Addis - Constitutional Preambles As Narratives of Peoplehood

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USER JOURNAL TITLE: Vienna Journal on International Constitutional Law
ARTICLE TITLE: Constitutional preambles as narratives of peoplehood

ARTICLE AUTHOR: Addis Addeno
VOLUME: 12
ISSUE: 2
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YEAR: 2018
PAGES: 125-181
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ICL Journal 2018; 12(2): 125–181
Adeno Addis*
Constitutional Preambles as Narratives
of Peoplehood
https://doi.org/10.1515/icl-2017-0079
Abstract: Most constitutions start with a preamble. A constitutional preamble is

a text designed to introduce the rest of the constitution. Often, it is also meant to
give a concise statement of the nature of the system that the constitution
establishes. While they may differ in style and length, most preambles seem to
perform two primary functions. First, they declare or identify the source of
authority for the document. In most preambles, it is ‘we the people’ that is
invoked as the legitimate source of authority. Second, most preambles engage in
an explicit attempt to project an identity for ‘we the people.’ At times, the people
is defined through an extended historical biography. At other times, it is the
presumed common ethnic origin or religious membership that is said to estab-
lish the bond, whether the people is territorially bound or not. Still at other
times, it is the existence of common political and moral principles that is
thought to make up the core constitutive elements of who the people are.
Whatever the strategy, preambles attempt to imagine a usable political
identity for the people, its collective agency. ‘The people’ are viewed with
sufficient agency capable of ‘ordaining’ or ‘granting’ the constitutional docu-
ment to themselves. Of course, in many cases ‘we the people’ are the very
creation of the document itself. Under this account, the ‘people’ are simulta-
neously the author and product of the constitution. In this sense, preambles are
performative in nature: they constitute the people as they at the same time
declare that the people are their authors. Through a close study of the constitu-
tional preambles of all countries currently in existence, this article explores how
preambles narrate a politically serviceable identity for ‘the people’. Whatever
else they are meant to do, preambles are narratives of peoplehood. The formal
legal status of preambles might be uncertain, but what is not in doubt and what
has largely been neglected is the fact that preambles are also means through
which a people attempts to imagine and solidify its identity. As Benedict
Anderson long ago explained, an imagined identity is neither true nor false—it
simply is. This article explores the processes by which this imagining takes place
and the purposes for which it is adopted.
*Corresponding author: Adeno Addis, WR Irby Chair and W Ray Forrester Professor of Public
and Constitutional Law, Tulane University School of Law, New Orleans, USA,
E-mail: aaddis@tulane.edu
126 Adeno Addis
Keywords: constitutional identity, narrative, preamble, performatives, we the

people
1 Introduction
Most constitutions begin with a preamble. A constitutional preamble is
generally a relatively brief text designed to introduce the constitution.1
Indeed some preambles are referred to as forewords,2 emphasizing the intro-
ductory role they are meant to perform. While they may differ in style and
length, most preambles have several things in common. They give a concise
statement of the nature of the system which the constitution that follows is
supposed to capture. Many also list the general guiding principles of the
social contract that the document is meant to manifest. Many of those
principles are, however, included in the constitution itself, often word for
word, either as free-standing articles or as clauses in an article. That, of
course, makes the idea of an introduction appear rather superfluous. But
there seem to be two other primary functions for preambles. First, preambles
declare or identify the source of authority for the document. In most pre-
ambles, it is ‘we the people’ that is invoked as the source of authority.
Second, most preambles engage in an explicit attempt to project an identity
for ‘we the people,’ how ‘we the people’ came to be. ‘We, the people’ is at
times defined through an extended historical biography. At other times, it is
the presumed common ethnic and religious membership that is said to
establish the bond, whether the people are territorially bound or not. Still
at other times, it is the existence of common principles that are thought to
be the core constitutive elements of who the people are.3 Whatever the
strategy, preambles attempt to imagine a usable political identity for the
people, its collective agency. The idea is that there was ‘a people’ with
sufficient agency prior to the constitutional document that was capable of
1 A preamble is ‘the introduction to a formal document that acts to explain its purpose.’ The
American Heritage Dictionary of the English Language (4th edn Houghton Mifflin Company
2006). Constitutional preambles introduce constitutions.
2 The preambles to the constitutions of Albania and Bahrain are referred to as ‘forewords.’ The
Japanese constitution has a ‘preface’ rather than a preamble. Interestingly, the Croatian
Constitution refers to the preamble as ‘historical foundation.’
3 As I shall show later, an example of this is the preamble to the Charter of the United Nations,
the constitution of the international community.
Constitutional Preambles as Narratives of Peoplehood 127
‘ordaining’ or ‘granting’ the document to itself. However, as this article will

demonstrate, in many cases, ‘we the people’ is the very creation of the
document itself. The political ‘people’ is simultaneously the author and the
product of the constitution. In this sense, preambles, just like constitutions
themselves, constitute ‘the people’ as they simultaneously declare that the
people are their authors. This is a process that sociolinguistic scholars call
performative discourse or performative utterance.4
The notion of performative discourse had its popular entry in John L
Austin’s work. In a book published after his death, Austin countered what he
thought was the erroneous ‘assumption of philosophers’ that the ‘business of a
‘statement’ can only be to ‘describe some state of affairs,’ or to state some fact,
which it must do either truly or falsely.’5 Austin famously argued that language
cannot only describe things, but actually do things, as well.6 Austin did not deny
that some statements are descriptive in nature, reporting on things and eliciting
a true or false response.7 He refers to those statements as constative utterances,
which he distinguished from performative utterances whose purpose is not to
describe but to perform an act. When I say, ‘I promise to pay’ I am not describ-
ing a state of affairs but making a promise: the utterance is itself the act.
Likewise, when a bride and groom respond, ‘I do’ when asked, ‘Do you take
this woman (man) to be your lawful wife (husband)?’ the couple is not ‘reporting
on marriage: [they are] indulging in it.’8 A more direct example of performative
discourse for our purposes is the Declaration of Independence of the United
States. The key parts of the Declaration read: ‘We therefore […] do […] solemnly
Publish and Declare, that these United Colonies are, and of right ought to be,
FREE AND INDEPENDENT STATES.’9 The statement that these states are inde-
pendent is in fact performative, though it looks constative. Although it appears
4 Merriam-Webster dictionary defines ‘performative’ as ‘being or relating to an expression that

serves to effect a transaction or that constitutes the performance of the specified act by virtue of
its utterances.’ Merriam-Webster’s Collegiate Dictionary (11th edn, 2003).
5 John L Austin, How To Do Things with Words (2nd edn, Oxford University Press 1975) 1.
6 ibid 94. Thus, for example, when the President swings a bottle of champagne at a ship and
says ‘I christen this ship the “USS New Orleans”’ the President is not merely describing a
christening, but performing one. See ibid 15. Not surprisingly, Austin referred to these sorts of
verbal acts as ‘performatives’. See also Pierre Bourdieu, Language and Symbolic Power (John B
Thompson ed, Harvard University Press 1991) 223.
7 For example, I could say I walked to the Law School today. This utterance describes an
activity and reports on it.
8 Austin (n 5) 6.
9 The Declaration of Independence (US 1776) para 5.
128 Adeno Addis
to be descriptive, it creates the new reality.10 Indeed, that is what the preamble
to the United States Constitution does as well.11
Now, as Pierre Bourdieu notes,12 for performative utterances ‘to be felicitous
they must, among other things, be uttered by an appropriate person in accor-
dance with some conventional procedure.’13 That is, for an utterance to be
effective there needs to exist an institution, ‘a relatively durable set of social
relations which endows individuals with power, status and resources of various
kinds.’14 In the case of preambles, the institutions that endow utterers with such
power come in various forms such as revolutionary triumphs, constitutional
conventions, drafting committees, etc. Often the text so drafted is presented to
‘the people’ for endorsement, at least as a formal matter.
Through a close study of national constitutional preambles currently in
force, this article explores how preambles construct a politically serviceable
identity of the people that is supposed to be the legitimate source of authority
for the document. However, as I noted earlier, quite often the people and the
document are co-originators, which seems to be paradoxical. This article deals
with this apparent paradox by employing the notion of ‘performative discourse.’
Preambles offer a fascinating window into the process by which ‘a people’ is
imagined and how collective public identities are constituted.15
10 Interestingly, the phrase ‘ought to be free and independent states’ (emphasis added) which is
essentially constative, suggests that the Declaration is defined by the tension of performative and
constative discourses. See also Jacques Derrida, ‘Declarations of Independence’ (1986) 15 New
Political Science 7. As Derrida puts it, the signatures on the Declaration constituted the people.
Before the signature, ‘the people do not exist as an entity, the entity does not exist before this
declaration, not as such. If it gives birth to itself, as free and independent subject, as possible
signer, this can hold only in the act of the signature. The signature invents the signer.’ ibid at 10.
11 Akhil Reed Amar, America’s Constitution: A Biography (Random House 2005) 5; The words
‘We the People of the United States […] do ordain and establish the Constitution’ […] did more
than promise popular self-government. They enacted it […]. [T]he Founders’ ‘Constitution’ was
merely a text but a deed – a constituting. See also Karl-Heinz Ladeur, ‘We, the European
People … Relȃche?’ (2008) 14 European Law Journal 147, 154–155 (‘the core element can be
reduced to the self-referential constitution of a constitutional discourse which finds its expres-
sion in the performative act of the pronunciation of the mythical words: ‘we, the people […]’).
12 Bourdieu (n 6).
13 Bourdieu (n 6) 8.
14 ibid. For Bourdieu’s own statements on the need for institutional backing for an utterer to
make the speech felicitous, see ibid, 72–76, 107–109.
15 Beau Breslin, From Words to Worlds: Exploring Constitutional Functionality (Johns Hopkins
University Press 2009) 4 ([C]onstitutions are profoundly important because they help to form
collective public identities, they help to shape a country’s public character.). What Breslin says
about constitutions generally is even truer in regard to preambles.
Let me briefly note what this article is not about. It is not about the formal
legal status of preambles. The formal legal status of preambles is uncertain. In
some countries they are not cited by decision-makers in the process of making
binding constitutional decisions. The United States is perhaps the best example
of this approach, though there have been judicial references to the preamble
from time to time.16 In some other countries, decision makers such as constitu-
tional courts cite to the preamble for authority. However, even in those countries
where preambles are invoked either as sources of substantive rights or as
interpretive aids,17 it would be safe to conclude that the political dimension of
preambles is regarded as its paramount role. Writing about the preamble of the
16 Home Savings and Loan v Blaisdell, 290 US 398 (1934); Jacobson v Massachusetts, 197 US 11
(1905) (‘Although [the] preamble indicates the general purposes for which the people ordained
and established the Constitution, it has never been regarded as the source of any substantive
power conferred on the government of the United States, or on any of its departments. Such
powers embrace only those expressly granted in the body of the Constitution, and such as may
be implied from those so granted.’ ibid 13–14 (J Harlan). Interestingly, the preamble to the
Constitution seems to have a competitor in the Declaration of Independence, which at times has
served as a preamble to the Constitution. A more recent case is United States v Verdugo-
Urquidez, 494 US 259, 265 (1990) where Chief Justice Rehnquist’s majority opinion cited to the
Preamble when attempting to understand who is included in the Fourth Amendment provision
of ‘the right of the people.’ Rehnquist noted that the phrase ‘the people’ which is mentioned in
the Second, Ninth and Tenth Amendments, as well as the Preamble and other parts of the
Constitution, is to be distinguished from persons who have certain rights under the Fifth and
Sixth Amendments. He said: ‘the people’ seems to have been a term of art employed in select
parts of the Constitution. The Preamble declares that the Constitution is ordained and estab-
lished by “the People of the United States.”’
17 By ‘interpretive aids’ I mean to refer to circumstances when a decision maker uses the
preamble to interpret a particular provision of the Constitution when that provision does not
lend itself to easy or clear understanding or when the decision maker uses the preamble to opt
for the interpretation that best fulfills the ideals of the preamble when a provision lends itself to
divergent interpretations. To say that a preamble is an interpretive aid is to make the claim that
it serves to orient the interpretation of substantive rights and duties enumerated in the
Constitution. India is a good example of a country where the preamble is utilized as interpretive
aid. See also Ramesh C Lahoti, Preamble: The Spirit and Backbone of the Constitution of India
(Eastern Book Co 2004). The Supreme Court of India has, for example, used the preamble to
conclude that the constitutional authority derived from the people of India. Various other
constitutional courts have invoked their preambles as interpretive aids. Thus, the Estonian
Supreme Court relying on the preamble ruled that an act requiring that one has adequate
command of the Estonian language was constitutional (see EST-1998-3-007 [Official Gazette]
1998, CODICES, available at < http://codices.coe.int > accessed 7 March 2018) while striking
down another act that forbade Estonians from changing their Estonian last names to a non-
Estonian last name (EST-2001-1-2004 9 Official Gazette) 2001, CODICEs database. For other
decisions using preambles as interpretive aids see Liav Orgad, ‘The Preamble in Constitutional
Interpretation’, (2010) 8 The International Journal of Constitutional Law 721–726. For courts
130 Adeno Addis
United Nations Charter, the Constitution of the United Nations,18 Hans Kelsen
made the following observation: ‘The Preamble sets forth certain political ideals
without guaranteeing their realisation by the sanctions stipulated by the Charter.
Thus, it has rather an ideological than a legal importance.’19 Ideology here is not
used in the polemic and pejorative sense.20 It simply means aspirations and
political commitments. But what precisely is the political (ideological, to use
Kelsen’s term) role that preambles are meant to play?21 In this article I shall
make and defend the claim that the important political role preambles play or
are meant to play is one of imagining the identity (the biography) of the political
community — ‘the people’ or ‘the nation.’22 In the process of imagining the
political community, preambles paint a picture of a well-defined people suffi-
ciently stable so as to be both a source of authority for and the beneficiary of the
reliance on preambles as sources of substantive rights, including the Supreme Court of India,
see Orgad, ibid 726–731.
18 Hans Kelsen, ‘The Preamble of the Charter A Critical Analysis’ (1946) Journal of Politics 134–
159 (‘Charter’ is certainly a more adequate designation of the constitution of an international
community than ‘Covenant,’ the name given to the statute of the League of Nations.’).
19 Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems
(The Law Book Exchange 2000) 9. Let me mention here that preambles are often thought of as
interpretive aids in relation to international treaties (and the UN Charter is a treaty). See also
The Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331.
Article 31 (2) declares ‘[t]he context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and annexes […]’.
20 Clifford Geertz, The Interpretation of Cultures: Selected Essays 193 (Basic Books 1973) (‘it is
one of the minor ironies of modern intellectual history that the term ‘ideology’ has itself become
thoroughly ideologized.’).
21 Sanford Levinson, one of the few scholars who has looked at preambles closely, observes
that the role of constitutional preambles is ‘extremely interesting, but relatively underanalyzed.’
Sanford Levinson, ‘Do Constitutions Have a Point? Reflection on ‘Parchment Barriers’ and
Preambles’ in Ellen Frankel Paul, Fred D Miller Jr and Jeffrey Paul (eds), What Should
Constitutions Do? (Cambridge University Press 2011) 150, 155.
22 The use of ‘nation’ rather than ‘people’ in some constitutions is meant to emphasize that the
‘people’ referred to in the constitution is to be understood primarily as an ethno-linguistic rather
than a civic people. The intense debate over the preamble to the Polish Constitution as to
whether the preamble should begin ‘we the nation of Poland’ or ‘we citizens of Poland’ shows
how the notion of the ethno-linguistic vision of the people still has sway. See also Elźbieta
Hałas, ‘Constructing the Identity of a Nation-State, Symbolic Conflict Over the Preamble to the
Constitution of the Third Republic of Poland’, (2005) 149 Polish Sociological Review 49, 59
(‘[The] conflict [was] over the definition of identity, based either on citizenship or on being
Polish, as an expression of a common national identity.’). See also Geneviève Zubrzycki, ‘We the
Polish Nation’: Ethnic and Civic Visions of Nationhood in Post-Communist Constitutional
Debates’ (2001) 30 Theory and Society 629, 643–655.
document it precedes. It is, therefore, not the legal status of preambles that is of
concern here, but rather its constitutive role.23
This article is organized in the following manner. Section 2 gives a brief
introductory account of the nature and character of constitutional preambles. It
also sets out the reasons why preambles have become a subject of interest for this
particular inquiry. In Section 3, this article makes the argument that preambles
are analogous to autobiographies, except here the autobiography is that of ‘the
people.’ Section 4, which forms the heart of the article, sets out the various ways
in which preambles, like biographies, attempt to constitute and narrate the
identity of the people. Just like some autobiographies, some preambles are or
can appear to be fictional, but that does not diminish the fact that they are still
viewed as the autobiography of the people. Section 5 gives a brief account of the
gap between the asserted identity and the reality in which the authority of the
people is invoked. At times the gap is so wide that the preambular assertions of
identity lose credibility. Section 6 explores a paradox that seems to be inherent in
the assertion that the people and the constitutional document are co-originators.
It attempts to deal with the paradox by relying on the notion of performative
discourse that was developed by socio-linguist scholars and philosophers of
ordinary language. Section 7, the concluding section, is a backward glance. It
recaps and highlights the central arguments of the article.
2 A brief introduction to preambles and why

preambles have recently become source
of scholarly interest
Constitutions are not the only legal documents that have preambles. Treaties,
statutes and contracts may also have introductory statements which, though they
may not be referred to as preambles, function as such by stating the reasons and
purposes for the documents that follow them.24 But it is preambles to constitu-
23 Breslin (n 15) 37 (‘To constitute is to make up, to form, to take disparate parts and shape
them into a more or less coherent whole.’). See also Amar (n 11).
24 Joseph Story, Commentaries on the Constitution of the United States (Carolina Academic Press
1987, originally published 1833) 163. (It is an admitted maxim in the ordinary course of the
administration of justice, that the preamble of a statute is a key to open the mind of the maker,
as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by
the provision of the statute. We find it laid down in some of our earliest authorities in the
132 Adeno Addis
tions,25 specifically, that have generated considerable scholarly interest.

Preambles to constitutions (organic documents) occupy an important place in
an important document. That seems to require that they deserve special attention.
In the modern era, the United States Constitution was said to be the first to
include a preamble in a national constitution.26 Whether or not that is the case,
it is uncontroversial that the United States Constitution has inspired most of the
preambles of constitutions currently in force.27 The constitutions of the over-
whelming majority of countries have preambles.28 Some are relatively short29
but others go on for pages.30 But they all seem to perform similar functions: they
declare or identify the source of authority for the document, often using the
phrase ‘we the people’31; many give a brief history of the people (some not so
common law; and civilians are accustomed to a similar expression, ‘cessante legis pramio,
cessat et ipsa lex.’).
25 Here I include preambles of founding documents for international institutions such as the
United Nations. The United Nations Charter is the constitution of the organization. See Bardo
Fassbender, The United Nations Charter as the Constitution of the International Community
(Martinus Nijhoff 2009). In a later section of the article I shall explore in some detail the non-
legal (‘ideological’) function of the preamble to the Charter.
26 Tim Ginsburg, Nick Foti and Daniel Rockmore, ‘We the Peoples’: ‘The Global Origins of
Constitutional Preambles’, (2014) 46 George Washington International Law Review 101, 107–109.
27 Even though the historical influence of the ‘American Constitution on other constitutions is
readily admitted, there are now some who argue that that influence has visibly declined. See
Mila Versteeg and Emily Zackin, ‘American Constitutional Exceptionalism Revisited’ (2014) 81
University of Chicago Law Review 1641, 1642–1643 (‘Once immensely influential around the
globe, [the American Constitution] now stands apart from the constitutional systems that it
previously inspired. It is, in many ways an outlier […]’ see also David S Law and Mil Versteeg,
‘The Declining Influence of the United States Constitution’ (2012) 87 New York University Law
Review 762.
28 There are a few countries, about two dozen, whose constitutions do not have preambles or
their equivalent. They are: Azerbaijan, Austria, Belgium, Cyprus, Denmark, Finland, Italy,
Latvia, Luxembourg, Malta, Netherlands, Norway, Saudi Arabia, Singapore, and Sweden. As
the list shows, there is only one African country and only three countries from Asia; the rest are
European countries. The Benelux and Scandinavian countries constitute the majority of the
European countries with no preambles. Why this is so is an intriguing question, but will not be
the concern of this paper. There are also three countries which do not have written constitutions
(Israel, New Zealand and the United Kingdom) although one of them (Israel) has developed
something equivalent to a preamble which I shall examine later.
29 The United States and Switzerland have two of the shortest preambles. And Greece has the
shortest with merely 11 words.
30 Iran has the longest preamble and China is not far behind.
31 There are a handful of constitutions which announce that the source of authority is a
monarch, an emir or a benevolent dictator of another kind, each of whom claims to be the
sovereign. But those are very few in number. Here is the complete list: Bahrain (the Emir gives
brief) indicating that a people existed prior to the adoption of the document;
most give a concise statement of the nature of the system that the constitution is
supposed to capture. And some indicate the historical circumstance under which
they were adopted.
In sum, as a general matter, preambles announce who the people are, what
they believe in, and who they aspire to be. But, of course, who they aspire to be
and what they believe in are in a sense a description of who they are, for in large
measure who they are is constituted by what they believe in and what they
aspire to be – their interests, ideals and aspirations. In that sense, preambles
have one major purpose, announcing who the people are. Preambles have been
referred to as ‘a potential totem for state, community and individual.’32 Speaking
of the US Constitution in 1937 Max Lerner, the editor of The Nation thought that
it wasn’t a potential but a real totem: ‘[e]very tribe needs its totem and its fetish,
and the Constitution is ours.’33
Indeed, in some very interesting ways preambles attempt to codify many of
the totems of the tribe, in their distinctive as well as overlapping sense; and in
their descriptive and imaginary sense. One scholar has referred to preamble as
‘effectively the lymph gland of the Constitution.’ It pumps things throughout the
whole Constitution.’34 Perhaps one of the things that is pumped throughout the
constitutions by preambles is an imagined people that serves both as a source
and a beneficiary of the constitutional document.
and amends the Constitution), Jordan, Kuwait (‘We, Abdullla al-salim al Sabah, Amir of the
State of Kuwait, desiring to use the means of democratic rule for our dear Country […] do hereby
approve this Constitution and promulgate it’), Monaco, Morocco, Oman, and United Arab
Emirates.
32 Mark McKenna, Amelia Simpson and George Williams, ‘First Words: The Preamble to the
Australian Constitution’, (2001) 24 University of New South Wales Law Journal 382 (Preambles
‘act[] as a potential totem for state, community and individual.’); see also Mark McKenna, ‘First
Words: A Brief History of Public Debate on a New Preamble to the Australian Constitution’ 1991–
1999 (2000), available at < http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/
Parliamentary_Library/pubs/rp/rp9900/2000RP16 > accessed 28 May 2013 (‘[U]nlike many other
sections of the Constitutions, [preambles’] import is not confined strictly to the political arena.
Culturally specific, their simple but direct language permeates the social and cultural fabric, a
potential totem for state, community and individual.); see also George Winterton, ‘A New
Constitutional Preamble’, (1997) 8 Public Law Review. 186; see also Thomas C Grey, ‘The
Constitution as Scripture’ (1984) 37 Stanford Law Review 1, 17.
33 Mark Lerner, ‘Constitution and Courts as Symbols’ (1937) 46 Yale Law Journal 1294.
34 Anne Winckel, ‘A 21st Century Constitutional Preamble – An Opportunity for Unity Rather
Than Partisan Politics’, (2001) 24 University of New South Wales Law Journal 636, 645. Winckel
quotes Professor Greg Craven as making that observation. See also Justin O Frosini,
Constitutional Preambles At a Crossroad: Between Politics and Law (Maggioli SpA 2012) 19.
134 Adeno Addis
Preambles have triggered scholarly interest for a number of reasons. First, a

general interest in constitutions and constitutional interpretations inevitably
leads one to question what the purpose of a preamble is and how one should
conceive of its relations to the rest of the constitutional document. Is it sub-
stantive law, a source of actionable rights and duties?35 If not, does it serve as an
interpretive tool of the rights and duties set out in the document it introduces?
Or is it a symbolic part of the document? If so, what does it symbolize?
Second, after the collapse of the Soviet Union and its client states in Eastern
Europe, many Eastern European countries started drafting new constitutions. In
some countries, such as Poland, there was a great deal of controversy about how
the preamble should be crafted. In Poland, the conflict over the contents of the
preamble to the constitution was intense, involving secular liberals, conserva-
tives and the Catholic Church, which has enormous power within Polish society.
The only way to understand the intensity of the conflict is to view it as a struggle
to determine how the identity of the political community would be imagined.36
After all, in the Polish context, the Preamble was not important as a strictly legal
document ‘because it does not directly determine the rules of the functioning of
public institutions.’37 The enormous controversy can only be explained, as a
35 Orgad (n 17) 714, 15 (A ‘global survey of the function of preambles shows a growing trend
toward its having greater binding force – either independently, as a substantive source of
rights, or combined with other constitutional provisions, or as a guide for constitutional
interpretation. […] [T]he U.S. preamble, which generally does not enjoy binding legal status,
remains the exception rather than the rule.’); but see Winckel (n 34) 641 (asserting that ‘there is
no doubt that under all approaches, a preamble is still considered to be a non-law-making part
of the instrument.’). This assertion may not be totally accurate even in relation to the preamble
of the Australian Constitution (more correctly, the preamble to a British Act, the Commonwealth
of Australia Constitution Act). There have been cases in which judges referred to the preamble
in arriving at a final decision. See eg Leeth v Commonwealth (1992) 174 CLR 455 where two
judges referred to the preamble to declare an implied constitutional doctrine of the inherent
equality of the people. Even if judges do not refer to it as a legal document, the preamble may
frame constitutional rhetoric in the public arena. Thus, it is the reference in the preamble to the
Australian Constitution of the indissolubility of the federation that was used as part of the
political argument to defeat the attempt of Western Australia to leave the federation in the
1930s. According to the Vienna Convention on the Law of Treaties, treaties shall be interpreted
‘in accordance with the ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose. The context for the purpose of the interpretation of a
treaty shall comprise, in addition to the text, including its preamble and annexes.’ Convention
on the Law of Treaties (n 19) Art 31.
36 Hałas (n 22) 50 (‘The conflict over the Preamble in the process of writing a new Constitution
in Poland after 1989 was a political and at the same time symbolic process, in the sense of
Pierre Bourdieu’s politics of symbolization.’).
37 ibid 51.
Polish scholar noted, by the fact that it was understood as a symbolic form
constituting the collective identity of the political community.38 When identity is
felt to be at stake, the struggle is often intense. So, part of the scholarly interest
is in understanding how preambles become arenas of contest over the people’s
identity.
Third, in the 1990s an interesting constitutional debate took place in
Australia: whether Australia should (or could) replace the preamble of its con-
stitution without amending or changing the rest of the constitution. The debate
was fascinating. Those who supported replacing the preamble, even without
altering the rest of the constitution, argued that the existing preamble did not
capture the identity of the political community at present.39 They thought they
needed a new preamble that captured the essence of the political community.40
As it turned out, for various reasons that need not detain us here, the idea of
amending the preamble alone proved unsuccessful.41 What the Australian
debate suggested, however, was that people did view the preamble, at least
partly, as sufficiently independent from the rest of the constitution so that its
replacement could occur without any change in the document it precedes or
introduces.42 That assumption raises the issue of precisely what is the
38 ibid; see also Zubrzyeki (n 22) 629.

39 McKenna, First Words: A Brief History (n 32); McKenna et al, First Words: The Preamble (n
32) 382. The Commonwealth of Australia was brought into existence in 1900 by an act of the
British Parliament, the Commonwealth of Australia Constitution Act. The Australian
Constitution is found in cl 9 which begins: ‘The Constitution of the Commonwealth of
Australia shall be as follows.’ COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT . A
preamble precedes ‘this and eight covering clauses, and thus forms part of the British Act
rather than part of the Constitution itself.’ ibid; see also Megan Davis and Zrinka Lemezina,
‘Indigenous Australians and the Preamble: Towards a More Inclusive Constitution or
Entrenching Marginalisation?’ (2010) 33 University of New South wales Law Journal 239.
40 Interestingly, France toyed with a similar idea. In 2008 President Nicolas Sarkozy, who had
strong inclination to explicitly include the principle of human dignity in the Preamble,
‘appointed a committee of experts in constitutional law with the task of deciding whether it
was necessary to change or complement the 1946 constitutional Preamble.’ For various reasons,
the committee of experts did not follow Sarkozy’s idea, but it was not because the committee
did not think that preambles could not be amended without any change to the rest of the
constitution. See Stéphanie Hennette-Vauchez, ‘Human Dignity in French Law’ in Marcus
Düwell, Jens Braarvig, Roger Brownsword and Dietmar Mieth eds, The Cambridge Handbook
of Human Dignity (Cambridge University Press, 2012) , –.
41 Winckel (n 34) 638. In Section III of her article Winckel details what she considers to be the
reasons for the failure of the 1999 preamble referendum.
42 The opposite of what appears to be the Australian position seems to exist in relation to
Nepal. Article 116 (1) of the Constitution of Nepal provides: ‘a bill to amend or repeal any Article
of this Constitution, without prejudicing the spirit of the Preamble of this Constitution, may be
136 Adeno Addis
relationship between preambles and the texts that follow them. The Australian
debate also indicated that the significance attached to preambles was great
enough that their replacement was thought to be necessary for reflecting and
affirming the identity of the political community.43 Put simply, although the
Australian experience might have undermined the idea of the preamble as an
introduction, it seems to have affirmed the proposition that the central function
of preambles is one of imagining the people or the nation.
The intense debates in various parts of the world revolving around the
drafting of preambles indicated that the issue was not about how to draft an
introductory statement to the constitution, but rather how the very identity of
the political community should be conceived and narrated. Preambles are
mainly about people-building, about the constitution of peoplehood.44 They
are about imagining a political people.
To summarize, the revival of scholarly interest in constitutional preambles is
informed by several factors: the desire to understand the relationship between
preambles and the rest of the constitutional document; an interest in when and
why preambles are treated as a political rather than a legal part of the docu-
ment; and if preambles are a political part of the document to inquire as to what
political function, whether symbolic or substantive, they are meant to serve. If
preambles are meant to serve a symbolic function, what do they symbolize?
introduced in either House of Parliament.’ Constitution of Nepal of, , Art 116 (1), available
at < http://www.servat.unibe.ch/icl/np00000_.html > accessed 7 March 2018.
43 See eg Davis and Lemezina (n 39) 256 (‘Ultimately, the 1998 Convention Report recom-
mended that the preamble provide explicit ‘acknowledgment of the original occupancy and
custodianship of Australia by Aboriginal peoples and Torres Strait Islanders’, and ‘recognition
of Australia’s cultural diversity.’ This recommendation was accepted with ‘remarkable spirit of
unanimity’ […] [which] suggests underlying support for the imperatives of the reconciliation
movement.’).
44 By ‘peoplehood,’ I mean to refer to Rogers Smith’s usage of the term: ‘I define a group as a
political people or community when it is a potential adversary of other forms of human
association, because its proponents are generally understood to assert that its obligations
legitimately trump many of the demands made on its members in the name of other associa-
tions.’ (emphasis in original) Rogers M Smith, Stories of Peoplehood: The Politics and Morals of
Political Membership (Cambridge University Press 2003) 20. As I emphasize in this article and as
Smith notes, ‘[p]olitical peoples’ are forms of ‘imagined community,’ in the famous phrase that
Benedict Anderson […] has applied to nations.’ ibid. For the notion of peoplehood that connects
homeland and diaspora, see Adeno Addis, ‘Imagining the Homeland from Afar: Community and
Peoplehood in the Age of the Diaspora’ (2012) 45 Vanderbilt. Journal of Transnational Law 963
Larry D Kramer defines the people much more permissively (vaguely). ‘A people’ for him is ‘a
collective body capable of acting.’ Larry D Kramer, The People Themselves: Popular
Constitutionalism and Judicial Review 25 (Oxford University Press 2004).
This article argues that the most important function of preambles is their
attempt to constitute the identity of the peoples which, paradoxically, are often
also said to be the source of these very preambles. Perhaps it is in this sense that
preambles have been referred to as texts intended to ‘convey, in a nutshell, the
‘essence’ of the nation.’45
3 Preambles and the claim of constitutional

authorship
3.1 The people as authors
Many constitutions begin with the same phrase as does the United State
Constitution: ‘We, the people’46 or simply ‘The People of Country X’47 Others
use ‘nation’ instead of ‘people.’48 In some countries – Lithuania, Poland and
45 Martin Doornbos, William van Binshbergen and Gerti Hesseling, ‘Constitutional Form and
Ideological Content: The Preambles of French-Language Constitutions in Africa’ in William J
van Binsbergen and Gerti Hesseling (eds), Aspecten van staat en maatschappig in Africa: Recent
Dutch and Belgian Research on the African State (1984), found also online: < http://www.quest-
journal.net/shikanda/ethnicity/preambles/constitu.htm > accessed 7 March 2018.
46 See eg US Constitution Preamble. See also preambles to the constitutions of Albania,
Angola, Bangladesh, Belize, Benin, Burkina Faso, Burundi, Cameroon, Chad, Ecuador, Egypt,
Equatorial Guinea, Gambia, Guyana, India, Iraq, Kazakhstan, Kyrgyzstan, Liberia, Malawi,
Mongolia, Namibia, Niger, Nigeria, Palau, Pakistan, Papua New Guinea, Philippines, Russia,
Seychelles, Senegal, South Africa, South Korea, Sri Lanka, Sudan, Switzerland, Tajikistan,
Trinidad and Tobago, Togo, Tanzania, Uganda, Uzbekistan, Zambia, Venezuela.
47 Thus, the preamble to the French Constitution begins thusly: ‘The French people herby
solemnly declare their dedication to the Rights of Man and the principles of national sover-
eignty as defined by the Declaration of 1789, reaffirmed and complemented by the Preamble to
the 1946 constitution.’ LA CONSTITUTION DU  OCTOBRE 1958, preamble. (Fr). The preambles of
about 20 other constitutions use a similar phrase. Those include, Algeria, Armenia, Colombia,
Congo (Brazzaville), Estonia, Mali, Paraguay, Spain, Venezuela and Switzerland.
48 Examples are the constitutions of Croatia, Lithuania, Poland, Slovakia, and Spain. The
Ethiopian Constitution begins with the following: ‘We, the Nations, Nationalities and Peoples
of Ethiopia,’ CONSTITUTION OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA  December
1994, preamble. Apparently, there is a significant enough difference among the three designa-
tions to list them separately. Other countries, such as Cuba, Czech Republic, Lithuania, Georgia,
Serbia, and Slovakia, use ‘citizens.’ The Preamble to the Constitution of the Czech Republic
starts with ‘We, the citizens of the Czech Republic.’ ÚSTAVNI ZÁKON ČESKÉ REPUBLIKY
[CONSTITUTION] 16 December 1992, preamble.
138 Adeno Addis
Slovakia – the choice of ‘nations’ over people is intended to emphasize the

ethnic rather than the civic vision of the political community.49
Whether they conceive of them as a civic or ethnic people, the preambles
use the people’s voice directly. It is the people who ‘adopt,’50 ‘ordain,’51 or
‘approve’52 the constitution. The people do not simply passively ‘commit’ them-
selves to the particular constitution as if it were imposed from above. Rather,
they give it to themselves. Ownership and authorship are declared clearly and
unambiguously.
A few constitutional preambles are slightly more modest. They refer not to
the people themselves but to their representatives as authors and adopters of the
constitution.53 As a general matter, however, most constitutional preambles
attribute authorship and ownership of the document either directly or indirectly
to the people. The legitimacy of the document is tied to the supposed fact that
the people have taken ownership of it. It is not, as it used to be, ‘we, the rulers’
granting this document to ‘you, our subjects.’ Rather it is ‘we, the people’
granting it to ourselves for the purpose of collective self-binding (self-govern-
ment). But how do we understand the people? And how do preambles imagine
the identity of the people?
49 See eg Hałas (n 22); see also Zubrzycki (n 22) 643–655.

50 See the preambles to the constitutions of Afghanistan, Algeria, Armenia, Belarus, Benin,
Burkina Faso, Cuba, Czech Republic, Ethiopia, Gabon, Germany, Guinea-Bissau, Guyana,
Hungary, India (‘adopt, enact and give to ourselves this Constitution.’), Ireland (‘do herby
adopt, enact, and give to ourselves this Constitution.’), Lithuania, Macedonia, Malawi,
Moldova, Montenegro, Namibia, Niger, Pakistan (‘adopt, enact and give to ourselves this
Constitution’), Paraguay (‘approve and promulgate’), Russia, Serbia, Seychelles (‘adopt and
confer upon ourselves this Constitution as the fundamental and supreme law of our Sovereign
Democratic Republic’), Slovakia, South Africa, Sri Lanka (‘adopt and enact’), Switzerland,
Tajikistan, Turkmenistan, Ukraine, and Uzbekistan.
51 CONSTITUCIÓN ARGENTINA 1994, preamble. (The Argentinian preamble actually says ‘do
ordain, decree, and establish this Constitution for the Argentine Nation.’); US CONSTITUTION
preamble. (‘do ordain and establish’); El Salvador, Georgia, and the Philippines (‘do ordain and
promulgate this Constitution).
52 See PARA CONSTITUTION (‘approve and promulgate’).
53 Thus, the Brazilian constitution opens this way: ‘We, the representatives of the Brazilian
People, convened in the National Constituent Assembly to institute a Democratic State […].’
CONSTITUIÇÃO FEDERAL DE , preamble. Other constitutions with such reference include
those of Argentina, Bulgaria, Costa Rica and Indonesia. The Preamble to the Constitution of the
Czech Republic starts with ‘We, the citizens of the Czech Republic.’ ÚSTAVNI ZÁKON ČESKÉ
REPUBLIKY [CONSTITUTION] 16 December 1992, preamble.
3.2 The idea of constitutions as autobiographies
Before I explore how preambles paint a picture of the identity of the community
that the constitution is supposed to establish (or is a product of), I will outline in
some detail why constitutions are generally viewed as autobiographies of the
people whose political lives they are meant to regulate.
In Book 3 of The Politics, Aristotle asked: ‘On what principles ought we to
say that a state has retained its identity, or, conversely that it has lost its identity
and become a different state?’54 Now, there are a number of possible answers to
that question. A state becomes a different state if it is geographically altered,
either by becoming part of another state or by splitting into two or more states.
We saw that in Eastern Europe, especially in the Balkans, after the fall of the
Soviet Union and the Warsaw Pact.55 But, geographic boundary is not the only
or even the most important source of political identity. Thus, one answer to
Aristotle’s question is that the political identity of the state changes when the
basic document or institution on the basis of which the polity has organized
changes. Aristotle himself provides this answer: ‘The identity of a polis is not
constituted by its walls’56 and a polis may retain its physical characteristics and
yet project a different identity if its ‘scheme of composition’57 is altered. For
Aristotle, therefore, constitutions are deeply constitutive of a state’s identity.58
Constitutions are the biographies, the narratives of the identities of political
communities. Justice Anthony Kennedy of the United States Supreme Court
seemed to endorse this Aristotelian view when he observed thusly: ‘We [the
people of United States] have a legal identity, and our self-definition as a nation
is bound up with the Constitution.’59 Although the first part of Justice Kennedy’s
54 Aristotle, The Politics of Aristotle (Ernest Barker ed and trans 1962) 113.
55 Yugoslavia split into many countries following violent struggles among the various groups,
while Czechoslovakia broke into two countries and did so peacefully.
56 Aristotle (n 54) 113.
57 ibid 114. Aristotle writes the following on the same page: ‘[W]hen the constitution suffers a
change in kind, and becomes a different constitution, the polis also will cease to be the same
polis, and will also change its identity.’).
58 ibid 115 (‘[T]he criteria to which we must chiefly look in determining the identity of the state
is the criterion of the constitution.’).
59 Jeffrey Toobin and Swing Shift, ‘How Anthony Kennedy´s passion for foreign law could
change the Supreme Court’ The New Yorker (New York, 12 September 2005) 42–51 available
at < http://www.newyorker.com/archive/2005/09/12/050912fa_fact > accessed 7 March 2018.
Justice Kennedy made these remarks in an interview relating to the citation of foreign sources.
Although he is one of the Justices who has cited foreign sources and does not see any problem
with that, he also wanted to reassure critics of the practice that borrowing must be made in a
context of a firm constitutional or national identity. See also Roper v Simmons, 543 US 551,
140 Adeno Addis
statement seems to be modest and only refers to ‘legal identity,’ the second part
is more expansive; it refers to ‘our [unqualified] self-definition’ that is apparently
tied to the Constitution. There are of course often sharp differences among
members of the political community as to the nature of the Constitution and
as to how precisely it produces the political and legal identity of that commu-
nity, but for our purposes what matters is that, at least in Justice Kennedy’s
view, the constitution is a self-definition of a people.
What does it mean to say that the constitution is a ‘self-definition’ of a
people? I believe it is another way of saying that it is the autobiography of the
people. The idea of an autobiography assumes several facts. First, autobiogra-
phy claims to involve self-authorship. Autobiography, as one author put it, is
‘a self-centered business.’60 The subject attempts to narrate its own story –
who or what it is; how it became to be; and its hopes, fears and aspirations.
Second, the idea of autobiography assumes the existence of a relatively dis-
tinct subject with a degree of coherence to it over a period of time. Were it not
for that assumption, the idea of ‘the history of personality’ central to autobio-
graphy would be incomprehensible.61 Third, autobiography, like any other
biography, in fact plays a dual role: it describes the subject as it also consti-
tutes – gives coherence to – that very subject. As I noted earlier, sociolinguist
scholars refer to this simultaneous action of declaration and constitution as
‘performative.’ The late French social theorist Pierre Bourdieu,62 for example,
noted that performative discourse attempts ‘to bring about what it asserts in
the very act of asserting it.’63
Fourth, as Michael Sheringham notes, ‘[t]o write is to presuppose a subse-
quent act of reading, and the imagined reader is another manifestation of the
otherness with which the autobiographies must reckon.’64 That is, the uttering
(writing) mind anticipates the interpreting mind. After all, the autobiographer
578 (2005) (The Guarantees in the Constitution are ‘essential to our present-day self-definition
and national identity.’); for a fuller discussion of the idea of constitutional identity see Michael
Rosenfeld, ‘Modern Constitutionalism as Interplay Between Identity and Legitimacy’ in Michael
Rosenfeld (ed), Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspectives
(Duke University Press 1994). See also Michael Rosenfeld, ‘The Identity of the Constitutional
Subject’ (1994–1995) 16 Cardozo Law Review 1050.
60 Michael Sheringham, Autobiography Devices and Desires: Rousseau to Perec (Clarendon
Press 1993) vii.
61 Robert Elbaz, The Changing Nature of the Self: A Critical Study of the Autobiographic
Discourse 2 (Croom Help 1988) 2.
62 Bourdieu (n 6) 223.
63 ibid.
64 Sheringham (n 60) ix.
has to have the reader in mind when he or she writes his or her biography. I
shall explore this point later in relation to preambles.
Constitutions are no different. As I noted earlier, most claim to be authored
by the people themselves. That assertion is often set out in the preamble of the
constitution. The preambles to the constitutions of a large number of countries
start with the phrase ‘we the people’65 or its variations.66 Just like autobiogra-
phies, the claim of self-authorship is a central feature of constitutions.
Constitutional preambles also describe the subject of their concern, ‘the people,’
as if that people has had a degree of coherence and identity over a period of
time. Herein, of course, lies the paradox of constitutional identity: it seems to
assume the existence of a people that is capable of agency, while at the same
time claiming that the constitution is also establishing or constituting the
people.67 But as I have noted earlier, constitutions, like autobiographies, in
fact perform dual functions: at the same time, they are both ‘formative and
expressive of national [collective] identity.’68 Nations or peoples are described as
they are simultaneously constituted.
A constitution is both a political and a legal document. In its legal dimension,
it distributes power, prescribes procedures as to how power holders are to act,
declares that certain rights are inviolable, and the like. But as a political document,
it helps ‘to form [a] collective public identit[y].’69 Put more correctly, it is through
65 See Story (n 24). Other constitutions simply says ‘The people of x’ Thus, the preamble to the
French constitution begins thusly: ‘The French people herby solemnly declare their dedication
to the Rights of Man and the principles of national sovereignty as defined by the Declaration of
1789, reaffirmed and complemented by the Preamble to the 1946 constitution.’ LA CONSTITUTION
DU OCTOBRE , preamble. The preambles of about 20 other constitutions use a similar
phrase. Those include, Algeria, Armenia, Colombia, Congo (Brazzaville), Estonia, Mali,
Paraguay, Spain, Venezuela and Switzerland. For still others, the ‘we’ refers not to the people
directly but to their representatives. The preamble to the Brazilian is a good example. The
Preamble to the Constitution of the Czech Republic starts with ‘We, the citizens of the Czech
Republic.’ ÚSTAVNI ZÁKON ČESKÉ REPUBLIKY [CONSTITUTION] 16 December 1992, preamble.
66 See supra note 46 and accompanying text.
67 To some extent the idea of the people being authors as well as subjects of biography is no
more paradoxical than the notion of popular sovereignty: the people are both sovereign and
subjects. They command and submit at the same time. See Pavlos Elefthriadis, ‘Law and
Sovereignty’ (2010) 29 Law and Philosophy 535, 548.
68 Judith Resnik, ‘Law as Affiliation: Foreign’ Law, Democratic Federalism, and the
Sovereigntism of the Nation-State’ (2008) 6 International Journal of Constitutional Law 33, 40.
69 Breslin (n 23) 4; see also John E Finn, ‘The Civic Constitution: Some Preliminaries’ in Sotirios
A Barber and Robert P George (eds), Constitutional Politics: Essays in Constitution Making,
Maintenance, and Change 42 (2001) 42 (The ‘civic’ or political constitution ‘envisions a political
order in which constitutional questions, although partly questions of law, are fundamentally
and first questions about politics, about the broad principles and normative commitments that
142 Adeno Addis
constitutions that political communities imagine ‘a distinct form and identity.’70

Just as personal identity is forged and sustained in a narrative of the self, collective
identity (the identity of the people) is derived from a narrative of constitutional
documents, especially preambles, whether done explicitly or implicitly.
Finally, constitutions, like autobiographies, must suppose subsequent acts
of reading in the form of interpretation and enforcement. In this sense, constitu-
tions, like autobiographies, imagine readers. If we take seriously, as I argue later
that we must, the idea that ‘we the people’ refers not only to the historical
people that authored it, but to subsequent generations as co-authors (through
interpretation and enforcement), then the phrase must be viewed as referring to,
in the words of Frank Michelman, a kind of ‘transtemporal authorship.’71 That
may be the only way to resolve the tension between the need to acknowledge the
historical autobiography and the need to legitimize the authority for the present.
To summarize, constitutional preambles often attempt, at times explicitly
and at other times implicitly, to produce a political people that is both a source
and a beneficiary of the documents that follow. In the next section I shall
explore the various ways in which preambles cultivate or imagine the political
identities of political communities.
4 Imagining the people: The role of preambles

Preambles imagine the identity of the political community in various ways.
Some give an extended account of how the people came about. They narrate a
history of the people. Whether the historical account is correct or not is not the
point here. What interests us is the attempt to produce a political people by
painting a picture of a people that have existed as a unit over a period of years.72
comprise our commitments to shared community.); Sheldon Wolin, The Presence of the Past:
Essays on the State and the Constitution (Johns Hopkins University Press 1989) 9 (A constitution
not only constitutes a structure of power and authority, it constitutes a people in a certain way.
It proposes a distinctive identity and envisions a form of politicalness for individuals in their
new collective capacity.).
70 William A Galston, ‘Pluralistic Constitutionalism’ in Ellen Frankel Paul, Fred D Miller Jr and
Jeffrey Paul (eds), What Should Constitutions Do? (Cambridge University Press 2011) 228, 238.
71 Frank I Michelman, ‘Reply to Ming-Sung Kuo’ (2009) 7 International Journal of Constitutional
Law 715, 717. See also Frank I Michelman, ‘Constitutional Authorship’ in Larry Alexander (ed),
Constitutionalism: Philosophical Foundations (Cambridge University Press 1998) 64.
72 For an interesting account of a theory of people-making see Smith (n 44). Introducing his
project of developing a positive theory of people-building, Smith notes that ‘[w]e are accus-
tomed to hearing of state-building and of nation-building, but not ‘people-making’ or ‘people-
4.1 Preamble and historical identity
‘[T]he notion of identity depends on the idea of memory, and vice versa,’
observes John Gillis.73 Some preambles engage in a detailed historical account
of how the people, who are now supposedly the grantors of the constitutional
document, happen to constitute themselves as acting agents. Preambles become
the place where the past is reimagined in order to construct a usable history for
a viable constitutional identity.74 A good example is the preamble to the
Croatian Constitution. This preamble tells the story of a people which has with-
stood successive dominations from various empires or peoples since the seventh
century. Common suffering becomes the source of identity ‘the millennial
national identity of the Croatian nation,’ as the preamble notes.75 In this
sense, preambles purport to be brief political biographies of the people.
Indeed, the Croatian preamble is called ‘Historical Foundations.’
The preamble to the Algerian Constitution does something similar; it
describes Algeria’s history as ‘a long series of struggles’ and yet situates
Algeria as a land ‘at the heart of great events witnessed by the Mediterranean
area throughout history.’76 The more recent struggle against French colonialism
plays a prominent role in this history of a ‘series of struggles.’ These struggles
are narrated as both formative and identity-constituting.
The preamble to the Chinese Constitution, one of the longest, starts thusly:
‘China is one of the countries with the longest history in the world.’77 Most
would agree with this historical observation. However, the Chinese preamble
then goes on to observe that it is not just the long history that makes the Chinese
identity, but also the fact that the ‘people of all nationalities in China have
jointly created a splendid culture.’78 Now, whether or not this observation is
historically accurate is perhaps beside the point. The purpose of this assertion is
to produce a political people with sufficient moral and cultural authority to give
legitimacy to the document that follows. The narrative of the Chinese preamble
building.’ Yet most scholars agree that the creation and maintenance of political communities is
not simply a matter of creating and maintaining states.’ ibid 12.
73 John R Gillis, ‘Memory and Identity: The History of a Relationship’ in John R Gillis (ed),
Commemorations: The Politics of National Identity (Princeton University Press 1994) 3.
74 On the importance of the constitutive power of stories, see J Edward Chamberlin, If This is
Your Land, Where are Your Stories? Finding Common Ground (Vintage Canada 2003).
75 CROATIA CONSTITUTION, preamble.
76 CONSTITUTION DE LA RÉPUBLIQUE ALGÉRIENNE DÉMOCRATIQUE ET POPULAIRE
[CONSTITUTION], preamble. (Alg).
77 XIANFA [CONSTITUTION] , preamble (China).
78 ibid.
144 Adeno Addis
is performative in nature. Although the history of the people is said to be long,

apparently the only usable history begins in 1840, after which feudal China was
‘gradually reduced […] to a semi-colonial and semi-feudal country,’ and the
transformation of that semi-feudal and semi-colonial state by the ‘Revolution
of 1911, led by Dr. Sun Yat-sen, which ‘gave birth to the Republic of China.’79
According to this historical narrative, the Chinese ‘glorious revolutionary tradi-
tion’ got its most successful vindication when the Communist Party led a
revolution and established the People’s Republic of China where ‘the Chinese
People took state power into their own hands and became masters of the
country.’80
The preamble to the Chinese Constitution does three things to produce the
usable notion of a people for purposes of legitimizing the document that follows
it. It asserts the existence of a long history, which is meant to provide continuity
and stability to the subject (the people). It claims that this history was produced
by all nationalities, a claim meant to counter the charge of chauvinism and
domination by the majority Han. And it links the Mao Zedong revolution to the
Chinese people’s ‘glorious history of revolution.’ In fact, it paints the Mao-led
revolution as the highest, most successful manifestation of the revolutionary
tradition of the Chinese people. The preamble to the Chinese Constitution is
therefore a process of producing or imagining a political people from the various
groups that inhabit the vast land.
Interestingly, in the same way that the preamble to the Chinese Constitution
likens the 1949 revolution to ‘the wave upon wave of heroic struggles for national
independence and liberation’ that occurred in China’s distant past, the preamble
to the Cuban Constitution links the Cuban revolution it venerates to ‘the creative
work and the traditions of combativity, firmness, heroism and sacrifice fostered by
our ancestors.’81 According to the preamble, the Cuban revolution was not a
disruption of the people or even of their tradition, but instead an actualization
of the consistent inclination and tradition of the people.82 So, the preambles to the
79 ibid.
80 ibid.
81 THE CONSTITUTION OF THE REPUBLIC OF CUBA 1976, preamble.
82 See also HIêN PHÁP [CONSTITUTION], preamble (Viet). The preamble refers to a ‘millennia-
old history […] and civilization,’ but like the Chinese preamble the emphasis is on the last
revolution. When the history of the people in the distant past is ambiguous, preambles tend to
emphasize or even exclusively rely on the recent history to forge the new identity. The preamble
to the Eritrean Constitution is a good example. It goes at great length to tell the narrative of the
struggle against successive governments as the event that forged the national identity. The
emphasis is not on ancient history of a stable people (for that is contestable), but of a common
struggle ‘for common destiny.’ THE CONSTITUTION OF ERITREA 1997, preamble.
Chinese and Cuban Constitutions attempt to situate what appears to be a dis-

ruptive event in a continuum of revolutionary tradition.
The preamble to the Iranian Constitution is by far the longest of any con-
stitutional preamble.83 It is entirely devoted to giving an account of the Islamic
revolution that led to the downfall of the Shah government, the price the people
paid to pursue the revolution to its successful completion, and the nature and
purpose of the Islamic government that was established by the revolution.84
True, the preamble refers to a long history of the people and puts this last
revolution in the tradition of earlier movements ‘during the past hundred years,’
but it emphasizes its claim that this revolution was distinguished from earlier
movements because of ‘its ideological and Islamic nature.’85 The revolution is
painted as ‘the fulfillment of the political ideal of a people who bear a common
faith and common outlook.’86 This is not very different from the Chinese pre-
amble’s assertion of the Mao revolution as the highest manifestation of China’s
revolutionary tradition. The difference is that the Chinese preamble venerates a
secular revolutionary ideology while the Iranian preamble conceives of religious
ideology as the highest achievement of self-definition.
I shall explore in more detail the role religion plays in preambular imagining
of political identity, but for our purposes here, what is important is the historical
narrative used to paint a common identity. In the preambles to the constitutions
of China, Cuba and Iran, the most recent revolution is viewed as the fulfilment of
the ideals and aspirations of the people and as a central part of their identity.
The people are reimagined simply by being described in a particular way. What
at first appears to be a constative utterance becomes performative.
The preamble to the Iraqi Constitution also invokes history to forge a bond
among what appeared to be a fractured people, but it does so in a rather
interesting way. The identity of the people is defined in geographic terms: ‘We
are the people of the land between two rivers.’87 But soon one realizes that the
space between the two rivers becomes significant because it links the current
people to other, famous, people (apostles, imams, prophets, crafters, etc) who
lived in that particular land. The preamble, of course, does not tell us precisely
83 It runs for almost six single-spaced pages. The Greek Constitution has the shortest. It simply
says ‘In the name of the Holy and Con-Substantial and Indivisible Trinity, The Fifth
Constitutional Assembly of Greece votes [to adopt this Constitution]’.
84 QANUNI ASSASSI JUMHURII ISLAMAI IRAN [THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF
IRAN] 1980, preamble.
85 ibid.
86 ibid.
87 DOUSTOUR JOUMHOURIAT AL-IRAQ [THE CONSTITUTION OF THE REPUBLIC OF IRAQ] of 2005,
preamble. The rivers referred to here are the Tigris and Euphrates.
146 Adeno Addis
how those ancient inhabitants viewed their relationship to each other, or

whether they even saw themselves as a community of interest as the Iraqi
preamble attempts to paint the current residents to be. For the Iraqi preamble,
those historical nuances or accuracies do not really matter. The purpose of the
preamble is not to describe past events accurately, but to develop (perform) a
biographical sketch that forms the basis for a coherent people in an environment
where the current geographical entity called Iraq is defined by fracture and
incoherence. The Iraqi preamble attempts to perform the creation of an identity
through shortcut official history. The Iraqi ‘people’ imagined in the preamble is
simultaneously declared to be one with long history and impressive pedigree. In
this sense, preambular biographies are no different from any other biographies.
Michael Sheringham notes, ‘[c]ontemporary psychological investigation has cer-
tainly demonstrated that autobiographical memory plays a central role in per-
sonal identity.’88 It is no different with constitutional and communal identity,
except in this case the ‘autobiographical memory’ is performed through the
guise of a historical description of a land between two rivers.
To summarize, often preambles are utilized as means of narrating a real or
imagined historical identity of a people; a history that may be used to estab-
lish the coherence of a stable people that is capable of providing legitimacy to
a document that is meant to provide a framework for self-governance. A look
at Egypt’s latest constitution makes many of the autobiographical points I
have described in this section. The Constitution uses the biography ‘as an
inspiration, stirring up the present, and making our way to the future.’89 An
example of a usable past is the following: ‘Egypt is a gift to the Nile and the
gift of Egyptians to humanity.’90 This claim is made despite the dispute
between Egypt and Ethiopia (among others) as to how to apportion the waters
of the Nile. Egypt announces in its preambular biography that the Nile is its
gift to the world – forget that there are ten other countries that claim portions
of the river and that about eighty percent of the water and the soil comes from
Ethiopia.91 The declaration in the preamble that the Nile is ‘the gift of
Egyptians to humanity,’ although put in descriptive terms (as a constative
88 Sheringham (n 60) 289; see also Gillis (n 73) 3 (‘[T]he notion of identity depends on the idea
of memory, and vice versa. The core meaning of any individual or group identity, namely a
sense of sameness over time and space, is sustained by remembering; and what is remembered
is defined by the assumed identity.’).
89 See CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT .
90 ibid preamble.
91 ibid.
utterance), is in fact performative at its core. It is intended not just to paint an

image of an identity (a performance) for internal consumption, but also to
project a certain identity to the world at a time when the waters of the Nile are
being claimed by other river basin countries. Egypt’s historical biography
begins with the Nile but it does not end there. Egypt is painted as the cradle
of ‘revealed religions,’ from Moses and his encounter with God in the Sinai
Desert to Egypt’s role in the development of Islam. And perhaps more impor-
tantly, from a political point of view, the preamble attempts to position the
more recent revolution in Egypt as a successor in the tradition of earlier
revolutions that are regarded as having been successful.92 In the preamble
to the Iranian Constitution, Iran similarly attempts to link its revolution to
previous revolutions, although the account of the preamble to the Iranian
Constitution did not particularly believe that the earlier revolutions measured
up to the revolution that produced the current regime.93
As a general matter, linking one’s revolution to earlier revolutions (espe-
cially those deemed to have been successful) as we saw in the preambles to the
Chinese and Cuban Constitutions, serves two purposes. First, it enhances the
credibility of the narrative that the nation or the people is one organism with
an unbroken history and identity. Second, the revolution that is being
defended is placed in the tradition of the nation or the people (their ‘comba-
tivity,’ to use the Cuban description), thereby ensuring the legitimacy of the
revolution itself.
To recap, one important function of preambles seems to be to narrate a
history of the people that is taken to be centrally constitutive of their identity
(their stability as a subject) and a condition of understanding their present and
the future that they seek to create. That is, preambles narrate (perform) the
history of the people, tying together the past, the present and the future. As
many scholars have noted, the way a state or a nation represents its history
informs its relationship with other peoples, both internally and externally, that it
sees as ‘others’.94 The relationship between historical representation and iden-
tity is not hard to imagine and has been explored extensively.
92 The preamble refers to the two well-known events: the 1919 revolution that rid Egypt of
British guardianship and the 1952 revolution led by Gamal Abdel Nasser.
94 See eg, James H Liu and Dennis J Hilton, ‘How the Pat Weighs on the Present: Social
Representations of History and Their Role in Identity Politics’ (2005) 44 British Journal of Social
Psychology 537.
148 Adeno Addis
4.2 Boundaries of the people: The assertion of an extended

family
At times, preambles attempt to define the identity of the political community in

the context of other, larger, communities. Groups or individuals may view them-
selves as within the people even if they are not within the state. The Polish
Constitution, for example, imagines the people and belonging in a very interesting
way. The preamble states that ‘We, the Polish Nation, all citizens of the Republic’
are ‘[b]ound in community with our compatriots dispersed throughout the
world.’95 The Constitution of Poland considers the Polish diaspora as part of the
Polish people (community). As I have argued in an earlier work, there is a trend
now for states to reach out to their diaspora as the diaspora are also reaching back
to them.96 Increasingly, many diasporas view themselves as being within the
people, although they may be outside of the state. Many governments of home-
lands encourage this attitude. Globalization is simultaneously unsettling some
traditional forms of identities and communities while making it possible for other,
new forms of communities and identities to emerge or to flourish. Indeed, the
diaspora-homeland relationship is signaling one version of community or a people
that acts as a bridge between cosmopolitanism and nationalism. The preamble to
the Polish Constitution may become an example of how organic documents (at
least in their preambles) signal to their diaspora that they are indeed part of the
people, although outside of the state. In an era of globalization, the often assumed
link between people and territory might increasingly be relaxed.97 Some pream-
bles seem to signal in that direction. At any rate, the Polish Constitution conceives
of the people (or nation98 as the Constitution declares, using an evocative term99)
as an extended family that includes ethnic Poles – those Poles who reside outside
95 TEKST KONSTYTUCJI RZECZYPOSPOLITEJ POLSKIEJ [CONSTITUTION] , preamble.

96 Addis (n 44).
97 I have explored this issue in more detail in Adeno Addis, ‘Community and Jurisdictional
Authority’ in Gunther Handl, Joachim Zekoll and Peer Zumbansen (eds), Beyond Territoriality:
Transnational Legal Authority in an Age of Globalization 13 (Martinus Nijhoff 2012) 13.
98 For the apparently intense debate during the drafting of the Preamble as to whether the
Preamble should refer to ‘we the Polish nation,’ emphasizing the central importance of ethnicity
as a definer of the people, or whether it should simply say ‘we Polish citizens,’ imagining a civic
rather than an ethnic nation, see Hałas (n 22) 50. As it turned out, the final draft was a
compromise: It reads: ‘We the Polish Nation, all citizens of the Republic’.
99 For a useful distinction between ‘nation’ and ‘people,’ see Bernard Yack, Nationalism and
the Moral Psychology of Community (University of Chicago Press 2012); see also David Miller,
‘Reviewing Nationalism and the Moral Psychology of Community’ (2014) 42 Political Theory
384–388.
the territorial state – whether they are citizens or not. The preamble here is not
simply constative, it is performative. The assertion is not a report on the nature of
the relationship between the diaspora and the homeland; it is an assertion that
there is one people.
The notion that ‘we the people’ has an extended reach outside the territorial
state is even more encompassing in the preambles of other constitutions. The
preambles to the constitutions of several countries indicate that ‘we the people’
of a particular state are part of a larger people occupying other states. Their
identities are linked to the identity of the larger people. The constitutions of a
number of Arab countries, for example, announce that the people of the parti-
cular state is part of a larger Arab or Muslim people. Thus, Article 1 of the Qatar
Constitution, which seems to function as a sort of preamble, declares that ‘the
people of Qatar are part of the Arab nation.’100 In the preamble to the
Constitution that was in force during the Mubarak administration, ‘the people’
of Egypt were said to have declared that they ‘carry the responsibility,’ among
other things, for ‘the great march of the Arab Nation,’101 for the ‘Egyptian people
are part of the Arab Nation and work for the realisation of its comprehensive
unity.’102 And this, apparently, is their ‘call of history.’103
The preamble to the Lebanese Constitution records that ‘Lebanon is Arab in
its identity and in its association.’104 The Iraqi Constitution casts the identity of
the Iraqi people in an even larger circle, declaring Iraq to be ‘part of the Islamic
world.’105 The preamble to the Mauritanian Constitution expresses the
100 DASTŪR QATAR [CONSTITUTION] 2004, Art 1. Another example where Article 1 seems to act
as a preamble is the Romanian Constitution. See CONSTITUTIA ROMÂNIEI 2003, Art 1. As Liav
Orgad has noted, some countries ‘that do not have preambles often include introductory articles
that may be regarded, in substantive terms, as a preamble.’ See Liav (n 17) 716. Art 1 of the Qatar
Constitution is an example of that.
101 CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT of , preamble.
102 ibid Art 1.
103 ibid preamble. (‘We, the Egyptian people […] pledge indefinitely and unconditionally to
exert every effort to realize […] union, the hope of our Arab Nation, being convinced that Arab
unity is a call of history and of the future, and a demand of destiny; and that it cannot
materialise except through Arab Nation capable of warding off any threat, whatever the sources
or the pretexts for such a threat.’).
104 CONSTITUTION OF LEBANON, preamble; see also the preambles to the Constitution of
Algeria (Algeria is an integral part of ‘the Great Maghreb, an Arab land’), Bahrain (‘Aware of
our pan-Arab[ism]’), Kuwait (It is the role of the country ‘in furthering Arab nationalism’),
Morocco (The Kingdom of Morocco ‘constitutes part of the Great Arab Maghreb’), Tunisia
(Tunisia remains faithful ‘to its membership of the Arab Family’).
105 See eg, DOUSTOUR JOUMHOURIAT AL-IRAQ [THE CONSTITUTION OF THE REPUBLIC OF IRAQ]
2005, Art 3. Perhaps the specific circumstances that Iraq finds herself in (that there are Shia and
150 Adeno Addis
complicated nature of the country’s identity, mentioning the existence of many

overlapping communities.106 It reads: ‘the Mauritanian people, a Muslim,
African, and Arab people, proclaims that it will work for the achievement of
the unity of the Greater Maghreb of the Arab Nation and of Africa.’107
Several constitutions in the Arab world, therefore, signal that the people of a
particular state is part of the larger Arab people inhabiting several other states,
and thus define peoplehood in terms of ethnic origin. There is a paradox here.
As the preambles of these Arab countries paint a biography of a people that is
linked to a larger Arab people, they, at least symbolically, write the non-Arab
minorities who reside in those countries out of that biography. Public and
explicit expansion of the family goes hand in hand with the unstated but
unmistakable symbolic reduction in the body of the people.
The preambles to the constitutions of a number of African countries also
declare that the people of a particular country is part of a larger African people.
African unity is often mentioned as a goal of the particular people. The preamble
to the Cameroon Constitution, for example, declares: ‘We, the people of
Cameroon, [are] convinced that the salvation of Africa lies in forging ever-
growing bonds of solidarity among African Peoples [and] affirm our desire to
contribute to the advent of a united and free Africa.’108 Now, what is interesting
about many preambles to African constitutions that refer to African unity is that
at first glance, they appear constative rather than performative. That is, the
preambles do not assert that there is an African people or that they are part of an
African nation, but simply express their wish or hope that there will be a united
Africa. But in fact, in some circumstances the preambles contain both constative
Sunny, Arab and Kurd) made it politically and conceptually difficult to view the country as part
of the Arab people. But it becomes uncontroversial to view their identity largely through the
prism of their religion, for almost all of the citizens profess that religion. And Senegal is
committed to ‘the ideal of African Unity.’
106 CONSTITUTION OF MAURITANIA , preamble.
107 ibid.
108 Many preambles to other African constitutions make a similar declaration. Benin, for
example, proclaims ‘attachment to the cause of African unity’ and pledges ‘to leave no stone
unturned’ to realize it. The Central African Republic ‘[a]ffirms its willingness to co-operate […] to
work for African Unity.’ Chad proclaims its ‘commitment to the cause of African unity.’ The
people of Congo (Kinshasa) are ‘driven by the will to see African unity.’ The Cȏte d’Ivoire
preamble commits the people to the ‘promotion of regional and sub-regional integration, in
view of the constitution of African Unity.’ The People of Guinea affirm their ‘attachment to the
cause of African Unity’ while the Liberian People are ‘fully mindful of their obligation to
promote African Unity.’ The preamble to the Niger Constitution dedicates the people to the
promotion of inter-African solidarity.’ And Senegal proclaims its dedication to the ideal of
African unity.
and performative aspects to them. Thus, when the preamble to the Congolese
(Kinshasa) Constitution declares that the Congolese people are ‘driven by the
will to see all African states united’109 or when the preamble to the Liberian
Constitution declares that the Liberian people are ‘fully mindful of our obliga-
tion to promote African Unity,’110 they seem to be performing an act (a promise)
more than describing a state of affairs. These utterances produce effects beyond
the dissemination of truth or falsity.
Put simply, constitutions sometimes attempt to define the people both in its
particularity and as part of a larger community or people, whether referring to
the diaspora or the people of other territorial units who are viewed as ethnic,
racial, or linguistic kin. To repeat, whether that assertion is in fact historically or
institutionally accurate is beside the point. What is important for our purposes is
that the declaration is an attempt at collective imagining. Imaginaries are
neither false nor true; they simply are.111 They ‘call […] into being the very
practices being envisioned.’112
As the preambles to the Polish Constitution and the constitutions of many
Arab countries show, a territorial people may not encompass the entire people.
A nation or a people is apparently not necessarily confined to a particular
territory. The current chaos in the Middle East where existing political bound-
aries are under constant threat might serve as a reminder of that.113 What makes
the Polish diaspora and Poles within Poland one nation or what makes all Arabs
part of one Arabic nation is never explained.114 But the point of these
109 CONSTITUTION OF THE DEMOCRATIC REPUBLIC OF THE CONGO 2005, preamble.

110 CONSTITUTION OF LIBERIA , preamble.
111 The notion of social imaginaries is related to Benedict Anderson’s notion of ‘imagined
communities.’ See Benedict Anderson, Imagined Communities: Reflection on the Origin and
Spread of Nationalism (Rev. ed., Verso 1991) 6. Anderson argued that the nation is an imagined
community. But Anderson also made the larger point that ‘all communities larger than primor-
dial villages of face-to-face contact (and perhaps even these) are imagined.’ They are imagined
because members of those communities ‘will never know most of their fellow, meet them, or
even hear of them, yet in the minds of each lives the image of their communion.’ And
‘communities are to be distinguished not [in terms of] their falsity/genuineness, but by the
style in which they are imagined.’ But cf Charles Taylor, Modern Social Imaginaries (Duke
University Press 2004) 183.
112 John Grant, ‘On the Critique of Political Imaginaries (book review)’ (2014) 13 European.
Journal of Political Theory 408.
113 The assertion of the Islamic State of Iraq and Syria (ISIS), with unimaginably brutal acts, of
the existence of a caliphate is premised on the proposition that there really is one people
though fragmented by several territorial boundaries.
114 Israel goes even further. Not only does Israel view Jews all over the world as part of ‘we the
people’ for the purpose of extending the right of return and citizenship, but it also extends the
152 Adeno Addis
declarations is not to describe a historical event but to constitute a people

through acts of declarations.
At times, preambles may signal that the people in another territory which
has constituted itself as another people is in fact properly seen as part of the
people of the preamble state. This often happens when there is a contested
partition. The West German (Federal Republic of Germany) Constitution had a
provision in its preamble that the people in what was then East Germany
(German Democratic Republic) were really part of one German people, even
though East Germany had constituted itself as another people and there was
nothing in its constitution to indicate any interest in being seen as part of a
larger German people.115 As it turned out, of course, after the collapse of the
Soviet Union and the removal of the regimes of its Eastern European client
states, East and West Germany unified. Perhaps the more proper description of
what happened in Germany is not ‘unification,’ but the absorption of East
Germany into West Germany. Korea, like Germany, was partitioned following
WWII and the division that ensued between the Soviet Union and the West.
South Korea was established with the support and protection of the West, while
North Korea was supported by the Soviet Union and other socialist states. Both
preambles to the South and North Korean Constitutions claim that there is one
Korean people (performative) and unification is the goal (constative). The pre-
amble to the South Korean Constitution reads: ‘We the people of South Korea […]
have […] assum[ed] the mission of democratic reform and peaceful unification of
our homeland […]’116 The preamble to the North Korean Constitution announces
that Comrade Kim Il Sung (the founding leader) regarded ‘the reunification of
protection of its criminal law extraterritorially to non-citizen Jews in other parts of the world. An
attack on a Jew anywhere because he is a Jew is viewed as an attack on the people itself to the
extent that the attack is identity-based, an identity that links and defines the people. See Penal
Law (1977), 5737-1977, Art 2 § 13 (b) (amended 194) (Isr) (Israeli courts have jurisdiction in
relation to ‘extraterritorial crimes’ committed against ‘the life of a Jew, his body, his health, or
his property, because he is a Jew, or the property of a Jewish institution, because it is Jewish.’).
115 The preamble reads: ‘This Constitution is thus valid for the entire German People.’ And ‘the
entire German people is called upon to accomplish, by free self-determination, the unity and
freedom of Germany.’ In a case involving a 1972 treaty between FRG and GDR on the relation-
ship between the two governments, the German Constitutional Court had to consider whether
the treaty was inconsistent with the preamble to the extent that this tends to undermine the
notion of one country. The Court ultimately determined it did not, but in the process declared
that ‘reunification is a constitutional command.’ See BVerfGE 36, 1 2 BvF 1/73
Grundlagenvertrag-decision East-West Basic Treaty, available at < http://www.utexas.edu/law/
academics/centers/transnational/work_new/german/case.php?id = 589 > accessed 7 March 2018,
cited in Orgad (n 17) 724.
116 DAEHANMINKUK HUNBEOB [CONSTITUTION], preamble (emphasis added).
the country as the supreme national task’ and devoted ‘all his efforts and care
for its realization.’117 While it is clear that national reunification is regarded as a
supreme national goal, it is not quite clear what the conditions are under which
unification will be acceptable. The preamble notes that Kim Il Sung has ‘set forth
the fundamental principle and ways of national unification.’118 This seems to
indicate that there is no compromise on the ‘principle and ways of national
unification.’
The preamble to the Chinese Constitution declares that ‘Taiwan is part of the
sacred territory of the People’s Republic of China. It is the inviolable duty of all
Chinese people, including our compatriots in Taiwan, to accomplish the great
task of reunifying the motherland.’119 Taiwan’s position on the matter is often
ambiguous. It has traditionally considered itself as part of the Chinese territory,
except that it saw itself as the legitimate seat of government for all of China. But
as reality started to sink in, and the idea of the government of Taiwan as the true
successor to the Chinese Republican government that lost to Mao became
untenable fiction, Taiwanese leaders have at times signaled their desire for
independence and other times have simply sought to ensure that the status
quo continues. At any rate, what is important for our purposes here is China’s
preambular claim that another entity, which has defined itself as ‘independent,’
is indeed part of its territory. The Chinese people are imagined to encompass
those who live in Taiwan.
The idea of viewing a people as part of another people, and defining its
identity in the context of this relationship, is no different from how individual
identities are formed and cultivated. It is in the context of relationships with
others, whether by imitating or incorporating them, or by reacting against them,
that individual and political identities develop.120 If they imitate the Other, then
the Other becomes one’s horizon of significance.121 At other times, however,
nations, like individuals, forge their identity by reacting against the Other. This
second process is as important as the first in the shaping of national identities.122
117 DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA’S SOCIALIST CONSTITUTION, preamble.

118 ibid.
119 XIANFA [CONSTITUTION] , preamble.
120 See Adeno Addis, ‘Role Models and the Politics of Recognition’ (1996) 144 University
Pennsylvania Law Review 1377.
121 Charles Taylor, The Ethic of Authenticity (Harvard University Press 1992) 37 (‘Things take on
importance against a background of intelligibility. Let us call this a horizon. It follows that one
of the things that we can’t do, if we are to define ourselves significantly, is to suppress or deny
the horizons against which things take on significance for us.’).
122 See Adeno Addis, ‘Liberalism, Communitarianism, and the Rights of Ethnic Minorities’
() 67 Notre Dame Law Review 615.
154 Adeno Addis
4.3 The preamble as an account of the emergence of a new

people
The poignant and evocative preamble to the South African Constitution notes
that ‘We, the people of South Africa’ recognize ‘the injustice of our past’ and
believe that ‘South Africa belongs to all who live in it, united in our diversity.’123
The preamble also declares that the constitution is adopted as the supreme law
of the land so as to ‘[h]eal the divisions of the past’ by establishing a society
‘based on democratic values, social justice and fundamental human rights.’124
The preamble tells a story of the country’s past as well as the alternative course
that the country seeks to follow in the future. ‘The country belongs to all who
live in it’ is a statement that captures both the horrible past where the majority
was not considered part of the people, as well as imagining a future where the
‘people’ in the new South Africa includes the white minority as well.125 As Beau
Breslin rightly notes, the preamble to the South African Constitution carefully
records the country’s tragic past to be overcome instead of remaining in the
realm of abstract and universal statements on liberty, equality and justice.126 The
preamble to the South African Constitution shows that preambles can be places
where the identity of the past makes a formal exit and the reconstituted identity
is ushered in. It signals that the constitutional document is a transformative
document (and interestingly the preamble is followed by ‘founding provisions:
human dignity, equality, non-racialism and non-sexism, and universal adult
suffrage’127) and perhaps the interpretation of the constitution will be oriented
by that attitude. The preamble does double duty: it describes as it also imagines
the new people.128
The discussion in Australia towards the end of the last century regarding the
need for a new preamble (to which I referred earlier) is a fascinating example of
how preambles are viewed as important statements of the identity of ‘we the
people.’129 The case for a new preamble to the Australian Constitution went like
123 SOUTH AFRICAN CONSTITUTION 1996, preamble.

124 ibid.
125 ibid.
126 See Breslin (n 23) 57.
127 SOUTH AFRICAN CONSTITUTION 1996, preamble.
128 See Breslin (n 23) 148 (‘To establish a viable constitutional self-identity, the real must be
supplemented by the ideal or—facts must be enriched by counterfactual imagination.’); see also
Robert Cover, ‘Violence and the Word’ (1986) 95 Yale Law Journal 1601, 1604.
129 See Bruce Stone, ‘A Preamble to the Australian Constitution: A Criticism of the Recent
Debate’ (2000) 15 Australian Journal of Political Science 291; see also McKenna, First Words: A
Brief History (n 39); McKenna et al, First Words: The Preamble (n 39) 382.
this: the preamble should make reference to the diverse population in the
country, and should make a special reference to the Indigenous Peoples,
Australian Aborigines, whose recognition as part of the people has always
been rather doubtful, both as a symbolic and substantive matter.130 The current
preamble, being part of an Act of the British Parliament,131 does not sufficiently
signal the history of ‘we the people’ both as a diverse and fully independent
entity and as a country built on the grief and dispossession of the Indigenous
People. As I noted earlier, the Australian debate is interesting in another sense.
There was political consensus of the need for a new preamble even though there
was no consensus about a new constitution (a constitution establishing a
republican form of government). The new preamble was to act as a foreword
to the existing constitution. The idea that one could in fact graft a new preamble
to an existing constitution can be made sense of only if preambles are viewed as
having a much larger purpose than one of simply introducing the constitution
that they precede. That purpose, I have argued throughout this paper, is one of
defining or asserting the nature of ‘we the people.’ As the preamble to the South
African Constitution as well as the debate in Australia about a new preamble
indicate, some preambles seek to make an explicit statement as to who is
included in ‘we the people.’ The substantive rights, obligations and structures
that the constitution sets out following the preamble are apparently not a
sufficient basis for the process of imagining the nature of ‘we the people.’
4.4 Preamble as signals that a people has changed

The preamble to the German Basic Law opens unlike any other by declaring the
‘German People’s’ responsibility not only to God but ‘to men’ as well.132 ‘Men’
here does not seem to refer to German citizens, but to members of the interna-
tional community or humankind generally. This is followed by the pledge ‘to
130 Since the famous Mabo decision of the Australian High Court, discussion about the need
for a new preamble had tended to focus on how the preamble could or would recognize the
importance of the First People in the understanding of ‘we the people of Australia.’ See Mabo v
Queensland (1992) 175 CLR 1; see also McKenna et al, First Words: The Preamble (n 39) 394.
131 The Australian Constitution is an Act of the British Parliament. Indeed, the Constitution was
attached to the British Act which had ‘covering clauses’ introducing the Constitution. The
preamble to the British Act has often been considered the preamble to the Australian
Constitution.
132 GRUNDGESETZ DER BUNDESREPUBLIK DEUTSCHLAND [CONSTITUTION], preamble (‘Conscious
of their responsibility before God and men […].’).
156 Adeno Addis
serve world peace.’133 The statement about the desire to serve world peace and
the feeling of a responsibility to ‘men’ is surely partly a description of the then
recent past and partly a declaration that the German people is constituting itself
in a different manner.134 Interestingly and perhaps not surprisingly, the
Constitution of Japan is another whose preamble is preoccupied with the idea
of peace. The preamble reads: ‘We, the Japanese people, desire peace for all time
[…]. We desire to occupy an honored place in an international society striving for
the preservation of peace, and the banishment of tyranny and slavery, oppres-
sion and intolerance for all time from the earth. We recognize that all peoples of
the world have the right to live in peace, free from fear and want.’135 There is no
other preamble with such a sharp focus on peace. Indeed, interestingly, the
focus on peace is linked to the need for the observance of and compliance with
the ‘laws of political morality’ which are understood to be ‘universal.’136
Whether in their commitment to peace, political morality or in their announce-
ment of their obligation to God and men, the preambles to the German and
Japanese Constitutions link themselves to humanity and universal values and
define their identities in that context.
133 ibid.
134 ibid ‘Conscious of their responsibility before God and men, moved by the purposes to serve
world peace as an equal part in a unified Europe, the German people have adopted, by virtue of
their constituent power, this Constitution.’).
135 KENPÖ [CONSTITUTION] preamble. The preamble is reinforced by Article 9 of the
Constitution which reads: ‘(1) Aspiring sincerely to an international peace based on justice
and order, the Japanese people forever renounce war as a sovereign right of the nation and the
threat or use of force as means of settling international dispute. (2) In order to accomplish the
aim of the preceding paragraph, land, sea, and air force, as well as other war potential, will
never be maintained. The right of belligerency of the state will not be recognized.’ ibid Art 9.
136 ibid preamble (‘We believe that no nation is responsible to itself alone, but that laws of
political morality are universal; and that obedience to such laws is incumbent upon all nations
who would sustain their own sovereignty and justify their sovereign relationship with other
nations.’). Apparently, there is currently a move from the government of Prime Minister Shinzo
Abe to ‘start the process of revisiting Japan’s Constitution’ to make it more responsive to current
security threats. It is not clear that the change will include rewriting Article 9 of the Constitution
which ‘prohibits the use of armed force in resolving international disputes’ or rewriting the
preamble which makes pacifism a central principle of the constitutional order. It is, however,
clear that the pacific identity which apparently still has strong popular support is being
questioned as unresponsive to current circumstances. See Martin Fackler, ‘Abe Is Said to
Have Plans to Revise Pacifist Charter’ New York Times (New York, 26 February 2015) A9.
Another way to look at it is that the notion of pacific identity that the constitutional order
espoused in the context of American protection is being reevaluated in the context of a different
Asian political order (the rise of China) and the perception of a declining US global power (and
hence protection).
In the cases of Germany and Japan, the issue of authorship is of course not
beyond dispute. Arguments can be made and have been made that the two con-
stitutions were essentially written, or at least dictated, by occupying powers.137 The
argument has some truth to it, especially in relation to the Japanese Constitution.
Even if that were the case, however, it does not undermine the argument that the two
documents show that the two people agreed or were dictated to view themselves in
these particular ways. After all, not all identities are the result of the volitional and
autonomous acts of the identity holder. Some identities are the result of an unequal
encounter with the Other, as the relationship between the colonizer and the colo-
nized attests.138 So, the fact that the two documents were drafted in the context of a
recently concluded war which the two countries lost (and may not therefore had
total control in the development of the documents) does not undermine the argu-
ment that these documents may be viewed as biographical sketches of the two
peoples at the time.139 Again, the analogy is how individual identities develop.
Individuals are not always able to develop their identities in the context of volitional
and autonomous acts. They also do so in the context of constrained and even
controlled environments where they are as much objects of action as they are active
subjects. If identities are formed relationally, as I have argued elsewhere,140 then
how one (individual or state) responds to the constrained environment that one
finds oneself in is an aspect of the process of identity formation.
4.5 Preambles and the role of religion: Imagining the moral

universe
Thus far, we have explored the role of history, ethnicity, and race in terms of
how preambles define who the people are. But of course, a people is not defined
by its relationship with other peoples alone (either negatively or positively), but
137 Thus, for example, ‘the immediate impetus for [the famous] Article 9,’ the peace provision,
‘likely came from SCAP, Douglas MacArthur himself.’ Chaihark Hahm and Sung Ho Kim, ‘To
Make “We the People”: Constitutional Founding in Postwar Japan and South Korea’ (2010) 8
International Journal of Constitutional Law 800, 815.
138 For moving accounts of that relationship see Frantz Fanon, The Wretched of the Earth
(Grove Press 1963); see also Albert Memmi, The Colonizer and the Colonized (Orion Press ).
139 Interestingly, even though the Japanese Constitution was shaped by the victorious power,
the United States, the Japanese still view their constitution as embodying their values. See
Rogers M Smith, Political Peoplehood: The Roles of Values, Interests, and Identities (University of
Chicago 2015) 250 (‘[M]any Japanese see their postwar constitution as embodying values and
traditions they cherish, though it was strongly shaped by US occupying forces.’).
140 Addis (n 122).
158 Adeno Addis
also by its relationship with the spiritual world, as well. What the article will do
in this section is explore the role that religion plays in the formulation of
identities. The way that the relationship of the people to religion is expressed
in preambles seems both descriptive (constative) and performative. Sometimes,
religion is expressed as if it supplied an external source of authority to the
emergence of the people.141 Other times, religion is simply viewed as an internal
to the people, as a constituent part of declaring peoplehood – a way in which a
people imagines itself.
Many constitutional preambles refer to religion and to the role it is imagined
to play in the life of the people. The preambles to the constitutions of about
seventy countries mention religion in one way or another.142 Some simply assert
141 When the Founders of America invoked ‘the laws of nature and of nature’s God’ in the
Declaration of Independence, the utterance seemed to be constative and suggested that they
were appealing to an external authority for legitimacy, ‘a transcendent source of authority,’ as
Hannah Arendt put it. See Hannah Arendt, On Revolution (Penguin Books 1963) 192–193. Arendt
attributes this attempt to appeal to external authority to the Founders’ underestimation of the
power of their performatives (the declaration of ‘one people’ dissolving bonds with another
people’), which she thought would have been (and was in fact) sufficient authority. That speech
act in itself brings ‘something into being which did not exist before.’ Hannah Arendt, Between
Past and Future (1977) 151. For Arendt, the importance of the Declaration of Independence
consists ‘[not] so much in its being ‘an argument in support of an action’ as in its being the
perfect way for an action to appear in words […]. And since we deal with the written, and not
the spoken word, we are confronted with one of the rare moments in history when the power of
action is great enough to erect its own monument.’ Arendt, On Revolution, ibid 130. The
interesting thing about the Declaration is that even statements that at first glance appear to
be constative (and an appeal to external authority for legitimacy) are in fact performative in
nature. Thus, when Jefferson writes, ‘We hold these truths to be self-evident,’ rather than
asserting that, he is engaging in performative discourse. ‘We hold,’ Arendt says, constitutes
the only sort of power that is real and legitimate, the kind of power that ‘rest[s] on reciprocity
and mutuality’ emerges only ‘when men join themselves through promises, covenants and
mutual pledges.’ ibid 181, 175. The Founder’s assertion that ‘we hold these truths to be self-
evident’ cannot be established as true or false; it is both a promise and a declaration.
142 Albania, Algeria, Afghanistan, Argentina, Bahamas, Bahrain, Belize, Bhutan, Bolivia,
Brazil, Canada, Cayman Island, Colombia, Costa Rica, Dominican Republic, East Timor,
Ecuador, Egypt, El Salvador, Equatorial Guinea, Fiji, Gambia, Germany, Greece, Guatemala,
Honduras, Indonesia, Iran, Iraq, Ireland, Kenya, Kiribati, Kuwait, Liberia, Lichtenstein,
Madagascar, Marshal Islands, Mauritania, Morocco, Nauru, Nicaragua, Nigeria, Pakistan,
Palau, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Rwanda, Samoa,
Seychelles, Somalia, Sudan, Suriname, Swaziland, Switzerland, South Africa, Switzerland,
Togo, Trinidad and Tobago, Tunisia, Tuvalu, Ukraine, United Arab Emirates, Vanuatu,
Venezuela, and Zambia. As an example, the preamble to the Canadian Charter of Rights and
Freedoms reads thusly: ‘Whereas Canada is founded upon the principles that recognize the
supremacy of God and the rule of law.’ Canadian Charter of Rights and Freedoms, preamble. Just
that ‘we the people’ acknowledge the supremacy of God,143 have faith in him,144
trust in him,145 seek his blessings,146 and his protection.147 Many of the pream-
bles that mention God or the Almighty seem to suggest that the role of religion in
the life of the collectivity is rather perfunctory.148 Of course, to say that religion
plays a marginal role in the life and identity of the collectivity is not to make the
claim that individuals in that collectivity do not give religion a central role in
their individual lives and/or identities. It is the asserted identity for the collec-
tivity, not for the individual, that concerns us here.
Other preambles, however, refer to religion in a manner that suggests
that the religious narrative is an important part of the identity of the nation
or the people. The preamble to the Irish Constitution, for example, signals
the centrality of religion (specifically, Catholicism) in the life of the nation
with the invocation of ‘the Most Holy Trinity, from Whom is all authority and
to Whom, as our final end, all actions both of men and States must be
referred.’149 This declaration sounds as if it is a serious meditation on
religion rather than a passing reference to God or Almighty, as is the case
with many other constitutions. The preamble then links the people of Ireland
in passing, the constitutions of all fifty states of the United States acknowledge God (and almost
all in their preambles), whether they ‘invoke his favor’ (Alabama) or are ‘grateful’ to him for one
thing or another (eg Arizona, Arkansas, California), or rely upon his ‘protection and guidance’
(Georgia, Oklahoma, and West Virginia), acknowledge his ‘grace and beneficence’ (Texas),
implore his aid and direction (Maine and Massachusetts), or have ‘profound reverence’ for
him (Colorado and Missouri). The Constitutions of New Hampshire, Vermont and Virginia do
not have preambles. Actually, Article 1 of the Virginian Constitution has a preamble, but no
preamble to the whole constitution. The preambles to the Oregon and Tennessee Constitutions
do not mention God or religion. Interestingly. See Preambles to state constitutions < http://
ballotpedia.org/wiki/index.php/Preambles_to_state-constitutions > accessed 7 March 2018.
143 See eg the constitutions of Antigua and Barbuda, Bahamas, Barbados, Belize, Dominican
Republic.
144 See eg the constitutions of Afghanistan, Albania, Bangladesh, East Timor, Madagascar,
Mauritania, Rwanda.
145 See eg the constitutions of Bangladesh, Mauritania, Rwanda.
146 See eg the constitutions of Bahrain, Fiji.
147 See eg the constitutions of Argentina, Brazil, Colombia, South Africa (‘May God protect our
people.’).
148 See eg Albania (‘We, the people of Albania, [have] faith in God and/or other universal
values.’), Argentina, Indonesia, Brazil (We, the representatives of the Brazilian People,
assembled in the National Constituent Assembly to institute a Democratic States for the
purposes of […] [promulgating], under the protection of God, this Constitution of the Federal
Republic of Brazil’), Fiji (‘We, the people of the Fiji Islands, seeking the blessings of God who
has always watched over these islands: […]’), and Egypt.
149 BUNREACHT NA ÉIREANN [CONSTITUTION] 1937, preamble.
160 Adeno Addis
to one of the Trinity by declaring that ‘We, the people of Éire, humbly
acknowledge all our obligations to our Divine Lord, Jesus Christ, who sus-
tained our fathers through centuries of trial.’150 Irish courts have observed
that this commitment to faith is an important defining feature of the people.
In Quinn’s Supermarket v Attorney General, Walsh, J observed: ‘[T]he
Constitution […] reflects a firm conviction that we are a religious people
[…] [T]he preamble acknowledges that we are a Christian people.’151 Note
here, the reference is not to individuals, but to a people; the collectivity has
a religious identity. The Irish Constitution and the Irish courts are clearly not
denying that there are individuals amongst the people who are not
Catholic,152 or even religious. They simply desire to speak of the separate
collective identity. The preamble to the Zambian Constitution makes the
above point clear. It declares ‘the Republic a Christian nation’ while appar-
ently ‘upholding the right of every person to enjoy that person’s freedom of
conscience or religion.’153 Of course, neither the Irish nor the Zambian
Constitutions tell us how the idea of a Christian nation manifests itself and
how that posture is to be reconciled with the freedom of religion that is
apparently guaranteed to every individual.154 But it is clearly the case that
the preambles to both constitutions make a distinction between individual
and national commitments. The collectivity is to view itself as possessing a
specific religious identity, while individuals are apparently permitted to
define their religious identities in whatever way they wish. This attitude or
approach suggests that the identity of the collectivity is not simply the sum
total of the identities of individual members. There is nothing conceptually
incoherent about viewing collective identities as being separate and apart
from the sum total of individual identities or commitments.155 Yet, it is not
quite clear how one conceives of the relationship between the two; at least,
the two constitutions do not indicate how that might work.
150 ibid.
151 See Quinn’s Supermarket v Attorney General (1972) IR 1, cited in Teresa Iglesias, ‘The
Dignity of the Individual in the Irish Constitution: “The Importance of the Preamble”’ (2000)
89 Irish Quarterly Review 19, 29.
152 After all, as Sanford Levinson notes, Ireland’s Capital and its largest city once had a Lord
Mayor who was Jewish. See Levinson, Do Constitutions Have a Point? (n 21) 170.
153 CONSTITUTION OF ZAMBIA , preamble.
154 Much less schizophrenic is the preamble to the Constitution of the Bahamas, which
declares that the people have ‘abiding respect for Christian values.’ THE BAHAMAS
CONSTITUTION 1973, preamble.
155 See Addis, Individualism (n 122).
The preamble to the constitution of Pakistan similarly details a religious

commitment, though of course to a different ‘Almighty.’156 It opens thusly:
‘Whereas sovereignty over the entire Universe belongs to Almighty Allah
alone, and the authority to be exercised by the people of Pakistan within the
limits prescribed by Him is a sacred trust […] Whereas the Muslims shall be
enabled to order their lives in the individual and collective spheres in accor-
dance with the teaching and requirements of Islam as set out in the Holy Quran
and Sunnah […] Now, therefore, we the people of Pakistan, Cognisant of our
responsibility before Almighty Allah and men […] do hereby, through our
representatives in National Assembly, adopt, enact and give to ourselves, this
Constitution.’157 Note, the Pakistani Constitution simultaneously asserts ‘the
authority of the people’ and the fact that authority is to be exercised ‘within
the limits prescribed by [Allah].’158 Indeed, the sovereignty of the people is to be
understood as a ‘sacred trust’ from ‘Almighty Allah’159; the people rely on an
external being to legitimize their authority.
Some segments of the Pakistani polity seem to take the notion of ‘sacred
trust’ as an affirmation that no secular governing arrangement, however con-
sistent with the ideal that the people are in control of their destiny and their
capacity for self-determination, can be at odds with Allah’s word, the Koran, as
they understand it. The rather turbulent history of the Pakistani State can partly
be understood as a reflection of this tension, a sovereign people whose sover-
eignty is actually a ‘sacred trust’ but where the meaning and scope of that ‘trust’
are points of contention.160
156 Pakistan’s Almighty is Allah. Of course, the Christian God and the Moslem Allah do not
exhaust the sources of religious inspiration and devotion. Thus, the preamble to the Bhutan
Constitution announces that the people of Bhutan are: ‘BLESSED with the luminous benedic-
tions of the Triple Gem, the protection of our guardian deities.’ CONSTITUTION OF BHUTAN 2008,
preamble.
157 PAKISTAN CONSTITUTION, preamble.
158 See ibid. The preamble to the Samoan Constitution makes a similar point. It reads: The
sovereignty over the Universe belongs to the Omnipresent God alone, and the authority to be
exercised by the people of Western Samoa within the limits prescribed by His commandments.’)
CONSTITUTION OF SAMOA , preamble.
159 But cf KENPÖ [CONSTITUTION] preamble. (‘Government is a sacred trust of the people, the
authority for which is derived from the people, the powers of which are exercised by the
representation of the people, and the benefits of which are enjoyed by the people.’).
160 For a detailed statement about how this tension has existed from the founding of the State
and has defined developments in the country, see Muhammad Qasim Saman, ‘Islamic
Modernism and the Shariʽa in Pakistan’ (The Dullah Albaraka Lectures on Islamic Law and
Civilization) in Occasional Papers (Yale Law School 2014) 8.
162 Adeno Addis
Iran is another example where religion is, at least publicly, said to be central
to the life of the people as a corporate body. It is, of course, well known that the
Iranian government is a self-described Islamic government and the preamble to
the constitution of Iran affirms that outlook to governance. It reads:
The Constitution of the Islamic Republic advances the cultural, social, political, and
economic institutions of Iranian society based on Islamic principles and norms which
represent an honest aspiration of the Islamic Ummah.161 This aspiration [which is a
promise and performative] was exemplified by the nature of the great Islamic Revolution
of Iran and by the course of the Muslim people’s struggle, from its beginning until victory,
as reflected in the decisive and forceful calls raised by all segments of the populations.162
The preamble notes that previous Islamic struggles and movements fell short of
achieving their goals and fell ‘into stagnation due to departure from genuine
Islamic position.’163 The preamble not only asserts that the Iranian people aspire
to ‘Islamic Ummah,’164 but it also suggests that past struggles fell short of
achieving their goals because they were not sufficiently committed to this
goal. The preamble highlights the central role religion is supposed to play in
the identity of the Iranian people, but it also echoes the preambles to the
Chinese and the Croatian Constitutions by creating a usable history as an official
source of legitimacy to current arrangements. The people is imagined in such a
way that it is considered both a source and a product of the document.
Other constitutions have left purposely vague the role of religion in the
formation of the national identity. The ambiguity itself apparently defines the
identity. Thus, for example, the reason why Israel did not adopt a written
constitution was apparently because of division among the founders as to the
precise role religion was to play in the life of the new nation. As Hanna Lerner,
in a fascinating account of constitution-making in Israel and other deeply
divided societies, has noted, a major reason why the Israeli Knesset did not
adopt a written constitution and instead preferred ‘an incremental approach’ to
constitutional design was because of ‘the inability of the framers to reach
consensus regarding appropriate relationship between Jewish religious law
161 The phrase ‘Islamic Ummah’ refers to the Islamic community or people, considered to
extend from Mauritania to Pakistan. Cyril Glassé, The New Encyclopedia of Islam (Rowman and
Littlefield 2002) 464.
163 ibid.
164 ibid.
and the institutions of the modern state.’165 In other words, the rift between a
secular and a religious vision of the State led to ‘a strategy of avoidance.’166 This
is what I have referred to elsewhere, in another context, as a strategy of
incompletion.167
Still others announce in their preambles the importance of ‘a spirit of toler-
ance and religious coexistence’168 or even exclude specifically any role for religion
in the people’s public life. An example of the latter is the preamble to the
Tanzanian Constitution. Part of the preamble reads: ‘This Constitution is enacted
by the Constituent Assembly of the United Republic of Tanzania, on behalf of the
people, for the purpose of building such a society and ensuring that Tanzania is
governed by a Government that adheres to the principles of democracy, and
socialism and shall be a secular state.’169 The preamble to the Constitution of
Turkey makes ‘the principle of secularism’ a central defining feature of modern
‘Turkish national interest’170 and states that ‘there shall be no interference what-
soever by sacred religious feelings in State affairs and politics […].’171
165 See Hanna Lerner, Making Constitutions in Deeply Divided Societies (Cambridge University
Press 2011) 51–52. The tension is also evident in the way Israel currently and formally describes
itself: a democratic Jewish state. See ibid. at 54 (‘The wording of the [Israeli Declaration of
Independence] represented a compromise between religious and secular worldviews regarding
the character of the Jewish State [referring to the State as ‘Jewish and democratic’]’. The
ambiguous terminology (‘Jewish and democratic’) facilitated the compromise as ‘it could be
interpreted in a variety of ways.’ ibid at 54. Similarly, the Iraqi constitution declares Islam to be
‘the official religion of the State’ and a ‘fundamental source of legislation.’ DOUSTOUR
JOUMHOURIAT AL-IRAQ [THE CONSTITUTION OF THE REPUBLIC OF IRAQ] of 2005 Art 2. No law
that contradicts ‘the established provisions of Islam’ will be valid. But in the same section the
constitution also provides that ‘no law that contradicts the principle of democracy may be
established.’ ibid. Now, to the extent that the principles of Islam and democracy can be said to
be contradictory, at least some of the time, the existence of the two provisions side by side is, to
say the least, rather ambiguous.
166 Lerner (n 165) 51.
167 Addis (n 122).
168 KUSHTETUTA E REPUBLIKËS SE SHQIPËISË [CONSTITUTION], preamble (Alb).
169 CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA , preamble. (emphasis added).
Less directly, other countries have emphasized the spirit of religious tolerance. See eg, Albania
(announcing in its preamble the ‘spirit of tolerance and religious co-existence.’), KUSHTETUTA E
REPUBLIKËS SE SHQIPËISË [CONSTITUTION], preamble. (Alb.). Bangladesh (pledging the high
ideals of nationalism, socialism, democracy and secularism.’). BANGLADESH. CONSTITUTION,
preamble. It is interesting to note here that Bangladesh is one of the rare Muslim majority
countries in which Islam is not mentioned in the preamble at all.
170 TÜRKIYE CUMHURIYETI ANAYASAI [CONSTITUTION], preamble. Whether Turkey under cur-
rent conditions can be said to have adhered to its secular creed is not certain.
171 ibid.
164 Adeno Addis
To summarize, most preambles refer to religion and to the role it is imagined

to play in the life of the people.172 Some are put in descriptive and constative
terms, others as declarative and performative. The degree to which religion is
thought to define the identity of the collectivity, the people, ranges from an
outright denial that it has or should have any role, as illustrated by the preamble
to the Tanzanian Constitution, to the assertion that religion is central to the way
that the people view themselves, as expressed in the preamble of the Irish
Constitution, to the purpose of ensuring that human dignity has its source
from God not the state, as illustrated by the debate during the drafting of the
preamble to the Polish Constitution.173 More interestingly, some preambles
appear to make a distinction between the different roles religion plays in the
life of the collective, on the one hand, and in the life of individual members, on
the other hand, as the preamble to the Zambian Constitution illustrates.174
4.6 Imagining plurality: Unity in diversity
Often, the ‘people’ in the preambles of modern constitutions is expressed in

unitary terms, even though most are diverse along many lines. However, some
preambles make diversity the defining feature of the polity’s identity. The people
within the particular state is understood to be composed of many peoples—
whether the diversity is thought to inhere in culture, race, ethnicity, or political
tradition. Switzerland, with its Cantons, announces clearly that the Swiss people
are ‘determined, with mutual respect and recognition, to live our diversity in
unity.’175 Other preambles also indicate the multinational nature of ‘we the
people.’ Thus, the preamble to the Russian Constitution refers to ‘We, the
multinational people of the Russian Federation’176 while the preamble to the
Ethiopian Constitution begins with the following: ‘We, the Nations, Nationalities
172 In some countries a powerful religious institution, such as a church with significant
number of adherents, made it a condition of supporting the constitution that the preamble
include a religious invocation. In the context of the drafting of the post-communist constitution
of Poland, the Roman Catholic Church to which most Poles belong insisted that ‘the inclusion of
a religious invocation would for the Church be the necessary condition for supporting the draft
of the Constitution.’ Hałas (n 22) 56. The Church insisted that the inclusion of the religious
invocation ‘is a better guarantee of making the state respect the dignity of a human being
brought into existence by God and not ultimately yielding to the state.’ ibid 56.
173 Hałas (n 22) 56.
174 See CONSTITUTION OF ZAMBIA , preamble.
175 BUNDESVERFASSUNG [BV] [CONSTITUTION] 18 April 1999, preamble. Interestingly, the pre-
amble also declares that ‘the strength of a people is measured by the welfare of the weak.’ ibid.
176 KONSTITUTSIIA ROSSIISKOI FEDERATSII [KONST RF] [CONSTITUTION], preamble.
and Peoples of Ethiopia.’177 And the preamble to the Constitution of Bosnia and
Herzegovina announces that the State was composed of three constituent peo-
ples, signaling that ‘we the people’ are actually made up of many different
peoples.178 As James Tully has ably shown,179 modern constitutionalism is
generally informed by the idea of a unitary people and the notion of constitu-
tional acknowledgment of diversity (in Tully’s case it is cultural diversity), even
in the very constrained way we see it here, is not common.180
Now, the acknowledgment of the multinational nature of the people is
often accompanied with a provision for an institutional structure, often a
federal system, to signal that there will be a measure of self-determination
for the various peoples or nationalities. The idea is that in a multinational state
there will be at least two public spheres: the local (regional or provincial) and
the national. The local is the space in which issues essential to the self-
determination of the local unit will be raised and debated as an initial matter.
At least, that is the implication and often the public claim. The national public
sphere is the place where the various peoples are linked and their interaction
is coordinated. That coordinated interaction is what leads to the emergence of
177 CONSTITUTION OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA  December 1994,

preamble.
178 See eg CONSTITUTION OF BOSNIA AND HERZEGOVINA, preamble. (‘Bosniacs, Croats, and
Serbs, as constituent peoples (along with others), and citizens of Bosnia and Herzegovina
hereby determine that the Constitution of Bosnia and Herzegovina is as follows […]’). In an
important decision, the Constitutional Court of Bosnia and Herzegovina relied on the preamble
to strike down constitutional provisions (including preambles) of the two ‘entities’ making up
the State: the BiH Federation and the Republika Srpska. Partial Decision U 5/98 III of July 1,
2000. < http://www.jus.unitn.it/download/gestione/jens.woelk/20111028_1108U-5-98-DO-2.
pdf > accessed 7 March 2018. The majority of a closely divided court seems to have concluded
that preambles are not only interpretive tools but substantive sources of rights and duties as
well. I think it would be very fascinating to compare the decisions of constitutional courts of
selected countries who invoke preambles either as interpretive tools or as sources of rights and
obligations to see what inclines courts to opt for one or another strategy. However, given the
research agenda defined at the beginning of this article, that task is beyond the scope of this
project. For a helpful account of the decision see International Crisis Group, Implementing
Equality: The ‘Constituent Peoples’ Decision in Bosnia and Herzegovina (16 April 2002) https://
www.worldcat.org/title/implementing-equality-the-constituent-peoples-decision-in-bosnia-her
zegovina/oclc/49686071.
179 James Tully, Constitutionalism in an Age of Diversity (Cambridge University Press 1995).
180 ibid 201 (‘John Dunn introduces an array of illustrations of how the uniform and homo-
genous image of Athenian democracy continues to exercise a profound influence on the modern
constitutional imagination.’).
166 Adeno Addis
‘the people’ of the state.181 Here, the identity of the people is viewed as the
coordination of multiple and overlapping identities of the various peoples of
the multinational state.
It must be noted here that the acknowledgment of the multinational nature
of the state is not always accompanied by the adoption of a federalist structure
or a federal form of government. In this regard, the preamble to the Chinese
Constitution is a good example. After acknowledging that the People’s Republic
of China is a multinational state ‘built up jointly by the people of all national-
ities,’ the preamble nevertheless declares ‘The People’s Republic of China [to be]
a unitary multinational state.’182 The preamble to the Chinese Constitution
clearly acknowledges that there is ‘big-nation chauvinism, mainly Han chauvin-
ism,’ but it sees the unitary system as necessary to strengthen ‘the unity of the
nationalities.’183 The Constitution’s function is seen as molding a unitary people.
The preamble to the Croatian Constitution deals with diversity in an inter-
esting way. While announcing that Croatia is ‘a unitary and indivisible state,’ it
also declares that the state belongs to ‘the Croatian people and […] members of
other nations and minorities who are its citizens: Serbs, Muslims, Slovenes,
Czechs, Slovaks, Italians, Hungarians, Jews and others.’184 Ethnic Croatians
are declared a ‘people’ while others are simply referred to as ‘nations and
minorities who are citizens.’185 The Croatian Constitution’s preamble, thus,
imagines the country as constituted by two groups: the core ethnic Croatian
people and the rest who are mere citizens. A similar approach was advocated by
conservative groups during the drafting of the preamble to the Polish
Constitution. After intense debate, however, it was rejected as exclusionary
and as an attack on the idea of the civic nation.186 The Croatian approach is in
stark contrast to how the preamble to the Bosnia-Herzegovina Constitution
addresses the constituent parts of the people: ‘Bosniacs, Croats, and Serbs, as
constituent peoples (along with Others), and citizens of Bosnia and Herzegovina
hereby determine that the Constitution of Bosnia and Herzegovina is as fol-
lows.’187 The Croatian Constitution seems to emphasize the ethnic dimension of
181 Nancy Fraser, ‘Social Justice in the Age of Identity Politics: Redistribution, Recognition, and
Participation, The Tanner Lectures on Human Values’ (Stanford University 30 April – 2 May 1996),
available at < http://tannerlectures.utah.edu/_documents/a-to-z/f/Fraser98.pdf > accessed 7 March
2018.
182 XIANFA [CONSTITUTION] , preamble. (China).
183 ibid.
184 CROATIA CONSTITUTION, preamble.
185 ibid.
186 Halas (n 22).
187 CONSTITUTION OF BOSNIA AND HERZEGOVINA, preamble.
the Croatian state while the preamble to the Bosnia-Herzegovina Constitution

signals the civic dimension of nationhood. The people are made up of many
peoples and it is the interaction among the various peoples that leads to ‘the
people’ of the state.188
Preambles’ acknowledgment of the multinational nature of the polity and the
fact that diversity is a defining feature of the identity of the polity (unity in
diversity) seem to have led to two very different institutional responses. One
response is the Swiss response where institutions are put in place to provide for
local self-determination allowing for the cultivation and affirmation of local
identities while at the same time providing national institutions through which
local identities are linked and coordinated so as to provide the condition for
national identity. The second, and the less attractive response, has been where
unity is ensured through either a process of transforming the diverse groups in the
image of the dominant group or where some groups are symbolically excluded
from being seen as part of ‘the people.’ The latter option leads to the creation of
what can be referred to as the ‘hegemonic state.’189 By the phrase ‘hegemonic
state’, I mean to refer to ‘a [multinational] state that energetically promotes the
interests of a single ethnopolitical group in a multinational setting.’190
The preambles to some constitutions directly announce the ‘hegemonic
state’191 by describing the state in terms of the language and culture of one of
the several groups that form the mosaic. For example, the preamble to the 1991
Constitution of Macedonia, a country that emerged from the former Yugoslavia,
declared Macedonia to be ‘the national state of the Macedonian people’192 and
referred to the history and culture of the Macedonian people in what appears to
be a strictly narrow ethnic and linguistic sense. This is despite the fact that there
are various national minorities in Macedonia whose culture, history and religion
differ from that of the ethnic Macedonian majority.193 As I explain in another
188 But as we saw in the Constitutional Court decision on ‘constituent peoples’, the capacity
for self-determination for the constituent peoples has to be consistent with the idea of non-
discrimination or subordination of members of other groups, whether the exclusion manifests
symbolically or actually. See supra note 178.
189 Ilan Peleg, Democratizing the Hegemonic State: Political Transformation in the Age of
Identity (Cambridge University Press 2007) 3.
190 ibid.
191 ibid.
192 CONSTITUTION OF THE REPUBLIC OF MACEDONIA, preamble.
193 The preamble was amended in 2001 following the Ohrid Agreement. The new preamble
projects a more inclusive narrative. It provides: ‘The citizens of the Republic of Macedonia, the
Macedonian people, as well as the citizens living within its borders, which are part of the
Albanian nation, the Turkish nation, the Vlah nation, the Serb nation, the Bosnian nation and
others […] have decided to establish the Republic of Macedonia as an independent, sovereign
168 Adeno Addis
part of this article, a similar debate occurred during the drafting of the preamble
to the Polish Constitution. Those who sought to endorse the ethnic rather than
the civic state wanted the preamble to begin with ‘We, the Polish Nation’ rather
than ‘We, Polish citizens.’194 As it turned out, they reached a compromise in
which the civic and ethnic conceptions of the state seem to co-exist in a rather
ambiguous opening: ‘We, the Polish Nation, all citizens of the Republic’.195
Another example might be the case of Israel. Israel has, from the beginning,
been referred to as a Jewish and democratic state.196 This reference was not, as
an initial matter, a result of a preamble, for there was no such thing. Indeed, as I
noted earlier, Israel did not and still does not even have a written constitution. It
was by custom (unwritten constitution) that the country was referred to as
Jewish and democratic. However, by passing Basic Laws, Israel, in stages, has
started to create something similar to a constitution.197 Parts of those Basic Laws
have come to serve as quasi preambles. Just as in the case of Macedonia, the
identity of the state is being exclusively defined by the identity of the majority.
Israel’s non-Jewish citizens, mostly Arabs,198 are, at least linguistically and
symbolically, excluded from viewing themselves as forming any part of the
identity of the people.199 Here I must make a distinction between the
state.’ ibid. It must be noted here that change did not please ethnic Macedonians who
apparently felt that the change was imposed on them by ‘violence and international pressure’
while ‘ethnic Albanians continue to challenge their linkage to other minorities and their inferior
status, which is derived, in their view, from the term ‘as well as’ that appears in the preamble.’
Liav Orgad, ‘The Preamble in Constitutional Interpretation’ (2010) 8 International Journal of
Constitutional Law 714, 732.
194 See Zubrzycki (n 22) 644.
195 TEKST KONSTYTUCJI RZECZYPOSPOLITEJ POLSKIEJ [CONSTITUTION] , preamble.
196 The Declaration of Independence (14 May 1948) notes that Israel was a nation-state for the
Jews and is democratic. Israeli Declaration of Independence.
197 In a series of laws culminating in the Basic Laws of 1992, Israel is explicitly defined as
Jewish and democratic. Orgad (n 193) 733. The two Basic Laws of 1992 on Human Dignity and
Liberty and on Freedom of Occupation respectively declare the State of Israel as a ‘Jewish and
democratic state.’ For a reflection on and a defense of the expression ‘a Jewish and democratic
state’ see Ruth Gavison, ‘Reflections on the Meaning and Justification of “Jewish” in the
Expression “A Jewish and Democratic State”’ in Fania Oz-Salzberger and Yedidia Z Stern
(eds), The Israeli Nation-State: Political, Constitutional, and Cultural Changes (Academic
Studies Press 2014).
198 About 21 percent of Israel’s citizens are Arabs.
199 See Jousef T Jabareen, ‘Constitution Building and Equality in Deeply-Divided Societies, The
Case of the Palestinian-Arab Minority in Israel’ (2008) 26 Wisconsin International Law Review
345; see also Roger Cohen, ‘My Jewish State’ New York Times (New York, 2 January 2014) A19
(‘For Palestinians, such a form of recognition [Jewish State] would amount to explicit acquies-
cence to second-class citizenship for the 1.6 million Arabs in Israel; undermine the rights of
Jewishness of the State that defines or imagines the collective entity which
excludes the non-Jewish minority, on the one hand, and the fact that Israeli
Arab citizens (by virtue of citizenship) are, by and large, granted all individual
rights that are attendant to citizenship.200
Hegemonic exclusivity is also apparent in almost all preambles to the
constitutions of those states that call themselves Arab. Even though there are
many – religious and ethnic201 – minority groups in those countries such as Iraq,
Lebanon, and Egypt refer to themselves as Arab and/or Islamic. The experiences
of Macedonia, Israel and Arab countries lead to what we may refer to as
‘exclusivist constitutions.’202 The state is imagined in the image of the majority
group. Actually, the hegemon need not to be a majority; it could be a minority,
as well.203 An identity of a people defined in that manner cannot be viewed as a
complete biographical account of ‘the people.’204 A constitution that captures
the hopes and aspirations of only some segments of the political community,
whether symbolically or substantively, is like a biography of an individual
which describes only a portion of the subject’s life. It is inaccurate, it lacks
millions of Palestinian refugees; upend a national narrative of mass expulsion from land that
was theirs.’).
200 I say ‘by and large’ because there are certain rights and privileges that are available to
others that Arab minorities are not granted, many of which have to do with the Jewish identity
of the State. Thus, Section 7A (a) (1) of the Basic Law provides that any political party that
stands on a platform that denies that Israel is a Jewish and democratic state will not be allowed
to stand for election to the Knesset. Basic Law: The Knesset, 1958. In fact, no party will be
registered if its goals and actions amount to denial of the Jewish or democratic nature of the
State. See Section 5 of the Parties Law of 1992. And the Knesset Bylaws (Section 134 [c]) instruct
the Speaker of the Knesset not to approve submission of any legislation which ‘denies the
existence of the State as the Jewish people’s state.’
201 Consider, for example, the fact that there are Kurds in Iraq and Syria and there are Coptic
Christians in Egypt making up about 10 percent of the population and a minority Christian
population in Syria whose existence is symbolically erased by the preambles to the constitu-
tions of these countries.
202 See Peleg (n 189) 85. (‘An exclusivist regime […] is one that privileges one ethnic or
national group over all others, often by making the preferential status a permanent feature of
the polity and by establishing multiple institutions [such as the constitution] designed to
perpetuate the ethnic [or religious] hegemony of the privileged group overall other groups.’).
203 An example of a minority hegemon is the White South African minority government (and
state) during the Apartheid era and the Sunni minority in Iraq during the Saddam Hussein era.
There are of course many states with majority hegemony.
204 The situation with Israel is perhaps different to the extent that the State was established as
a home for Jews, but that does not minimize the linguistic and symbolic exclusion of minority
groups resulting from the exclusivist description of the State.
170 Adeno Addis
context and it is inherently unstable.205 A key to pluralist politics is to prevent

the tyranny of those ‘intransigent unitarians’ who seek to impose the interests
and values of one group on everyone else.206 The Mexican essayist, Octavio Paz,
expressed perfectly the fact that diversity is an essential part of life and need to
be expressed in our institutions when he observed thusly:
What sets worlds in motion is the interplay of differences, their attractions and repulsions.
Life is plurality, death is uniformity. By suppressing differences and peculiarities, by
eliminating different civilization and cultures, progress weakens life and favors death.207
4.7 Imagining (Performing) the international community:

The preamble of the United Nations Charter
Thus far in this section I have explored the nature of the preambles to the
constitutions of the people of nation-states. In this subsection I shall examine
the preamble to the United Nations Charter, the constitution of the international
community. The preamble to the United Nations Charter, the founding document
of the United Nations (its constitution208), begins like many national constitu-
tions with the phrase ‘we the peoples.’209 ‘We the peoples of the United Nations’
come together to announce and pursue certain goals and purposes.210 The word
‘peoples’ is mentioned twice in the preamble. It is an extraordinarily bold move
for the drafters of the preamble to speak in terms of the ‘peoples’211 as active
205 See eg Tully (n 179) 187 (‘If the integrity of the nation is a code word for an ethnic nation,
then […] it is empirically false. Nations are, in William McNeill’s phrase, Polyethnic. This has
not stopped the idealists of the ethnic nation state from making their false claims […]. The
integrity of the ethnic nation is more often a claim that the nation should be purified, rather
than a claim that it is pure, although the two are connected.’).
206 William E Connolly, Pluralism (Duke University Press 2005) 125.
207 Octavio Paz, The Labyrinth of Solitude (1967) cited in Tully (n 179) 186.
208 See Kelsen (n 18) 159 (‘“Charter” is certainly a more adequate designation of the constitu-
tion of an international community than ‘Covenant,’ the name given to the statute of the League
of Nations.’).
209 UN Charter preamble. The only difference is that the preamble of the Charter uses the
plural – ‘peoples’.
210 ibid.
211 The preamble speaks in the voice of ‘the peoples’ initially to announce its purposes and
objectives while later on, in the eighth paragraph, declares that their ‘governments, through
representatives assembled in the city of San Francisco, who have exhibited their full powers,
found to be in good and due form’ adopt the Charter and establish organizations.
agents at a time when many thought that sovereignty lay elsewhere.212 And it is
quite a change from the preamble of the Charter’s predecessor, the preamble to
the Covenant of the League of Nations, which opened simply with ‘The High
Contracting Parties.’213 There was no reference to ‘peoples,’ but simply to con-
tracting parties – the states or empires. Unlike the preamble to the Covenant of
the League, the preamble to the Charter endows the ‘peoples’ with an interna-
tional legal existence. Peoples were no longer the unacknowledged background
of international law and the international community. The performative force of
the Charter’s use of the phrase ‘we the peoples’ is undeniable. Prior to this
declaration there were no such peoples; there were states and empires.
The ‘we the peoples’ formulation was probably inspired, just like the preambles
of many constitutions, by the opening phrase of the United States Constitution, and
perhaps pushed by the delegation of the United States for its adoption at the drafting
of the Charter.214 Whatever the source of and inspiration for its adoption, the phrase
sets forth a process of imagining an entity, an international community. Here, the
several peoples in the preambles of the constitutions of the territorial states come
together to constitute themselves as a people, as an agent with a particular identity,
and to pursue certain purposes. Unlike the other preambles of the constitutions of the
various countries we have explored in this section, the peoples here are not defined
by ethnicity, religion or a common history. To be sure, history is not absent from the
process of imagining or performing ‘we the peoples.’ Indeed, the preamble itself
alludes to how the just concluded war (WWII) provided the impetus for constituting
‘we the peoples.’215 The ‘peoples’ came together determined to ‘save succeeding
generation from the scourge of war … and to reaffirm faith in fundamental human
rights, in the dignity and worth of the human person.’216 The identity of the ‘peoples’
is defined by the purposes for which they have come together, by the relationships
they seek to establish, and the commitments that they have made to one another as
212 Indeed, at the drafting, the delegate from the Netherlands resisted such an opening on the
account that ‘in the Netherlands, the constitution does not devolve sovereignty to the people,
but to the Crown, and it is the Crown not the people which make treaties.’ See Doc 817, I/1/31, 6
June 1945; but cf Doc 926, I/1/36, 12 June 1945; see also Jean-Pierre Cot and Alain Pellet, ‘What
They Had in Mind – The Preamble to the Charter’ (1986) 1/2 Development: Seeds of Change 22.
213 The Covenant of the League of Nations, preamble.
214 See Cot and Pellet (n 212) 26 (‘The paternity of this formula is to be given to the American
delegation and, very probably to one of its members, representative Sol Bloom,’).
215 UN Charter, preamble.
216 See UN Charter preamble. (‘We the peoples of the United Nations determined to save
succeeding generations from the scourge of war, which twice in our lifetime has brought untold
sorrow to mankind, and to reaffirm faith in fundamental faith in fundamental human rights, in
the dignity and worth of the human person, in the equal rights of men and women […]’).
172 Adeno Addis
peoples, not just as states or as empires or even nations.217 The central purpose for
which the peoples came together was to establish an international order that strongly
disfavored the use of war as a means of pursuing international relations and that
affirmed the dignity of the individual and the centrality of human rights in protecting
that dignity. These two purposes were in fact linked, for it was one of the most
destructive and genocidal wars that led the ‘peoples’ ‘to reaffirm faith in fundamental
human rights [and] in the dignity and worth of the human person.’218 World War II
had badly shaken their faith that humans indeed possess an inviolable dignity
and that respect for human rights is the foundation for the maintenance of interna-
tional peace and security. As I have argued in an earlier work, the phrase ‘we the
peoples’ and the purposes for which the ‘peoples’ came together invite us to imagine
an international order of a different kind from that which had existed up to then, one
in which peace and human rights are central features.219
To complete the picture, the relationship between ‘we the peoples of the
United Nations’ and the founding document, the Charter, is very similar to the
relationship between ‘we the people’ of the territorial states and their constitutions.
The invocation of the people has a performative character. The document that is
adopted in the name of and by the peoples is in fact constitutive of the peoples
themselves. The peoples became ‘peoples of the United Nations’ as they gave
themselves the Charter. The peoples and the document are co-foundational.220
Hans Kelsen understood that there were no ‘peoples of the United Nations’ prior to
217 One of the most important aspects of the use of ‘peoples’ is the signal it sent that a state is
not (at least not always) simply another term for nations. Rather, a state is often inhabited by
diverse nations.
218 UN Charter, preamble.
219 Adeno Addis, ‘Economic Sanctions and the Problem of Evil’ (2003) 25 Human Rights
Quarterly 573–623.
220 In his discussion of social imaginaries, Charles Taylor makes a similar claim about beliefs
and practices. For Taylor, our beliefs and our practices are co-productive. See Charles Taylor,
Modern Social Imaginaries (Duke University Press 2003). Jürgen Habermas also makes an argu-
ment for co-origination in relation to private and public autonomy. See Jürgen Habermas,
‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles’ (2001) 29 Political
Theory 766, 767 (‘The idea of human rights that is spelled out in basic rights may neither be
imposed on the sovereign lawgiver as a limitation nor be merely instrumentalized as a functional
requisite for legislative purposes. In a certain way, we consider both principles as equally original.
One is not possible without the other, but neither sets limits on each other. The intuition of ‘co-
originality’ can also be expressed thus: private and public autonomy require each other. The two
concepts are interdependent; they are related to each other by material implication. Citizens can
make an appropriate use of their public autonomy, as guaranteed by political rights, only if they
are sufficiently independent in virtue of an equally protected private autonomy in their life
conduct.’).
the Charter, but he does not seem to have realized the co-foundational nature of
‘we the peoples’ and the Charter.221
5 Dealing with the paradox

Earlier in this article I mentioned that there was a paradox involving ‘we the people’
and the constitutional document. In this section I will flush out that paradox. The
paradox has two parts. First, how is it possible that the people could simultaneously
be the originators of the document and its product? That is, how can the people and
the constitution be co-originators? Second, how is it that we the people (who lived at
a given moment of time) could bind successive generations of we the people, and yet
the latter can claim to be engaged in self-government?
Let me take the two issues in the order that I have presented them. If one
reads the preambles to the constitutions of many countries, the response to the
claim of paradox, in the first sense, seems to be denial that such paradox even
exists. Preambles suggest that the sequence is clear: there is a people and then
there is a constitutional document which is the creation of that people. All of
the preambles that start with ‘we the people’ go on to say that the people
‘have adopted,’222 ‘established,223’ ‘ordained,’224 ‘proclaimed,’225 ‘enacted,’226
221 Kelsen (n 18) 140 (‘The peoples whose governments established the United Nations
Organization became peoples of this organization only after the Charter came into force. Prior
to this date the peoples of the ‘United Nations’ were peoples of the states whose governments
signed the Declaration by the United Nations of 1 January 1942.’).
222 Afghanistan, Algeria, Armenia, Belarus, Benin, Burkina Faso, Cuba, Czech Republic,
Ethiopia, Gabon, Germany, Guinea-Bissau, Guyana, Hungary, India (‘adopt, enact and give to
ourselves this Constitution.’), Ireland (‘do herby adopt, enact, and give to ourselves this
Constitution.’), Lithuania, Macedonia, Malawi, Moldova, Montenegro, Namibia, Niger, Pakistan
(‘adopt, enact and give to ourselves this Constitution’), Paraguay (‘approve and promulgate’),
Russia, Serbia, Seychelles (‘adopt and confer upon ourselves this Constitution as the fundamental
and supreme law of our Sovereign Democratic Republic’), Slovakia, South Africa, Sri Lanka
(‘adopt and enact’), Switzerland, Tajikistan, Turkmenistan, Ukraine, Uzbekistan.
223 Albania, Liberia, Palau, Poland, Rwanda (‘establish and adopt’).
224 Argentina (The Argentinian preamble actually says ‘do ordain, decree, and establish this
Constitution for the Argentine Nation.’), USA (‘do ordain and establish’), El Salvador, Georgia,
Philippines (‘do ordain and promulgate this Constitution’).
225 Mongolia, Tunisia.
226 Zambia (‘do herby enact and give to ourselves this Constitution’), Costa Rica (‘decree and
enact’), Kyrgzstan, Peru, Tanzania.
174 Adeno Addis
or ‘ratified’227 their constitutions.228 From the point of view of those preambles,

the people as an agent existed prior to the adoption of the document.
These preambles have an ally in the German legal and political philosopher,
Carl Schmitt, who resolved the paradox by claiming that political nations not
only precede the adoption of constitutions (whether for the first time or whether
as an amendment), but even give life to those constitutional documents.229 For
Schmitt, the phrase ‘we the people,’ when used in preambles, should really be
understood as a descriptive rather than a constitutive term, as constative rather
than performative. The people, in fact, existed prior to the adoption of the
document and are the source of its legitimacy. In a work first published in
1928, Schmitt described preambles as expressive (descriptive) rather than con-
stitutive (performative) of political identity.230
The argument is that ‘we the people,’ as a constitutional phrase, could make
sense both conceptually and practically only if we assumed that there existed a
people as an agent prior to the constitutional declaration. Indeed, this is one of
the arguments that Euro-skeptics make against the idea of a European constitu-
tion. As Jürgen Habermas put it: ‘Eurosceptics reject a shift in the basis of
legitimation of the Union from international treaties to a European
Constitution with the argument, ‘there is as yet no European people’.
According to this view, what is missing is the very subject of a constitutional
process, the collective singular of ‘a people’ capable of defining itself as a
democratic nation [or perhaps any other nation].’231
227 CONSTITUCIÓN ESPAÑOLA, preamble.

228 Other countries use other verbs, but with the same effect. Thus, Egypt’s preamble provides:
‘We the people of Egypt […] accept, and grant, to ourselves this Constitution.’ CONSTITUTION OF
THE ARAB REPUBLIC OF EGYPT , preamble. Papua New Guinea’s preamble uses all of the
available verbs (We the people ‘hereby establish, adopt and give to ourselves this Constitution
to come into effect on Independence Day.’). CONSTITUTION OF THE INDEPENDENT STATE OF
PAPUA NEW GUINEA, preamble. For a similar expression to that of PNG, see CONSTITUTION OF
THE INDEPENDENT STATE OF WESTERN SAMOA 1960, preamble. Uganda’s preamble says that the
people of Uganda ‘adopt, enact and give to ourselves and our posterity this Constitution’).
CONSTITUTION OF UGANDA, preamble. Kenya’s constitution has similar expressions.
CONSTITUTION OF KENYA , preamble.
229 See especially Carl Schmitt, Constitutional Theory (Jeffrey Seitzer ed and trs, Duke
University Press 2008); see also Carl Schmitt, The Concept of the Political (George Schwab trs,
University of Chicago Press 2007); see also Levinson (n 152) 166–167.
230 Carl Schmitt, Verfassungslehre (1928) referred to in Jürgen Habermas: The Inclusion of the
Other: Studies in Political Theory (Ciaran Cronin and Pablo De Greif eds, MIT Press 1998) 134–135.
231 Jürgen Habermas, ‘Why Europe Needs a Constitution’ (2001) 11 New Left Review
(September-October,) (citation omitted) 15. For Habermas’ critique of the position of the
Eurosceptics see Habermas, Inclusion of the Other (n. 230) 129–154. One might add to this
The Schmittian view of a prior people seems false to me in many circum-

stances; and it is certainly unattractive. It is false because as I have argued
throughout this article, most ‘peoples’ define themselves in the process of
declaring that they are a people. The adoption of the constitution is often the
very moment where the people see themselves as a people, at least in the
particular collective way that they see themselves. The authorial pronouncement
is the very moment at which the existence of the people is declared. In many
African and Asian countries which were created by arbitrary colonial bound-
aries, the assertion of ‘we the people’ at independence is the first moment where
the disparate entities see themselves as a people – as an entity endowed with
agency and identity. When the preamble to the Papua New Guinea Constitution
declares that ‘we the people, do establish this sovereign nation and declare
ourselves […] to be Independent State of Papua New Guinea’ or when the
preamble to the Bangladeshi Constitution announces that we the Bangladeshi
people have ‘established the independent, sovereign People’s Republic of
Bangladesh,’ the very act of adopting the constitution functions as the moment
at which a particular ‘people’ is born. There was not a ‘Papua New Guinea
people’ as such prior to the announcement. There were disparate religious and
ethnic groups who simply happened to find themselves within a particular
territory that had been placed under colonial control. It is of course true that
colonialism can forge a ‘people’ in the loose sense (that is, a people without
agency, subjects rather than agents), but the people in the Papua New Guinea
Constitution are a qualitatively different group. Their relationship with one
another is very different.
The use of the phrase ‘we the people’ in the US Constitution has also been
said to be constitutive rather than descriptive. Writing about the invocation of
the phrase ‘we the people’ to establish the US Constitutional order, the great
historian Edmund Morgan observed, ‘The very existence of such a thing as the
people, capable of acting to empower, define, and limit previously non-existent
government required a suspension of disbelief. History recorded no such
group of skeptics one of the great political theorists of the twentieth century, Isaiah Berlin.
Commenting on the idea of a European unity, Berlin pens a caution with his usual eloquence:
‘Few things have played a more fatal part in the history of human thought and action than great
imaginative analogies from one sphere [in this case the state], in which a particular principle is
applicable and valid, to other provinces [in this case superstate], where its effects may be
exciting and transforming, but where its consequences may be fallacious in theory and ruinous
in practice.’ Cited in Jan-Werner Müller, Constitutional Patriotism (Princeton University Press
2007) 95.
176 Adeno Addis
action.’232 In many cases, therefore, the idea of an acting agent called the people
is nothing more than the twin sibling of the declaring document itself, born of
the same event and moment. The performance utterance possesses its own
authority. Preambles are ritualized practices where, to use a Derrida description
referring to the United States Declaration of Independence, ‘t]he signature
invents the signer.’233 The signers lack the authority to sign until they have
already signed, although they often refer to God, truth, natural law or history as
being on their side. One needs to exist as an entity in order to think of others
being on one’s side. It is the performative utterances, rather than those external
factors that the declarations mention, which are ultimately the founders of the
people. Identity here is the product, not the condition of action.
The Schmittian view of a prior people is not only false in many circum-
stances but also unattractive. It is unattractive because the idea seems to be
premised on the notion of a state defined by the homogeneity of its citizens.
Each nation has a state and each state is a nation. People and nation are here
interchangeable. Such a view freezes the identity of ‘we the people’ at a parti-
cular time and to a particular group, unable to remain inclusive as demography
and other aspects of the people change. Indeed, the German notion of the
people, until recently, had been a prime example of the Schmittian view of a
naturally defined nation or people. Until the late 1990s, Germany viewed
232 Edmund S Morgan, Inventing the People: The Rise of Popular Sovereignty in England and
America (WW Norton ) . Robert Dahl makes a similar point when he observes: ‘How to
decide who legitimately make up ‘the people’ is a problem almost totally neglected by all the
great political philosophers who write about democracy.’ Robert A Dahl, After the Revolution
(Yale University Press 1970) 60. The incompatible demands that are placed on the notion of the
people goes back to the social contract of Hobbes, who wished the original contract to serve as
the foundation of all shared and common standards and rules, while also wishing it to be a
contract which assumes an already existing shared and common standards of the kind, which
apparently cannot exist prior to the contract. The notion of the people therefore seems to suffer
from a similar internal contradiction as the original contract. For a more recent and direct
expression of the performative nature of the notion of ‘the people,’ see Schmitt, Constitutional
Theory (n 229) 268 (‘The people are anterior to and above the constitution […] Every democratic
constitution presupposes such a people capable of action.’).
233 Jacques Derrida, ‘Declarations of Independence’ (1986) 15 New Political Science 7, 10 (‘The
“we” of the declaration speaks “in the name of the people”. But this people does not yet exist.
They do not exist as an entity, it does not exist, before this declaration, not as such. If it gives
birth to itself, as free and independent subject, as possible signer, this can hold only in the act
of the signature. The signature invents the signer. The signer can only authorize him or herself
to sign once he or she has come to the end, if one can say this, of his or her own signature, in a
sort of fabulous retroactivity.’).
membership to the political community in terms of German blood.234 Many

residents of Germany with Turkish ancestry (even those who had been born in
Germany) were never thought of as belonging to the German people; it was
apparently somehow difficult to imagine them as being part of ‘we the people of
Germany.’ Most political communities are diverse – ethnically, racially, linguis-
tically, religiously, etc – and the idea of a people understood in ethnic, racial, or
other supposedly ‘natural’ characteristics is, therefore, a recipe for the emer-
gence of the hegemonic state235 or for chronic conflict and chaos. Acts of ethnic
cleansing and even genocide are premised on the illusionary notion of the purity
of communities and peoples.236
Let me now briefly deal with the second aspect of the paradox that I
mentioned at the beginning of this section. I want to suggest that there is
perhaps a different and more attractive way of viewing constitutions as auto-
biographies, one that begins to resolve the second aspect of the paradox in a
way that is capable of reconceptualizing the people by responding to demo-
graphic and other expansions. A document that is meant to last for generations,
responding to and capturing the hopes and aspirations of a people, cannot
function as such if it exists frozen in the time of its birth. The change in ‘we
the people’, both demographically and in terms of needs, interests and values,
requires that constitutional systems have built-in self-corrective mechanisms if
they are to retain the claim that they are the autobiographies (or biographies) of
the people. Self-corrective mechanisms are processes by which the phrase ‘we
the people’ is made responsive to changes in the composition of the people. The
legitimacy of a constitutional order is its capacity to capture the essence of ‘we
the people’ (this is the idea of recognition) and to respond to their needs and
aspirations (this is the idea of responsiveness).
234 It was apparently towards the end of the nineteenth century that ‘blood’ ‘became a key
concept in German citizenship […] [and] [i]n this atmosphere, the 1913 Reichs- und
Staatsangehörigkeitsgesetz finally went ethnic.’ David Abraham, ‘Constitutional Patriotism,
Citizenship, and Belonging’ (2008) 6 International Journal of Constitutional Law 117, 146–147;
see also Ulrich K Preuss, ‘Constitutional Power-making for the New Polity: Some Deliberations
of the Relation Between Constituent Power and the Constitution, in Michael Rosenfeld (ed),
Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspectives (Duke University
Press 1994) 150 (‘[W]hereas in the French concept the nation is the entirety of the demos, in
German […] conception the nation is a group defined in terms of ethnicity – the nation is
ethnos.’).
235 See Peleg (n 189) 3.
236 See Adeno Addis, ‘Genocide and Belonging: Processes of Imagining Communities’ (2017)
 University of Pennsylvania Journal of International Law 1041.
178 Adeno Addis
The point I am making here is that the notion of ‘we the people’ that opens
the constitutions of many countries is not simply a reference to a historical event
or people, but instead signals, to borrow a phrase from Frank Michelman, an
‘irreducibly transtemporal’ authorial authority.237 The ‘people’ is ‘a composite
being whose component parts are constantly undergoing change’238 both phy-
sically and culturally.239 Viewed in that manner, the identity of the people
painted in preambles is only the first chapter in an ongoing project of self-
construction and reconstruction that every people, and for that matter every
individual, is engaged in. The only thing permanent is the agency of the people
that is asserted in that first chapter. The founding people is not preserved in the
same way a fixed monument is preserved. As I noted earlier, the people is
preserved by way of translation. Translation, of course, necessarily augments.
The people, understood this way, is not the entity of constative discourse (the
yearning of the original) but rather an entity for the point of departure for a new
beginning. To quote Leo Strauss in another context, ‘[f]oundation is, as it were,
continuous foundation.’240
6 Conclusion
Constitutional preambles have been described as ‘the single most important
part(s)’241 of constitutions, yet they remain generally neglected as scholarly
subjects of inquiry. In the few occasions when scholarly attention is paid to
preambles, it is often in relation to the much narrower question of the legal
237 Michelman, Reply to Ming-Sun Kuo (n 71) 717.

238 Ham and Kim (n 137) 806.
239 The Australian Constitution essentially understood the ‘people’ in racial terms. The
Indigenous People (Aborigines) were initially only recognized in the Constitution so as to be
excluded. Section 51 (xxvi) of the Constitution, for example, required that ‘[i]n reckoning the
numbers of the [people] aboriginal natives shall not be counted.’ But several decisions of the
High Court of Australia have broadened the scope of the ‘people’ explicitly declaring that the
concept of the people has changed overtime. Attorney General (Cth), ex rel McKinlay v
Commonwealth (1975) 135 CLR, at 36–37 (McTiernan and Jacobs JJ); Langer v Commonwealth
(1996) 1986 CLR 302, at 342–343 (McHugh J); Roach v Electoral Comm’r (2007) 233 ClR 233 ClR
162, 174, 188.
240 Leo Strauss, Thoughts on Machiavelli (University of Chicago Press 1978) 44.
241 Sanford Levinson, Our Undemocratic Constitution (OUP 2006) 13 (emphasis in original).
Levinson was referring to the US preamble. On the same page Levinson describes the preamble
as ‘the equivalent of our creedal summary of American’s civil religion.’.
status of preambles: whether judges cite or should cite to preambles when they
make binding decisions.
In this article I have attempted to correct this neglect. I have examined
closely the preambles of national constitutions currently in force to see what
functions preambles are meant to, and do in fact, perform. The article makes the
argument that preambles are the political aspect of the politico-legal document
we call a constitution. To be sure, in several countries preambles seem to enjoy
narrowly legal status as well.242 Once in a while, courts invoke them to make
legally binding decisions – invoked either as interpretive devices or as sources of
substantive rights and duties. In many countries, however, preambles do not
enjoy a legal status at all. They are meant to perform important political and
symbolic functions. Even when preambles are thought of as sources of legal
rights and duties, they are often not invoked as such precisely because the rights
and duties enshrined there are often reproduced verbatim in other parts of the
constitution either as parts of an article or as free standing articles. Courts and
other decision-makers cite to those provisions rather than to the general state-
ments in the preamble. So, the most important function that preambles perform
is political (or ideological, to use Kelsen’s term) and symbolic.
The central political and social function that preambles perform is, there-
fore, attempting to constitute the identity of the political community. Sometimes
that political community is referred to as ‘the people’; other times, it is called
‘the nation.’ Preambles imagine that identity in several ways. At times, they give
a brief historical account of how the people (who are often supposed to be the
authors of the constitution) came to be, the salient historical facts that made the
people who they are. At other times, preambles define the people in terms of
how they relate to one another as well as to other peoples. And still at other
times, the identity of the people is defined by the nature of their relationship
with some version of the Almighty. The whole purpose of preambular performa-
tive discourse is to attempt simultaneously to constitute and describe what is
thought to be the essence of the people, its central defining features.243
Here we must make a distinction between authenticity and fixedness.
Constitutional identities, like individual identities, develop in the context of
242 As I noted earlier, the Bosnia and Herzegovina Constitutional Court read the preambles to
the constitutions of the State as well as the ‘entities’ constituting the State as sources of specific
rights and duties or obligations.
243 Sometimes, preambles are used to make rather inoffensive (even perhaps true) boastful
declarations about the country or the people, an example of which is the preamble to the
Constitution of the Seychelles which in part thanks the ‘Almighty God for living in one of the
most beautiful countries of the World.’ Who would disagree with that?
180 Adeno Addis
constant and evermore expanding and thick interaction with other peoples and
international organizations, whether governmental or non-governmental.
Sometimes, the constitution itself makes provision for taking that fact into
account. Thus, when interpreting the Bill of Rights, the South African
Constitution instructs its jurists to consider ‘international law’ and provides
them with discretion to consider ‘foreign law.’244 Even when the constitution
does not provide such discretion, decision-makers have consulted foreign
sources and decisions that have dealt with issues similar to the ones before
them,245 thereby thickening the constitutional identity of the people. After all,
‘[w]e define [our individual identities] always in dialogue with, sometimes in
struggle against, the identities of our significant others [those who matter to us]
want to recognize in us.’246 And it is no different in relation to constitutional
identities. Constitutional identities develop in dialogue with, sometimes in
struggle against, the identities of counterparts. Openness to the experience of
self-government of other political communities is part of what I earlier called a
strategy of self-correction.
A people, like an individual, is always evolving, always becoming some-
thing else; it is never fully achieved.247 No political people is natural or eter-
nal.248 Preambular provisions are simply the first chapter in an ongoing chain
project of social imaginaries249 that we call political identity.250 Authenticity is
244 Constitution of the Republic of South Africa 1996, § 39.

245 For an interesting account of how citation of foreign court decisions on matters of
constitutional issues has expanded greatly in the past few years, see Ran Hirschl, ‘In Search
of an Identity: Voluntary Foreign Citations in Discordant Constitutional Settings’ (2014) 62,
American Journal of Comparative Law 547, 548. ‘The rise of a global constitutional dialogue, the
apparent inevitability of engagement with foreign jurisprudence in an era of globalization and
increased inter-connectivity, and the corresponding emergence of an international epistemic
community of courts and judges in a phenomenon that has attracted much attention among
scholars and jurists.’
246 Taylor (n 121) 33.
247 See Adeno Addis and Jonathan R Nash, ‘Identitarian Anxieties and the Nature of Inter-
Tribunal Dialogue’ (2009) Chicago Journal of International Law 613, 624.
248 Smith (n 44) 34.
249 See Taylor (n 111) 23 (‘By social imaginaries, I mean to [refer to] [..].the ways people
imagined their social existence, how they fit together with others, how things go on between
them and their fellows, the expectations that are normally met, and the deeper normative
notions and images that underlie these expectations.’).
250 As a chronological matter, most preambles are often written or adopted last. Writing about
the preamble to the United States Constitution, Robert J Peaslee observes: ‘Instead of being
settled first, the preamble was the last part of the constitution to be put into form; or, so far as
the record shows, to receive any consideration by the convention.’ Robert J Peaslee, ‘Our
National Constitution: The Preamble’ (1929) 9 Boston University Law Review 2, 7.
not about closedness, but about the capacity to interact as an agent and to
continue writing one’s evolving identity in the context of that interaction. In
other words, identities are defined in the context of an ever-present tension, the
tension between continuity and change, between what William E Connolly has
called pluralism and pluralization.251
Acknowledgments: I thank Adam Feibelman for a detailed comment on an

earlier version of the manuscript. I have benefited greatly from conversations
with many friends and colleagues about one or another aspect of the arguments
made in the article. I thank them all. I would especially like to thank Jörg Fedtke
and Keith Werhan for the many instructive conversations I had with them on the
issue of constitutional identity. I would also like to thank an anonymous
reviewer of the manuscript for the Journal for helpful comments. Finally, I
thank Victoria McIntyre for the excellent research assistance she provided in
the preparation of this manuscript.
251 Connolly (n 206) Pluralism is a political process that acknowledges the existence of certain
identities and works only in the context of those identities. In this sense, pluralism is con-
servative. It is status quo oriented and emphasizes continuity. On the other hand, pluralization
is the demand for change or revaluation of current identities in the light of encounters with
other identities. Globalization provides one of those circumstances pressing for pluralization.

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Abstract: Most constitutions start with a preamble. A constitutional preamble is

Keywords: constitutional identity, narrative, preamble, performatives, we the

‘ordaining’ or ‘granting’ the document to itself. However, as this article will

4 Merriam-Webster dictionary defines ‘performative’ as ‘being or relating to an expression that

2 A brief introduction to preambles and why

tions,25 specifically, that have generated considerable scholarly interest.

Preambles have triggered scholarly interest for a number of reasons. First, a

38 ibid; see also Zubrzyeki (n 22) 629.

3 Preambles and the claim of constitutional

3.1 The people as authors

Slovakia – the choice of ‘nations’ over people is intended to emphasize the

49 See eg Hałas (n 22); see also Zubrzycki (n 22) 643–655.

3.2 The idea of constitutions as autobiographies

constitutions that political communities imagine ‘a distinct form and identity.’70

4 Imagining the people: The role of preambles

4.1 Preamble and historical identity

is performative in nature. Although the history of the people is said to be long,

Chinese and Cuban Constitutions attempt to situate what appears to be a dis-

how those ancient inhabitants viewed their relationship to each other, or

utterance), is in fact performative at its core. It is intended not just to paint an

4.2 Boundaries of the people: The assertion of an extended

At times, preambles attempt to define the identity of the political community in

95 TEKST KONSTYTUCJI RZECZYPOSPOLITEJ POLSKIEJ [CONSTITUTION] , preamble.

complicated nature of the country’s identity, mentioning the existence of many

109 CONSTITUTION OF THE DEMOCRATIC REPUBLIC OF THE CONGO 2005, preamble.

declarations is not to describe a historical event but to constitute a people

117 DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA’S SOCIALIST CONSTITUTION, preamble.

4.3 The preamble as an account of the emergence of a new

123 SOUTH AFRICAN CONSTITUTION 1996, preamble.

4.4 Preamble as signals that a people has changed

4.5 Preambles and the role of religion: Imagining the moral

The preamble to the constitution of Pakistan similarly details a religious

To summarize, most preambles refer to religion and to the role it is imagined

4.6 Imagining plurality: Unity in diversity

Often, the ‘people’ in the preambles of modern constitutions is expressed in

177 CONSTITUTION OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA  December 1994,

the Croatian state while the preamble to the Bosnia-Herzegovina Constitution

context and it is inherently unstable.205 A key to pluralist politics is to prevent

4.7 Imagining (Performing) the international community:

5 Dealing with the paradox

or ‘ratified’227 their constitutions.228 From the point of view of those preambles,

227 CONSTITUCIÓN ESPAÑOLA, preamble.

The Schmittian view of a prior people seems false to me in many circum-

membership to the political community in terms of German blood.234 Many

237 Michelman, Reply to Ming-Sun Kuo (n 71) 717.

244 Constitution of the Republic of South Africa 1996, § 39.

Acknowledgments: I thank Adam Feibelman for a detailed comment on an

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