Pre.1.1 Preamble: Overview

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 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 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.

Footnotes

  1.  Jump to essay-1 See U.S. Const. pmbl.
  2.  Jump to essay-2 See Henry Conserva, Understanding the Constitution 7 (2011).
  3.  Jump to essay-3 U.S. Const. pmbl
  4.  Jump to essay-4 See James Monroe, The Writings of James Monroe: 1778–1794, at 356 (Stanislaus Murray Hamilton ed., 1898).
  5.  Jump to essay-5 See The Federalist No. 84, at 481 (Alexander Hamilton) (Clinton Rossiter ed., 1999).
  6.  Jump to essay-6 See 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).
  7.  Jump to essay-7 See, e.g., M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403–05 (1819) ; Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 324–25 (1816) ; Chisholm v. Georgia, 2 U.S. (Dall.) 419, 463 (1793) (Wilson, J., concurring); id. at 474–75 (Jay, C.J., concurring).
  8.  Jump to essay-8 See I Joseph Story, Commentaries on the Constitution of the United States § 462 (1833).
  9.  Jump to essay-9 197 U.S. 11, 22 (1905) .
  10.  Jump to essay-10 See, e.g., Ariz. State Legis. v. Ariz. Indep. Redistricting Comm'n, 135 S. Ct. 2652, 2675 (2015) (justifying the constitutional legitimacy of the modern initiative process by noting that the fundamental instrument of government derives its authority from We the People ); Holder v. Humanitarian Law Project, 561 U.S. 1, 40 (2010) (upholding a law criminalizing the provision of certain forms of material support to terrorist organizations against a First and Fifth Amendment challenge, and noting that The Preamble to the Constitution proclaims that the people of the United States ordained and established that charter of government in part to 'provide for the common defence.'); U.S. Term Limits v. Thornton, 514 U.S. 779, 838 (1995) ([A]llowing individual States to craft their own qualifications for Congress would thus 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.'); M'Culloch, 17 U.S. (4 Wheat.)at 403 (rejecting the argument that the powers of the federal government must be exercised in subordination to the states because the federal government proceeds directly from the people; is 'ordained and established,' in the name of the people; and is declared to be ordained, 'in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity').
  11.  Jump to essay-11 See Story, supra note 8, § 462.