloucester, “The king.. let ordeiny..& let rere up chirchen” (he ordained and let churches be reared up.) As in this example, “ordain” can mean “to decide the order or course of; to arrange, plan” (OED), although that use is now obsolete. Much more common is the sense of “to confer holy orders on,” which is not what the Framers meant.

To “establish” can mean “to fix, settle, institute or ordain permanently, by enactment or agreement” (OED). Chaucer used it in that sense ca. 1386, in the Parson’s Tale: “The peynes that been establissed and ordeyned for synne.” Note how he uses the Preamble’s two key verbs in one phrase, albeit in the opposite order from the Preamble.

Was it redundant to say both ordain and establish, or were their meanings subtly different? Legal language often incorporates pleonasm, as in “null and void,” “terms and conditions,” and “each and every.” These are examples of a whole category called legal doublets.

The Virginia Constitution of 1776 (written by elected “delegates and representatives of the good people of Virginia”) included the phrase “do ordain and declare.” Robert Ferguson (1987) thinks that the Constitution’s framers had this text in mind as a draft and self-consciously improved it for the Preamble, although I must admit I like the way the Virginians presented their work as the product of “having maturely considered … the deplorable conditions” of their state.

Source: Robert A. Ferguson, We Do Ordain and Establish: The Constitution as Literary Text, 29 WM. & MARY L. REV. 3 (1987) See also: why social scientists should pay attention to metaphysics; liberals, conservatives, and love of the Constitution; constitutional piety; etc.