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.”

Erwin Chemerinsky Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law Michael Stokes Paulsen Distinguished University Chair and Professor, University of St. Thomas School of Law

The Preamble to the Constitution has been largely ignored by lawyers and courts through American history. Rarely has a Supreme Court decision relied on it, even as a guide in interpreting the Constitution. But long ago, in Marbury v. Madison (1803), the Court declared “it cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.” If the Preamble is read carefully and taken seriously, basic constitutional values can be found within it that should guide the interpretation of the Constitution.

The Court has rejected the relevance of the Preamble in constitutional decisions. In 1905, in Jacobson v. Massachusetts, the Supreme Court ruled that laws cannot be challenged or declared unconstitutional based on the Preamble. The Court declared: “Although that Preamble 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 Government of the United States or on any of its Departments.” In the few occasions over the last century in which the Preamble has been mentioned, the Court has summarily denied its relevance to constitutional law.

But the Preamble states basic values that should guide the understanding of the Constitution.  First, it is created by “We the People.” It is the people who are sovereign. This makes clear that the United States is to be a democracy, not a monarchy or a theocracy or a totalitarian government that were the dominant forms of government throughout world history. Early in American history, in McCulloch v. Maryland (1819), Chief Justice John Marshall stressed the importance of the government being created by the people. The State of Maryland claimed that it was the state governments who formed the United States and that therefore it is the states who are sovereign. The Court rejected this, quoting the Preamble and declaring: “The government proceeds directly from the people; is ‘ordained and established,’ in the name of the people.”

Second, the Constitution exists to create effective governance for the nation. The Preamble states that the Constitution exists “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, [and] promote the general Welfare.” The emphasis on establishing a “Union” and a successful government for it is not surprising because the Constitution was created in response to the failures of the Articles of Confederation which was a compact among the states where there was a weak national government with little power.  Throughout American history there have been battles over federalism and the authority of the federal government to take actions of unquestionable desirability: limiting slavery, banning child labor, prohibiting race discrimination, protecting the environment. The guidance of the Preamble has been overlooked: the Constitution exists to ensure that the national government has the authority to do all of these things which are part of a “more perfect Union” and “the general Welfare.”

Third, the Constitution exists to provide “Justice.” Long ago, the Magna Carta declared that justice requires both a fair process and fair results. In fact, even before that the Bible, in Deuteronomy 16:20, says, “Justice, justice shalt thou pursue.” Commentators have suggested that the word “justice” is repeated twice to convey the importance of both procedural and substantive fairness. In American constitutional law, this means a requirement for both procedural due process (the government must follow adequate procedures when depriving a person of life, liberty, or property) and substantive due process (the government must have adequate reasons when taking away a person’s life, liberty, or property).

Fourth, the Preamble states that the Constitution exists to “secure the Blessings of Liberty to ourselves and our Posterity.” The Constitution is founded to protect individual freedom. It is a society where personal liberty, not a duty to the state, is central. Interestingly, despite this commitment, the Framers of the Constitution saw no need to provide a detailed statement of rights in the Constitution they drafted. In part, this is because they thought the structure of government they were creating would ensure liberty. Also, they were afraid that enumerating some rights inherently would be taken to deny the existence of other rights that were not mentioned. They wanted liberty to be broadly protected and not confined to specific aspects of freedom mentioned in the text of the Constitution.

Equality is not mentioned in the Preamble. This is not surprising for a Constitution that explicitly protected the institution of slavery and gave women no rights. But as the Supreme Court has explained for over a half century, equality is an implicit and inherent part of liberty.

The Preamble thus does much more than tell us that the document is to be called the “Constitution” and establish a government. The Preamble describes the core values that the Constitution exists to achieve: democratic government, effective governance, justice, freedom, and equality.   

Erwin Chemerinsky Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

The Preamble—or “Enacting Clause”—of the Constitution is more than just a pitcher’s long wind-up before delivering the pitch to home plate. It is the provision that declares the enactment of “this Constitution” by “We the People of the United States.”  That declaration has important consequences for constitutional interpretation. While the Preamble does not itself confer powers and rights, it has significant implications both for how the Constitution is to be interpreted and applied and who has the power of constitutional interpretation—the two biggest overall questions of Constitutional Law. 

Consider two big-picture ways that the Preamble affects how the Constitution is to be interpreted. First, the Preamble specifies that what is being enacted is “this Constitution”—a term that unmistakably refers to the written document itself. This is at once both obvious and hugely important. America has no “unwritten constitution.” Ours is a system of written constitutionalism—of adherence to a single, binding, authoritative, written legal text as supreme law.

This defines the territory and boundaries of legitimate constitutional argument: the enterprise of constitutional interpretation is to seek to faithfully understand, within the context of the document (including the times and places in which it was written and adopted), the words, phrases, and structural implications of the written text. 

The words of the Constitution are not optional. Nor are they mere springboards or points of departure for individual (or judicial) speculation or one’s subjective preferences: where the provisions of the Constitution set forth a sufficiently clear rule for government, that rule constitutes the supreme law of the land and must be followed. By the same token, where the provisions of the Constitution do not set forth a rule—where they leave matters open—decision in such matters must remain open to the people, acting through the institutions of representative democracy. And finally, where the Constitution says nothing on a topic, it simply says nothing on the topic and cannot be used to strike down the decisions of representative government. It is not open for courts, legislatures, or any other government officials to “make up” new constitutional meanings that are not supported by the document itself. 

Second, the Preamble, by stating the purposes for which the Constitution has been enacted, might well be thought to exert a very gentle interpretive “push” as to the direction in which a specific provision of the Constitution should be interpreted in a close case. The Preamble does not confer powers or rights, but the provisions that follow should be interpreted in a fashion consistent with the purposes for which they were enacted. As Justice Joseph Story put it in his treatise on the Constitution, published in 1833, using the example of the Preamble’s phrase to “provide for the common defence”: 

No one can doubt, that this does not enlarge the powers of congress to pass any measures, which they may deem useful for the common defence.  But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words . . . ; if one would promote, and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation to be adopted?  Are we at liberty, upon any principles of reason, or common sense, to adopt a restrictive meaning, which will defeat an avowed object of the constitution, when another equally natural and more appropriate to the object is before us?  2 Joseph Story, Commentaries on the Constitution of the United States §462 at 445 (1833).

Finally, the Preamble has important implications for who has the ultimate power of constitutional interpretation. In modern times, it has become fashionable to identify the power of constitutional interpretation almost exclusively with the decisions of courts, and particularly the U.S. Supreme Court. And yet, while it is true that the courts legitimately possess the province of constitutional interpretation in cases that come before them, it is equally true that the other branches of the national government—and of state government, too—possess a like responsibility of faithful constitutional interpretation. None of these institutions of government, created or recognized by the Constitution, is superior to the Constitution itself. None is superior to the ultimate power of the people to adopt, amend, and interpret what is, after all, the Constitution ordained and established by “We the People of the United States.” 

James Madison, one of the leading architects of the Constitution, put it best in The Federalist No. 49: 

[T]he people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived . . . . The several departments being perfectly coordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commission, can alone declare its true meaning, and enforce its observance?

The Preamble thus may have much to say—quietly—about how the Constitution is to be interpreted and who possesses the ultimate power of constitutional interpretation. It enacts a written constitution, with all that that implies. It describes the purposes for which that document was adopted, which has implications for interpreting specific provisions.  And it boldly declares that the document is the enactment of, and remains the property of, the people—not the government and not any branch thereof— with the clear implication that We the People remain ultimately responsible for the proper interpretation and application of what is, in the end, our Constitution.

Further Reading:

Michael Stokes Paulsen & Luke Paulsen, The Constitution: An Introduction (2015) (Chapters 1 and 2).

Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, 103 Nw. U. L. Rev. 857 (2009).

Michael Stokes Paulsen, The Irrepressible Myth of Marbury, 101 Mich. L. Rev. 2706 (2003).

Michael Stokes Paulsen, Captain James T. Kirk and the Enterprise of Constitutional Interpretation: Some Modest Proposals from the Twenty-Third Century, 59 Albany L. Rev. 671 (1995).

Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994). 

Michael Stokes Paulsen Distinguished University Chair and Professor, University of St. Thomas School of Law