Pre.1.2 Preamble: Historical Background

Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

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

Footnotes

  1.  Jump to essay-1 3 Car. 1, c. 1.
  2.  Jump to essay-2 31 Car. 2, c. 2.
  3.  Jump to essay-3 1 W. & M. c. 2.
  4.  Jump to essay-4 12 & 13 Will. 3, c. 2.
  5.  Jump to essay-5 The Declarations and Resolves of the First Continental Congress (Oct. 14, 1774), reprinted in 1 Sources and Documents of the U.S. Constitutions: National Documents 1492–1800, at 291 (William F. Swindler ed., 1982) [hereinafter Sources & Documents ].
  6.  Jump to essay-6See The Declaration of Independence para. 1 (U.S. 1776), reprinted in Sources & Documents, supra note 5 , at 321.
  7.  Jump to essay-7See, e.g., Mass. Const. of 1780, pmbl. (stating the objects of the Massachusetts Constitution of 1780 were to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it, with the power of enjoying in safety and tranquillity their natural rights, and blessings of life and, to this end, a government was created for Ourselves and Posterity); N.H. Const. of 1776, pmbl. (creating a government for the preservation of peace and good order, and for the security of the lives and properties of the inhabitants of this colony); N.Y. Const. of 1777, pmbl. (creating a government best calculated to secure the rights and liberties of the good people of this State); Pa. Const. of 1776, pmbl. (stating the government was created for the protection of the community as such, and to enable the individuals who compose it to enjoy their natural rights); Vt. Const. of 1786, pmbl. (establishing a constitution to best promote the general happiness of the people of this State, and their posterity); Va. Const. of 1776, Bill of Rights, pmbl. (stating the representatives of the good people of Virginia created their bill of rights, which pertain to them and their posterity).
  8.  Jump to essay-8See Articles of Confederation of 1781, pmbl., reprinted in Sources & Documents, supra note 5 , at 335.
  9.  Jump to essay-9See Morris D. Forkosch, Who Are the People in the Preamble to the Constitution?, 19 Case W. Res. L. Rev. 644, 688–89 & n.187 (1968) (examining various records of the first two months of the Philadelphia Convention and concluding that the Preamble was completely ignored in the early debates).
  10.  Jump to essay-10See 2 The Records of the Federal Convention of 1787, at 137 (Max Farrand ed., 1966) [hereinafter Farrand's Records ].
  11.  Jump to essay-11 Id.
  12.  Jump to essay-12 Id.
  13.  Jump to essay-13 Id. at 177.
  14.  Jump to essay-14 Id. at 193.
  15.  Jump to essay-15See Charles Warren, The Making of the Constitution 394 (1928) (arguing it was necessary to eliminate from the preamble the names of the specific States; for it could not be known, at the date of the signing of the Preamble and the rest of the Constitution by the delegates, just which of the thirteen States would ratify).
  16.  Jump to essay-16It is generally acknowledged that the Preamble's author was Gouverneur Morris, as the language from the federal preamble echoes that of Morris's home state's Constitution. See Carl Van Doren, The Great Rehearsal: The Story of the Making and Ratifying of the Constitution of the United States 160 (1948); see also Richard Brookhiser, Gentleman Revolutionary: Gouverneur Morris, the Rake Who Wrote the Constitution 90 (2003) (claiming the Preamble was the one part of the Constitution that Morris wrote from scratch).
  17.  Jump to essay-17 Farrand's Records, supra note 10 , at 590.
  18.  Jump to essay-18 Id.
  19.  Jump to essay-19See Dennis J. Mahoney, Preamble , in 3 Encyclopedia of the American Constitution 1435 (Leonard W. Levy et al. eds., 1986) (noting there is no record of any objection to the Preamble as it was reported by the committee).
  20.  Jump to essay-20See Akhil Reed Amar, America's Constitution: A Biography 7 (2005) (In the extraordinary extended and inclusive ratification process . . . Americans regularly found themselves discussing the Preamble itself.).
  21.  Jump to essay-21See Jonathan Elliot, 3 Elliot's Debates on the Federal Constitution 22 (2d. ed. 1996).
  22.  Jump to essay-22See id. at 37.
  23.  Jump to essay-23 Id. at 419.
  24.  Jump to essay-24 Id. at 434–35.
  25.  Jump to essay-25See The Federalist No. 84, at 481 (Alexander Hamilton) (Clinton Rossiter ed., 1999) (Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.).
  26.  Jump to essay-26See Brutus No. XII (Feb. 7 & 14, 1788), reprinted in The Debate on the Constitution: Federalist and Anti-Federalist Speeches, Articles and Letters During the Struggle Over Ratification, Part Two: January to August 1788, at 174 (Bernard Bailyn ed., 1993).
  27.  Jump to essay-27See The Federalist No. 5, at 18 (John Jay) (Clinton Rossiter ed., 1999) ([W]eakness and divisions at home would invite dangers from abroad; and that nothing would tend more to secure us from them than union, strength, and good government within ourselves.).
  28.  Jump to essay-28See The Federalist No. 39, at 213 (James Madison) (Clinton Rossiter ed., 1999).
  29.  Jump to essay-29See Gordon S. Wood, The Creation of the American Republic 1776–1787, at 409–13 (1969) (noting that the Framer's experience of government under the Articles of Confederation, including the famous debtors' uprising called Shay's Rebellion, led to fear that, unless checks were imposed on majority rule, the debtor-majority might infringe the rights of the creditor-minority).
  30.  Jump to essay-30See The Federalist No. 51, at 293 (James Madison) (Clinton Rossiter ed., 1999).
  31.  Jump to essay-31See The Federalist Nos. 2–5, at 5–21 (John Jay) (Clinton Rossiter ed., 1999) (describing foreign dangers posed to America); see id. Nos. 6–8, at 21–39 (Alexander Hamilton) (describing concerns over domestic factions and insurrection in America).
  32.  Jump to essay-32See Articles of Confederation of 1781, art. III, reprinted in Sources & Documents, supra note 5 , at 335 (The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.); id. art. VIII, reprinted in Sources & Documents, supra note 5 , at 338 (All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.).
  33.  Jump to essay-33See Letter from James Madison to Andrew Stevenson (Nov. 17, 1830), reprinted in 2 The Founders' Constitution 453, 456 (Philip B. Kurland & Ralph Lerner eds., 1987) (contending that the terms common defence and general welfare, copied from the Articles of Confederation, were regarded in the new as in the old instrument, . . . as general terms, explained and limited by the subjoined specifications).
  34.  Jump to essay-34See The Federalist No. 23, at XX (Alexander Hamilton) (Clinton Rossiter ed., 1999).
  35.  Jump to essay-35See I Joseph Story, Commentaries on the Constitution of the United States § 462 (1833).
  36.  Jump to essay-36See id. (concluding the Preamble's true office is to expound the nature, and extent, and application of the powers actually conferred by the constitution); see also 1 Annals of Cong. 717–19 (1789) (noting several Members of the First Congress described the Preamble as comprising no part of the Constitution); Letter from James Madison to Robert S. Garnett (Feb. 11, 1824), in 9 The Writings of James Madison 176–77 (Gaillard Hunt ed., 1910) (The general terms or phrases used in the introductory propositions . . . were never meant to be inserted in their loose form in the text of the Constitution. Like resolutions preliminary to legal enactments it was understood by all, that they were to be reduced by proper limitations and specifications . . . .).
  37.  Jump to essay-37See Story, supra note 35 , § 463 (We have the strongest assurances, that this preamble was not adopted as a mere formulary; but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government. The obvious object was to substitute a government of the people, for a confederacy of states; a constitution for a compact.).
  38.  Jump to essay-38 Farrand's Records, supra note 10 , at 137 ([T]he object of our preamble ought to be to briefly declare, that the present federal government is insufficient to the general happiness [and] that the conviction of this fact gave birth to this convention.).
  39.  Jump to essay-39See Erwin Chemerinsky & Michael Stokes Paulsen, Common Interpretation: The Preamble, Interactive Constitution (last visited Nov. 1, 2018), https://constitutioncenter.org/interactive-constitution/interpretation/preamble-ic/interps/37 ([T]he Preamble declares that what the people have ordained and established is 'this Constitution'—referring, obviously enough, to the written document that the Preamble introduces. . . . The U.S. Constitution contrasts with the arrangement of nations like Great Britain, whose 'constitution' is a looser collection of written and unwritten traditions constituting the established practice over time. America has a written constitution, not an unwritten one.); see also Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, 103 Nw. U. L. Rev. 857, 869 (2009) ('[T]his Constitution' means, each time it is invoked, the written document.).