Pre.1.2 Preamble: Historical Background

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