Preamble

Pre.1 Overview of the Preamble

The Preamble introduces the American Constitution.¹ Its majestic words are the first words people see when they read the Constitution, and it is a common ritual that school children throughout the Nation memorize the Preamble when learning about the Nation’s Founding document.² The Preamble itself imparts three central concepts to the reader: (1) the source of power to enact the Constitution (i.e., “the People of the United States”); (2) the broad ends to which the Constitution is “ordain[ed] and establish[ed]”; and (3) the authors’ intent for the Constitution to be a legal instrument of lasting “Posterity.”³ Yet, as discussed in more detail below, the Preamble’s origins and its continued relevance in constitutional law are unclear and, for many people, unknown.

The uncertainty surrounding the Preamble may be surprising, as the Constitution’s introduction would seem central to any debate over the document’s meaning. And, in fact, at least two of the Founding Fathers appeared to view the Preamble as an important feature of the document critical to the legal framework it established. James Monroe, as a delegate to the Virginia ratifying convention, referred to the Preamble as the “Key of the Constitution,”⁴ and Alexander Hamilton argued in the Federalist No. 84 that the existence of the Preamble obviated any need for a bill of rights.⁵ Nonetheless, the Preamble was not the subject of any extensive debate at the Constitutional Convention in Philadelphia, having been added to the Constitution as an apparent afterthought during the final drafting process.⁶

In the years following the Constitution’s enactment, the Supreme Court of the United States cited the Preamble in several important judicial decisions,⁷ but the legal weight of the Preamble was largely disclaimed. As Justice Joseph Story noted in his Commentaries, the Preamble “never can be resorted to, to enlarge the powers confided to the general government, or any of its departments.”⁸ The Supreme Court subsequently endorsed Justice Story’s view of the Preamble, holding in Jacobson v. Massachusetts that, while the Constitution’s introductory paragraph “indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded by the Court as the source of any substantive power conferred on” the federal government.⁹ Nonetheless, while the Court has not viewed the Preamble as having any direct, substantive legal effect, the Court has referenced the broad precepts of the Constitution’s introduction to confirm and reinforce its interpretation of other provisions within the document.¹⁰ As such, while the Preamble does not have any specific legal status, Justice Story’s observation that the “true office” of the Preamble is “to expound the nature, and extent, and application of the powers actually conferred by the Constitution” appears to capture its import.¹¹ More broadly, while the Preamble may have little significance in a court of law, the preface to the Constitution remains an important part of the Nation’s constitutional dialogue, inspiring and fostering broader understandings of the American system of government. In this vein, this essay considers the origins of the Preamble, exploring its historical roots and how it came to be a part of the Constitution, before discussing the legal and practical significance of the Constitution’s opening words in the time since the ratification.

Pre.2 Historical Background on the Preamble

The Preamble’s origins predate the Constitutional Convention—preambles to legal documents were relatively commonplace at the time of the Nation’s Founding. In several English laws that undergird American understandings of constitutional rights, including the Petition of Rights of 1628,¹ the Habeas Corpus Act of 1679,² the Bill of Rights of 1689,³ and the Act of Settlement of 1701,⁴ the British Parliament included prefatory text that explained the law’s objects and historical impetus. The tradition of a legal preamble continued in the New World. The Declarations and Resolves of the First Continental Congress in 1774 included a preamble noting the many grievances the thirteen colonies held against British rule.⁵ Building on this document, in perhaps the only preamble that rivals the fame of the Constitution’s opening lines, the Declaration of Independence of 1776 announced: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The Declaration then listed a series of complaints against King George III, before culminating in a formal declaration of the colonies’ independence from the British crown.⁶ Moreover, several state constitutions at the time of the founding contained introductory text that echoed many of the themes of the 1776 Declaration.⁷ The Articles of Confederation that preceded the Constitution had their own preamble—authored by “we the undersigned Delegates of the States”—declaring the “Confederation and perpetual Union” of the thirteen former colonies.⁸

While the concept of a preamble was well-known to the Constitution’s Framers, little debate occurred at the Philadelphia Convention with respect to whether the Constitution required prefatory text or as to the particular text agreed upon by the delegates. For the first two months of the Convention, no proposal was made to include a preamble in the Constitution’s text.⁹ In late July 1787, the Convention’s Committee of Detail was formed to prepare a draft of a constitution, and during those deliberations, Committee member Edmund Randolph of Virginia suggested for the first time that “[a] preamble seems proper.”¹⁰ Importantly, however, Randolph considered the Constitution to be a legal, as opposed to a philosophical document, and rejected the idea of having a lengthy “display of theory” to explain “the ends of government and human politics” akin to the Declaration of Independence’s preamble or those of several state constitutions.¹¹ Articulating what would ultimately become the Preamble’s underlying rationale, Randolph instead argued that any prefatory text to the Constitution should be limited to explaining why the government under the Articles of Confederation was insufficient and why the “establishment of a supreme legislative[,] executive[,] and judiciary” was necessary.¹²

The initial draft of the Constitution’s Preamble was, however, fairly brief and did not specify the Constitution’s objectives. As released by the Committee of Detail on August 6, 1787, this draft stated: “We the People of the States of New-Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare and establish the following Constitution for the Government of Ourselves and our Posterity.”¹³ While this draft was passed unanimously by the delegates,¹⁴ the Preamble underwent significant changes after the draft Constitution was referred to the Committee of Style on September 8, 1787. Perhaps with the understanding that the inclusion of all thirteen of the states in the Preamble was more precatory than realistic,¹⁵ the Committee of Style, led by Gouverneur Morris of Pennsylvania,¹⁶ replaced the opening phrase of the Constitution with the now-familiar introduction “We, the People of the United States.”¹⁷ Moreover, the Preamble, as altered by Morris, listed six broad goals for the Constitution: “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty.”¹⁸ The record from the Philadelphia Convention is silent, however, as to why the Committee of Style altered the Preamble, and there is no evidence of any objection to the changes the Committee made to the final version of the Preamble.¹⁹

While the Preamble did not provoke any further discussion in the Philadelphia Convention, the first words of the Constitution factored prominently in the ratifying debates that followed.²⁰ For instance, Anti-Federalists, led by Patrick Henry of Virginia, criticized the opening lines of the Constitution at the Virginia ratifying convention:

Who authorized them to speak the language of We, the people, instead of We, the

States? States are the characteristics and the soul of a confederation. If the states be

not the agents of this compact, it must be one great, consolidated, national

government, of the people of all the states.²¹

In response, Edmund Pendleton replied: “[W]ho but the people can delegate powers? Who but the people have a right to form government?”²² Similarly, John Marshall declared that both state and federal “governments derive [their] powers from the people, and each was to act according to the powers given it.”²³ Echoing these themes at the Pennsylvania Ratification Convention, James Wilson defended the “We the People” language, arguing that “all authority is derived from the people” and that the Preamble merely announces the inoffensive principle that “people have a right to do what they please with regard to the government.”²⁴

The Preamble also figured into the written debates over whether to ratify the Constitution. For instance, countering criticisms that the Constitution lacked a bill of rights, Alexander Hamilton in the Federalist No. 84 quoted the Preamble, arguing it obviated any need for an enumeration of rights.²⁵ An Anti-Federalist pamphlet authored under the pseudonym Brutus, noting the Preamble’s references to a “more perfect union” and “establish[ment] [of] justice,” argued that the Constitution would result in the invalidation of state laws that interfered with these objectives, resulting in the abolition of “all inferior governments” and giving “the general one complete legislative, executive, and judicial powers to every purpose.”²⁶ While not disputing the need for national union in the wake of their experience under the Articles of Confederation,²⁷ supporters of the Constitution rejected the notion that their proposed government was truly a “national one” because “its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”²⁸

In particular, those writing in support of the Constitution’s ratification cited the Preamble’s language. The Constitution’s goals of “establish[ing] justice” and “secur[ing] the blessings of liberty”—prompted by the perception that state governments at the time of the framing were violating individual liberties, including property rights, through the tyranny of popular majorities²⁹—was a central theme of the Federalist Papers. For instance, in the Federalist No. 51 James Madison described justice as “the end of government . . . [and] civil society” that “has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”³⁰ Similarly, the Constitution’s goals of “ensur[ing] domestic tranquility” and “provid[ing] for the common defence” were noted in the Federalist Papers later attributed to John Jay and Alexander Hamilton, who described both the foreign threats and interstate conflicts that faced a disunited America as an argument for ratification.³¹ Finally, the Preamble’s references to the “common defence” and the “general welfare,” which mirrored the language of the Articles of Confederation,³² were understood by Framers like James Madison to underscore that the new federal government under the Constitution would generally provide for the national good better than the government it was replacing.³³ For example, calling the Confederation’s efforts to provide for the “common defense and general welfare” an “ill-founded and illusory” experiment, Alexander Hamilton in the Federalist No. 23 argued for a central government with the “full power to levy troops; to build and equip fleets; . . . to raise revenues” for an army and navy; and to otherwise manage the “national interest.”³⁴

Nonetheless, there is no historical evidence suggesting the Constitution’s Framers conceived of a Preamble with any substantive legal effect, such as granting power to the new government or conferring rights to those subject to the federal government.³⁵ Instead, the founding generation appeared to view the Constitution’s prefatory text as generally providing the foundation for the text that followed.³⁶ In so doing, the Preamble ultimately reflects three critical understandings that the Framers had about the Constitution. First, the Preamble specified the source of the federal government’s sovereignty as being “the People.”³⁷ Second, the Constitution’s introduction articulated six broad purposes, all grounded in the historical experiences of being governed under the Articles of Confederation.³⁸ Finally, and perhaps most critically, the Preamble, with its conclusion that “this Constitution” was established for “ourselves and our Posterity,” underscored that, unlike the constitutions in Great Britain and elsewhere at the time of the founding, the American Constitution was a written and permanent document that would serve as a stable guide for the new nation.³⁹

Pre.3 Legal Effect of the Preamble

In the years following the Constitution’s ratification, the Preamble has had a relatively minor role as a matter of legal doctrine, but an outsized role, particularly outside of the courtroom, in broadly embodying the American constitutional vision. With regard to the legal effect of the Constitution’s preface, in the early years of the Supreme Court, it did reference the Preamble’s words in some of the most important cases interpreting the Constitution. For example, in 1793, two Members of the Court cited the Preamble in Chisholm v. Georgia to argue that the “people,” in establishing the Constitution, necessarily subjected the State of Georgia to the jurisdiction of the federal courts in exchange for accomplishing the six broad goals listed in the Constitution’s Preamble.¹ Similarly, in Martin v. Hunter’s Lessee , the Court relied on the Preamble in concluding that the Constitution permitted the Court to exercise appellate jurisdiction over the final judgments of the highest court of a state when adjudicating questions of federal law, noting that the Constitution was established by the “people of the United States” who, in turn, “had a right to prohibit the states” from exercising any powers that were incompatible with the “objects of the general compact.”² And in M’Culloch v. Maryland, Chief Justice John Marshall echoed these themes in upholding the constitutionality of a national bank, quoting the words of the Preamble when arguing for the supremacy of the law of the “people” over the laws of the states.³

Nonetheless, while the Court during the first century of the Nation’s existence referenced the Preamble’s language while interpreting the Constitution, it does not appear that the Court has ever attached any legal weight to the Preamble standing alone. Chief Justice John Jay, while serving as a circuit judge, concluded that a preamble to a legal document cannot be used to abrogate other text within it; instead, introductory language can be used to resolve two competing readings of the text.⁴ Similarly, Justice Joseph Story argued in his Commentaries that the Preamble, while generally providing the ability to “expound the nature, and extent, and application” of the powers created by the Constitution, “never can be resorted to, to enlarge the powers confided to the general government, or any of its departments.”⁵

In 1908, the Supreme Court squarely adopted Justice Story’s view of the Preamble in Jacobson v. Massachusetts, holding that while the Constitution’s introductory paragraph “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 federal government.⁶ Instead, “[s]uch powers embrace only those expressly granted in the body of the Constitution, and such as may be implied from those so granted.”⁷ In this vein, the Court has rarely cited the Preamble in its decisions interpreting the Constitution,⁸ and the Court continues to interpret prefatory text in the Constitution as announcing general purposes of the text that follows.⁹

While the Supreme Court has not viewed the Preamble to have much direct, legal effect, the Court continues to rely on the broad precepts of the Constitution’s introduction to confirm and reinforce its interpretation of other provisions within the document. For instance, in 2015 in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court held that Arizona’s process for redistricting, which was created not by an act of the state legislature, but by a popular initiative, was constitutionally permissible.¹⁰ In doing so, the Court declared that the “fundamental instrument of government derives its authority from ‘We the People.’”¹¹ Likewise, the Court referenced the Preamble’s language proclaiming that the “United States ordained and established that charter of government in part to ‘provide for the common defence’” in upholding a law criminalizing certain forms of material support to terrorist organizations.¹² And in United States Term Limits, Inc. v. Thornton, the Court, in concluding that states could not “craft their own qualifications for Congress,” reasoned that the alternative would “erode the structure envisioned by the Framers, a structure that was designed, in the words of the Preamble to our Constitution, to form a ‘more perfect Union.’”¹³

The Preamble appears to have had a more significant influence outside of judicial opinions in statements from the leaders of the political branches of government, often factoring in various debates during the early history of the nation. For instance, during the debates in the First Congress over the constitutionality of the Bank of the United States, congressional leaders, like Elbridge Gerry of the Massachusetts, quoted the Preamble to note the broad “objects for which the Constitution was established” and to justify the establishment of a national bank to promote the “general welfare.”¹⁴ And the Preamble featured in early congressional debates over the role of the new government in foreign affairs. For example, during the Tenth Congress, Henry Southard of New Jersey cited the Preamble in arguing in favor of Congress arming and equipping the militia of the United States, recognizing that it was the “object of the establishment of [the federal] government” to provide for the “common defence” against “foreign enemies.”¹⁵ Perhaps one of the most famous references to the Preamble in the halls of Congress came in a speech of Senator Daniel Webster in the midst of the nullification debates of the 1830s, wherein he quoted the Preamble to argue that the Constitution was “perpetual and immortal,” establishing a union “which shall last through all time.”¹⁶

While the Preamble may have had particular relevance to a number of isolated questions before the Congress in the Nation’s early years, Presidents and congressional leaders have more generally relied on the Preamble’s laudatory phrases in exploring the broader import of the Constitution and the general purposes of American government. For instance, President James Monroe referred to the Preamble as the “Key of the Constitution,”¹⁷ and in his inaugural address, President John Quincy Adams described the “first words” of the Constitution as declaring the purposes for which the government “should be invariably and sacredly devoted.”¹⁸ Echoing these themes in his own first inaugural address, President Abraham Lincoln invoked the Preamble’s “perfect union” language to note the importance of national unity as the country faced the brink of civil war.¹⁹ In the midst of another constitutional crisis—that which arose in 1937 amid clashes over the constitutionality of the New Deal—President Franklin Roosevelt stated the need to “read and reread the preamble of the Constitution,” as its words suggested that the document could be “used as an instrument of progress, and not as a device for prevention of action.”²⁰ Decades later, Representative Barbara Jordan, the first African-American woman elected to the House of Representatives from the South, quoted the Preamble in a statement before the House Judiciary Committee as it considered the Articles of Impeachment for President Richard Nixon.²¹ In that statement, she noted that “through the process of amendment, interpretation, and court decision” she had been included in “We, the people” and was now serving as an “inquisitor” aiming to preserve the goals of the Constitution.²²

In more recent years, the political branches have continued to look to the Preamble, not so much for answering specific legal questions, but more so for discussing broad constitutional norms. Indeed, in a 2007 speech on the House floor discussing the modern view of the Preamble, Representative Scott Garrett of New Jersey described the preface to the Constitution as a “condensed version [of] what the Founders were intending in” the Constitution and for the Nation.²³ In this vein, President Ronald Reagan described the Preamble of the Constitution and its opening words of “We the People” as embodying “the genius, the hope, and the promise of America forever and for all mankind.”²⁴ And President Barack Obama called the vision of the Preamble’s reference to a “more perfect union” to be the vision of a “true United States of America, bound together by a recognition of the common good, [that] guided our country through its darkest hour and helped it re-emerge as a beacon of freedom and equality under law.”²⁵ As a result, while the Preamble may have little legal weight in a court of law and may not be dispositive in resolving particular legal disputes before the political branches, the preface to the Constitution remains an important facet of the national dialogue on the country’s founding document, inspiring and fostering deeper understandings of the American system of government.