The Preamble

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.   

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).