Out of Many, One: A Legal and Constitutional Approach to Unity

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Jul 10

An earlier version of this essay was presented at the 2025 Law Day Luncheon sponsored by the Rock Island County, Illinois and Scott County, Iowa Bar Associations.

As a celebration of representative government and the rule of law, Law Day is an opportunity to reflect on great ideas that have informed legal and governmental practice over the centuries. As a lifelong student of political philosophy and political science, rather than a practitioner of law, I tend to approach such ideas by turning to the great minds who discovered and articulated them over the centuries. Believing that these insights are eminently practical in nature, I relish the opportunity to discuss them in light of their applicability to the challenges we face today.

This year’s Law Day theme is a great one indeed: e pluribus unum—“Out of Many, One.” Inscribed on our Great Seal since 1782—and thereby predating the Constitution under which we are currently governed—this is a motto with both ancient roots and distinctively modern and American modes of application.

The authors of our Declaration of Independence and Constitution were familiar with this phrase from a British periodical, The Gentleman’s Magazine, one of several overseas journals that served as an inspiration for Benjamin Franklin’s The Farmer’s Almanac. These publications presented a miscellany of literary items, designed to appeal to a variety of interests while fostering both self-improvement and the betterment of society, based on the conviction that a well-informed, thoughtful, and successful citizenry is the best recipe for a just and prosperous society.

Out of many people, many passions, many professions, and many plans, these publishers sought to advance one great purpose: the betterment of our human estate.

As our founders were well aware, the magazine’s maxim, and the convictions underlying it, had a grand pedigree. They would, for example, have been familiar with the work of the ancient Roman statesman and philosopher, Marcus Tullius Cicero. In an open and extended letter to his son, a work entitled On Duties, Cicero has this to say about the chief source of unity in human life:

“Nothing . . . is more conducive to love and intimacy than compatibility of character in good human beings; for when two people have the same devotions and the same tastes, it is a natural consequence that each loves the other as himself; and the result is, as Pythagoras requires of true friendship, that many are united in one (unus fiat ex pluribus).”

To make one out of many is in fact the goal of Cicero’s classic text, which argues that the pursuits of moral and practical goods, though at times seeming to diverge, are actually harmonious when properly understood. Recognizing that justice and utility are ultimately allied, each of us is enabled to form a unified character from the diverse desires pulling at our heartstrings. In turn, this unity within ourselves, Cicero argues, is the firmest basis of a union with others who share the same noble quest for an honorable and useful way of life.

As Jeffrey Rosen details in his recent book, The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America, Cicero’s On Duties was one of the essential works without which the Declaration of Independence, the Constitution, and the more perfect union they made possible, would have been inconceivable. At bottom, our nation is founded on and organized around the notion that citizens enjoying the natural and personal rights to life, liberty, and the pursuit of happiness can acquire and sustain sufficient prudence and good will to establish, monitor, and abide by a system of laws and customs promoting their collective safety and happiness.

Out of many lives, many liberties, and many paths to happiness, we aspire to build and maintain institutions tending toward one commonweal.

To some, this notion of achieving unity by the pursuit of higher ends may seem a bit naïve. One thing those of us who study politics or practice law may have in common is a sometimes too intimate familiarity with the more conflictual, not to say selfish, or even vengeful side of human nature.

Certainty, any realistic plan for social unity requires us to deal with this less edifying aspect of humanity. And it is also fair to say that our constitution with its balance of governmental powers, and our legal system with its adversarial procedures, are in some part necessitated by those elements of our nature that tend to put us at recurring odds with one another.

Some theorists would in fact reduce government and law to the management of purely selfish desires. According to philosophers such as Thomas Hobbes, our natural condition is a war of all against all, and justice—as useful and essential as it is—must be understood as a wholly artificial construct invented to keep us from destroying ourselves. On this model, law is capable of uniting us, but only by appealing to an obedience grounded on fear—fear of our fellow citizens, and fear of those who make and enforce the law.

Although Hobbes himself was never a popular figure, his way of thinking has been quite influential over the years. In America it gave rise to the so-called bad man theory, according to which law can be reduced (from one angle) to a prediction of what will happen to me if I behave in certain ways, and (from another angle) to an instrument of power imposing the preferences of dominant social forces on society as a whole.

Though some call this view legal realism, I think it’s important to stress that our governmental and legal institutions are originally premised on a very different kind of realism. To return to the formula e pluribus unum, we find another clue to its meaning in St. Augustine—a late Roman theologian well known to many of our founders—who decisively echoes Cicero, but with an important caveat.

Detailing many of the pleasures that friendship had afforded him in his meandering life, Augustine remarks that “these and the like expressions, proceeding out of the hearts of those that loved and were loved again, by the countenance, the tongue, the eyes, and a thousand pleasing gestures, were so much fuel to melt our souls together, and out of many make but one (unus fiat ex pluribus).”

Agreeing with Cicero about the power of virtuous friendship, in this context Augustine adds a warning against the error of “loving a mortal as if he were immortal.” Though the benefits we can provide each other when at our best are real, they are also partial and vulnerable to both internal and external disruptions. The person I rely on now may become less reliable due to age, illness, or accident, a change of career, of mind, or of heart, or simply due to certain foibles, biases, or conflicts of interest. The lesson Augustine draws is not a rejection of human relationships but rather a sober recognition of their limitations.

This attitude is reflected in another motto of the United States, “In God we trust,” implying that when it comes to one’s fellow human beings—and oneself—it is good to trust, but verify! And to have a backup plan.

A very similar perspective on government and law is found in The Federalist Papers, where James Madison insists that institutions must be fashioned in the foreknowledge that human beings are to be governed, not by angels, but by other human beings. Contra Hobbes, this does not mean that we are to be governed only with reference to selfish passions. For, as Madison tells us, “as there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence.”

For Madison, human reason, though fallible, is at its best able to “discern the true interest of [the] country,” and the human heart, though readily biased in its inclinations, is in its finest moments capable of inspiring “patriotism and love of justice.” In fact, Madison goes so far as to say that “justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”

For Madison, as for the other architects of our republic, realism does not consist in assuming the worst about one’s fellow citizens, any more than it consists in assuming the best. Rather, realism gives both the best and the worst in human nature their due. The result is an approach that may seem messy and complicated, but which in the long run is better able to deliver a closer approximation of our end—justice—than any other plan could deliver.

Madison turns to the courtroom for an illustration of this essential point. For obvious reasons, we do not allow a plaintiff, prosecutor, or defendant to judge his or her own case. Few mortals are so dispassionate as to be trusted to this extent. On the other hand, it would be unwise to leave the decision to a third party who, however impartial, was uninformed about the case, anxious to get back to more profitable or amusing affairs, or incurious as to the relevant facts and law. We want judges who are disinterested, not uninterested.

In our legal system, we allow proceedings to be driven by adversaries to a case to ensure that all evidence or arguments that might meaningfully help one side or the other are likely to emerge; and therefore we require judges and juries to come to their unified and unifying decisions through the thicket of contending claims. In this way, we do not guarantee that truth and justice will prevail in every instance, but we call upon both the selfish and unselfish sides of human nature to unite in doing their utmost to ascertain what harm may have occurred, who was responsible, and how best to remedy it.

One may say similar things about our system of representative government. When those in power too readily agree in their aims or methods, it is likely that they represent what Madison calls a faction: a political group activated by passion or interest rather than an adequately reasoned conception of the common good. When, on the other hand, power is divided, various factional mindsets must compete for the ability to govern. At first glance, this may seem to multiply opportunities for selfishness, to give greed a megaphone, or to pollute the political sphere with endless acrimony.

Only when we grant the factional side of human nature sufficient scope, however, is it possible to have confidence that all the possible benefits and harms of a proposed policy will receive sufficient attention. Once that occurs, we can respond by appealing to what Abraham Lincoln called the better angels of our nature, seeking amidst contending claims to discern and propose solutions that are coalitional in nature, taking into account the valid interests and concerns of all parties, and balancing them in a way that best serves the good of each and all.

Though hardly an easy task, this is the task of both politics and law, and it is the way these professions attempt to better our society by identifying solid grounds for unity amidst difference.

When we consider the politics of our day—a certain portion of which also ends up in the courtroom—it may be tempting to conclude that threats to unity are graver than they have been in some time. Without entering into any of the numerous frays that might illustrate this point, I will only note that the challenges we face now tend to loom larger than those of ages past, for the simple but daunting reason that their solution is up to us.

To face a daunting task is not an occasion to despair, but rather to rededicate ourselves to the challenge. As we do so, I would encourage all of us to appreciate and turn to the aid of certain great ideas and institutions by which past generations have striven, however fallibly, to achieve concord in the midst of conflict.

To paraphrase Madison, a perfect unity—one that respects differences while securing the safety and happiness of all—may be ever elusive, but it “ever has been and ever will be pursued.”