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U.S. Constitution - Preamble

Author: Signed in convention September 17, 1787. Ratified June 21, 1788

We the People of the United States, in Order 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 to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Common Interpretation

The Preamble

THE PREAMBLE

By Erwin Chemerinsky and Michael Stokes Paulsen

The Preamble of the U.S. Constitution—the document’s famous first fifty-two words— introduces everything that is to follow in the Constitution’s seven articles and twenty-seven amendments. It proclaims who is adopting this Constitution: “We the People of the United States.” It describes why it is being adopted—the purposes behind the enactment of America’s charter of government. And it describes what is being adopted: “this Constitution”—a single authoritative written text to serve as fundamental law of the land. Written constitutionalism was a distinctively American innovation, and one that the framing generation considered the new nation’s greatest contribution to the science of government.

The word “preamble,” while accurate, does not quite capture the full importance of this provision. “Preamble” might be taken—we think wrongly—to imply that these words are merely an opening rhetorical flourish or frill without meaningful effect. To be sure, “preamble” usefully conveys the idea that this provision does not itself confer or delineate powers of government or rights of citizens. Those are set forth in the substantive articles and amendments that follow in the main body of the Constitution’s text. It was well understood at the time of enactment that preambles in legal documents were not themselves substantive provisions and thus should not be read to contradict, expand, or contract the document’s substantive terms.

But that does not mean the Constitution’s Preamble lacks its own legal force. Quite the contrary, it is the provision of the document that declares the enactment of the provisions that follow. Indeed, the Preamble has sometimes been termed the “Enacting Clause” of the Constitution, in that it declares the fact of adoption of the Constitution (once sufficient states had ratified it): “We the People of the United States . . . do ordain and establish this Constitution for the United States of America.”

Importantly, the Preamble declares who is enacting this Constitution—the people of “the United States.” The document is the collective enactment of all U.S. citizens. The Constitution is “owned” (so to speak) by the people, not by the government or any branch thereof. We the People are the stewards of the U.S. Constitution and remain ultimately responsible for its continued existence and its faithful interpretation.

It is sometimes observed that the language “We the People of the United States” was inserted at the Constitutional Convention by the “Committee of Style,” which chose those words—rather than “We the People of the States of . . .”, followed by a listing of the thirteen states, for a simple practical reason: it was unclear how many states would actually ratify the proposed new constitution. (Article VII declared that the Constitution would come into effect once nine of thirteen states had ratified it; and as it happened two states, North Carolina and Rhode Island, did not ratify until after George Washington had been inaugurated as the first President under the Constitution.) The Committee of Style thus could not safely choose to list all of the states in the Preamble. So they settled on the language of both “We the People of the United States.”

Nonetheless, the language was consciously chosen. Regardless of its origins in practical considerations or as a matter of “style,” the language actually chosen has important substantive consequences. “We the People of the United States” strongly supports the idea that the Constitution is one for a unified nation, rather than a treaty of separate sovereign states. (This, of course, had been the arrangement under the Articles of Confederation, the document the Constitution was designed to replace.) The idea of nationhood is then confirmed by the first reason recited in the Preamble for adopting the new Constitution—“to form a more perfect Union.” On the eve of the Civil War, President Abraham Lincoln invoked these words in support of the permanence of the Union under the Constitution and the unlawfulness of states attempting to secede from that union.

The other purposes for adopting the Constitution, recited by the Preamble— to “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”—embody the aspirations that We the People have for our Constitution, and that were expected to flow from the substantive provisions that follow. The stated goal is to create a government that will meet the needs of the people.

As noted, the Preamble’s statements of purpose do not themselves grant powers or confer rights; the substantive provisions in the main body of the Constitution do that. There is not, for example, a general government power to do whatever it judges will “promote the general Welfare.” The national government’s powers are specified in Article I and other provisions of the Constitution, not the Preamble. Congress has never relied on the Preamble alone as the basis for a claimed power to enact a law, and the Supreme Court has never relied on the Preamble as the sole basis for any constitutional decision. Still, the declared purposes for the Constitution can assist in understanding, interpreting, and applying the specific powers listed in the articles, for the simple reason that the Constitution should be interpreted in a manner that is faithful to its purposes.

Finally, the Preamble declares that what the people have ordained and established is “this Constitution”—referring, obviously enough, to the written document that the Preamble introduces. That language is repeated in the Supremacy Clause of Article VI, which declares that “this Constitution” shall be the supreme law for the entire nation. The written nature of the Constitution as a single binding text matters and was important to the framing generation. 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. The boundaries of what may be said and done in the name of the Constitution are marked by the words, phrases, and structure of the document itself. To be sure, there are disputes over what those words mean and how they are to be applied. But the enterprise of written constitutionalism is, at its core, the faithful interpretation and application of a written document adopted by the people as supreme law: “this Constitution for the United States of America.”

DMU Timestamp: February 08, 2018 18:47





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