Preamble: Doctrine and Practice

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Pre.1.3 Preamble: Doctrine and Practice


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 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.1 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.” 2 And in M'Culloch v. Maryland , Chief Justice 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.3

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.4 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.” 5

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.6 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.” 7 In this vein, the Court has rarely cited the Preamble in its decisions interpreting the Constitution,8 and the Court continues to interpret prefatory text in the Constitution as announcing general purposes of the text that follows.9 ( “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)).

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.10 In doing so, the Court declared that the “fundamental instrument of government derives its authority from 'We the People.'” 11 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.12 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.'” 13

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.” 14 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.” 15 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.” 16

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 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,” 17 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.” 18 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.19 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.” 20 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.21 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.22

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.23 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.” 24 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.” 25 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 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). back
14 U.S. (1 Wheat.) 304, 324–25 (1816). back
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.” ). back
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.” ). back
See I Joseph Story, Commentaries on the Constitution of the United States § 462 (1833). back
197 U.S. 11, 22 (1905). back
Id. back
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, 12 Cardozo L. Rev. 117, 120–21 n.14 (1991). For an extensive discussion of the Court's citations to the Preamble, see Dan Himmelfarb, The Preamble in Constitutional Interpretation, 2 Seton Hall Const. L.J. 127 (1992). back
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)). back
135 S. Ct. 2652, 2659 (2015). back
Id. at 2675. back
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). back
514 U.S. 779, 838 (1995) . back
See 2 Annals of Cong. 1947–48 (1791). back
See 17 Annals of Cong. 1047 (1807). back
Daniel Webster, The Constitution Not a Compact Between Sovereign States (Feb. 16, 1833), reprinted in 3 The Works of Daniel Webster 452, 471 (9th ed. 1856). back
See James Monroe, The Writings of James Monroe: 1778–1794, at 356 (Stanislaus Murray Hamilton ed., 1898). back
John Quincy Adams, Inaugural Address (Mar. 4, 1825), reprinted in The Annals of America 509 (Abiel Holmes ed., 2d ed. 1829). back
Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in 4 The 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.'” ). back
See 81 Cong. Rec. 84 (1937). back
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). back
Id. back
153 Cong. Rec. H2722 (daily ed. Mar. 20, 2007) (statement of Rep. Garrett). back
Proclamation No. 5634, 50 Fed. Reg. 13,622 (Apr. 21, 1987). back
Proclamation No. 8367, 74 Fed. Reg. 20,861 (May 5, 2009). back

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