THE PREAMBLE

TABLE OF CONTENTS

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Pre.1 Overview of the Preamble

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Pre.2 Historical Background on the Preamble

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Pre.3 Legal Effect of the Preamble

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THE PREAMBLE

Pre.1 Overview of the Preamble

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.

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.

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.”

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,”

and

Alexander Hamilton argued in the Federalist No. 84 that the existence of the Preamble

obviated any need for a bill of rights.

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.

In the years following the Constitution’s enactment, the Supreme Court of the United

States cited the Preamble in several important judicial decisions,

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.”

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.

Nonetheless, while the Court has not viewed the

Preamble as having any direct, substantive legal effect, the Court has referenced the broad

See U.S. C ONST. pmbl.

See HENRY CONSERVA,UNDERSTANDING THE CONSTITUTION 7 (2011).

U.S. C ONST. pmbl.

See JAMES MONROE,THE WRITINGS OF JAMES MONROE: 1778–1794, at 356 (Stanislaus Murray Hamilton ed., 1898).

See THE FEDERALIST NO. 84 (Alexander Hamilton).

See Dennis J. Mahoney, Preamble, in 3ENCYCLOPEDIA 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”).

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).

See IJOSEPH STORY,COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 462 (1833).

197 U.S. 11, 22 (1905).

119

precepts of the Constitution’s introduction to confirm and reinforce its interpretation of other

provisions within the document.

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.

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

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,

the Habeas Corpus Act of 1679,

the Bill of Rights of 1689,

and the

Act of Settlement of 1701,

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.

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.”

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’”).

See STORY, supra note 8, § 462.

3Car.1,c.1.

31Car.2,c.2.

1W.&M.c.2.

12 & 13 Will. 3, c. 2.

THE DECLARATIONS AND RESOLVES OF THE FIRST CONTINENTAL CONGRESS (Oct. 14, 1774), reprinted in 1SOURCES AND

DOCUMENTS OF THE U.S. CONSTITUTIONS:NATIONAL DOCUMENTS 1492–1800, at 291 (William F. Swindler ed., 1982) [hereinafter

SOURCES &DOCUMENTS ].

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Overview of the Preamble

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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.

Moreover,

several state constitutions at the time of the founding contained introductory text that echoed

many of the themes of the 1776 Declaration.

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.

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.

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.”

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.

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.

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.”

While this draft was passed unanimously by the delegates,

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

See THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776), reprinted in SOURCES &DOCUMENTS, supra note 5, at 321.

See, 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. C

ONST. 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”); P

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”); V

A.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”).

See ARTICLES OF CONFEDERATION OF 1781, pmbl., reprinted in SOURCES &DOCUMENTS, supra note 5, at 335.

See Morris D. Forkosch, Who Are the “People” in the Preamble to the Constitution?,19CASE W. R ES.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).

See 2THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 137 (Max Farrand ed., 1966) [hereinafter FARRAND’S

RECORDS].

Id.

Id. at 177.

Id. at 193.

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of the states in the Preamble was more precatory than realistic,

the Committee of Style, led

by Gouverneur Morris of Pennsylvania,

replaced the opening phrase of the Constitution with

the now-familiar introduction “We, the People of the United States.”

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.”

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.

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.

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.

In response, Edmund Pendleton replied: “[W]ho but the people can delegate powers? Who

but the people have a right to form government?”

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.”

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.”

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.

An Anti-Federalist pamphlet authored under the pseudonym Brutus,

noting the Preamble’s references to a “more perfect union” and “establish[ment] [of] justice,”

See 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”).

It 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”).

FARRAND’S RECORDS, supra note 10, at 590.

Id.

See Dennis J. Mahoney, Preamble, in 3ENCYCLOPEDIA 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”).

See AKHIL REED AMAR,AMERICA’S CONSTITUTION:ABIOGRAPHY 7 (2005) (“In the extraordinary extended and inclusive

ratification process . . . Americans regularly found themselves discussing the Preamble itself.”).

See JONATHAN ELLIOT,3ELLIOT’S DEBATES ON THE FEDERAL CONSTITUTION 22 (2d. ed. 1996).

See id. at 37.

Id. at 419.

Id. at 434–35.

See THE FEDERALIST NO. 84 (Alexander Hamilton) (“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.”).

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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.”

While not

disputing the need for national union in the wake of their experience under the Articles of

Confederation,

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.”

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 majorities

—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.”

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.

Finally, the

Preamble’s references to the “common defence” and the “general welfare,” which mirrored the

language of the Articles of Confederation,

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.

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

See 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).

See THE FEDERALIST NO. 5 (John Jay) (“[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.”).

See THE FEDERALIST NO. 39 (James Madison).

See 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).

See THE FEDERALIST NO. 51 (James Madison).

See THE FEDERALIST NOS. 2–5 (John Jay) (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).

See 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 S

OURCES &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.”).

See Letter from James Madison to Andrew Stevenson (Nov. 17, 1830), reprinted in 2THE 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”).

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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.”

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.

Instead, the

founding generation appeared to view the Constitution’s prefatory text as generally providing

the foundation for the text that followed.

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.”

Second,

the Constitution’s introduction articulated six broad purposes, all grounded in the historical

experiences of being governed under the Articles of Confederation.

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.

Pre.3 Legal Effect of the Preamble

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.

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

See THE FEDERALIST NO. 23 (Alexander Hamilton).

See IJOSEPH STORY,COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 462 (1833).

See 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 1ANNALS 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 9T

HE 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 . . . .”).

See 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.”).

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.”).

See Erwin Chemerinsky & Michael Stokes Paulsen, Common Interpretation: The Preamble, Interactive

Constitution, C

ONST.CTR. (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 N

W.U.L.REV. 857, 869 (2009) (“‘[T]his Constitution’ means, each time it is invoked, the

written document.”).

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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.

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.”

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.

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.

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.”

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.

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.”

In this vein, the

Court has rarely cited the Preamble in its decisions interpreting the Constitution,

and the

Court continues to interpret prefatory text in the Constitution as announcing general

purposes of the text that follows.

See 2 U.S. (Dall.) 419, 463 (1793) (Wilson, J., concurring) (“In order, therefore, to form a more perfect union, to

establish justice, to ensure domestic tranquillity, to provide for common defence, and to secure the blessings of liberty,

those people, among whom were the people of Georgia, ordained and established the present Constitution. By that

Constitution Legislative power is vested, Executive power is vested, Judicial power is vested.”); Id. at 474–75 (Jay, C.J.,

concurring) (listing the six “objects” of the Constitution and concluding that a state could be sued by citizens of another

state in federal court).

14 U.S. (1 Wheat.) 304, 324–25 (1816).

17 U.S. (1 Wheat.) 316, 403–05 (1819) (“The 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.’ The assent

of the States, in their sovereign capacity, is implied, in calling a convention, and thus submitting that instrument to the

people.”).

Jones v. Walker, 13 F. Cas. 1059, 1065 (C.C.D. Va. 1800) (Jay, C.J.) (“A preamble cannot annul enacting clauses;

but when it evinces the intention of the legislature and the design of the act, it enables us, in cases of two constructions,

to adopt the one most consonant to their intention and design.”).

See IJOSEPH STORY,COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 462 (1833).

197 U.S. 11, 22 (1905).

Id.

One study concluded that from 1825 to 1990, the Supreme Court cited the Preamble only twenty-four times,

mostly in dissenting opinions. See Milton Handler, Brian Leiter & Carole E. Handler, A Reconsideration of the

Relevance and Materiality of the Preamble in Constitutional Interpretation,12C

ARDOZO L. REV. 117, 120–21 n.14 (1991).

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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.

In doing so, the Court declared

that the “fundamental instrument of government derives its authority from ‘We the People.’”

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.

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.’”

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.”

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.”

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.”

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

For an extensive discussion of the Court’s citations to the Preamble, see Dan Himmelfarb, The Preamble in

Constitutional Interpretation,2SETON HALL CONST. L.J. 127 (1992).

Cf. District of Columbia v. Heller, 554 U.S. 570, 578 (2008) (“The Second Amendment is naturally divided into

two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather

announces a purpose.”); see also id. at 578 n.3 (“[I]n America the settled principle of law is that the preamble cannot

control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms.”

(internal citations and quotations marks omitted)).

135 S. Ct. 2652, 2659 (2015).

Id. at 2675.

Holder v. Humanitarian Law Project, 561 U.S. 1, 40 (2010); see also Wayte v. United States, 470 U.S. 598, 612

(1985) (remarking that the “Framers listed ‘[providing] for the common defence,’ . . . as a motivating purpose for the

Constitution” in noting the values promoted by the challenged policy of passively enforcing the selective service

registration requirement); Greer v. Spock, 424 U.S. 828, 837 (1976) (noting “[o]ne of the very purposes for which the

Constitution was ordained and established was to ‘provide for the common defence,’” in upholding a law restricting

political campaigning on a military base).

514 U.S. 779, 838 (1995) .

See 2ANNALS OF CONG. 1947–48 (1791).

See 17 ANNALS OF CONG. 1047 (1807).

Daniel Webster, The Constitution Not a Compact Between Sovereign States (Feb. 16, 1833), reprinted in 3THE

WORKS OF DANIEL WEBSTER 452, 471 (9th ed. 1856).

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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,”

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.”

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.

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.”

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.

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.

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.

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.”

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.”

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.

See JAMES MONROE,THE WRITINGS OF JAMES MONROE: 1778–1794, at 356 (Stanislaus Murray Hamilton ed., 1898).

John Quincy Adams, Inaugural Address (Mar. 4, 1825), reprinted in THE ANNALS OF AMERICA 509 (Abiel Holmes

ed., 2d ed. 1829).

Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in 4THE COLLECTED WORKS OF ABRAHAM

LINCOLN 265 (Roy P. Basler ed., 1953) (“In 1787, one of the declared objects for ordaining and establishing the

Constitution, was ‘to form a more perfect union.’”).

See 81 CONG.REC. 84 (1937).

Debate on Articles of Impeachment: Hearings on H. Res. 803 Before the H. Comm. on the Judiciary, 93d Cong.

111 (1974) (statement of Rep. Jordan).

Id.

153 CONG.REC. H2722 (daily ed. Mar. 20, 2007) (statement of Rep. Garrett).

Proclamation No. 5634, 50 Fed. Reg. 13,622 (Apr. 21, 1987).

Proclamation No. 8367, 74 Fed. Reg. 20,861 (May 5, 2009).

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