The Preamble to the United States Constitution is a brief introductory statement of the Constitution's
fundamental purposes and guiding principles.
It states in general terms, and courts have referred to it as reliable evidence of, the
Founding Fathers' intentions regarding the Constitution's meaning and what they hoped
the Constitution would achieve.
Text
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.
Drafting The Preamble was placed in the Constitution
during the last days of the Constitutional Convention by the Committee on Style, which
wrote its final draft.
It was not proposed or discussed on the floor of the convention beforehand.
The initial wording of the preamble did not refer to the people of the United States,
rather, it referred to people of the various states, which was the norm.
In earlier documents, including the 1778 Treaty of Alliance with France, the Articles of Confederation,
and the 1783 Treaty of Paris recognizing American independence, the word "people" was not used,
and the phrase the United States was followed immediately by a listing of the states, from
north to south.
The change was made out of necessity, as the Constitution provided that whenever the popularly
elected ratifying conventions of nine states gave their approval, it would go into effect
for those nine, irrespective of whether any of the remaining states ratified.
Meaning and application The Preamble serves solely as an introduction,
and does not assign powers to the federal government, nor does it provide specific limitations
on government action.
Due to the Preamble's limited nature, no court has ever used it as a decisive factor in case
adjudication, except as regards frivolous litigation.
Judicial relevance The courts have shown interest in any clues
they can find in the Preamble regarding the Constitution's meaning.
Courts have developed several techniques for interpreting the meaning of statutes and these
are also used to interpret the Constitution.
As a result, the courts have said that interpretive techniques that focus on the exact text of
a document should be used in interpreting the meaning of the Constitution.
Balanced against these techniques are those that focus more attention on broader efforts
to discern the meaning of the document from more than just the wording; the Preamble is
also useful for these efforts to identify the "spirit" of the Constitution.
Additionally, when interpreting a legal document, courts are usually interested in understanding
the document as its authors did and their motivations for creating it; as a result,
the courts have cited the Preamble for evidence of the history, intent and meaning of the
Constitution as it was understood by the Founders.
Although revolutionary in some ways, the Constitution maintained many common law concepts, and courts
deem that the Founders' perceptions of the legal system that the Constitution created
are uniquely important because of the authority "the People" invested them with to create
it.
Along with evidence of the understandings of the men who debated and drafted the Constitution
at the Constitutional Convention, the courts are also interested in the way that government
officials have put into practice the Constitution's provisions, particularly early government
officials, although the courts reserve to themselves the final authority to determine
the Constitution's meaning.
However, this focus on historical understandings of the Constitution is sometimes in tension
with the changed circumstances of modern society from the late 18th century society that drafted
the Constitution; courts have ruled that the Constitution must be interpreted in light
of these changed circumstances.
All of these considerations of the political theory behind the Constitution have prompted
the Supreme Court to articulate a variety of special rules of construction and principles
for interpreting it.
For example, the Court's rendering of the purposes behind the Constitution have led
it to express a preference for broad interpretations of individual freedoms.
Examples An example of the way courts utilize the Preamble
is Ellis v. City of Grand Rapids.
Substantively, the case was about eminent domain.
The City of Grand Rapids wanted to use eminent domain to force landowners to sell property
in the city identified as "blighted", and convey the property to owners that would develop
it in ostensibly beneficial ways: in this case, to St. Mary's Hospital, a Catholic organization.
This area of substantive constitutional law is governed by the Fifth Amendment, which
is understood to require that property acquired via eminent domain must be put to a "public
use".
In deciding whether the proposed project constituted a "public use", the court pointed to the Preamble's
reference to "promot[ing] the general Welfare" as evidence that "[t]he health of the people
was in the minds of our forefathers".
"[T]he concerted effort for renewal and expansion of hospital and medical care centers, as a
part of our nation's system of hospitals, is as a public service and use within the
highest meaning of such terms.
Surely this is in accord with an objective of the United States Constitution: '* * * promote
the general Welfare.'"
On the other hand, courts will not interpret the Preamble to give the government powers
that are not articulated elsewhere in the Constitution.
United States v. Kinnebrew Motor Co. is an example of this.
In that case, the defendants were a car manufacturer and dealership indicted for a criminal violation
of the National Industrial Recovery Act.
The Congress passed the statute in order to cope with the Great Depression, and one of
its provisions purported to give to the President authority to fix "the prices at which new
cars may be sold".
The dealership, located in Oklahoma City, had sold an automobile to a customer for less
than the price for new cars fixed pursuant to the Act.
Substantively, the case was about whether the transaction in question constituted "interstate
commerce" that Congress could regulate pursuant to the Commerce Clause.
Although the government argued that the scope of the Commerce Clause included this transaction,
it also argued that the Preamble's statement that the Constitution was created to "promote
the general Welfare" should be understood to permit Congress to regulate transactions
such as the one in this case, particularly in the face of an obvious national emergency
like the Great Depression.
The court, however, dismissed this argument as erroneous and insisted that the only relevant
issue was whether the transaction that prompted the indictment actually constituted "interstate
commerce" under the Supreme Court's precedents that interpreted the scope of the Commerce
Clause.
Interpretation Aspects of national sovereignty
The Preamble's reference to the "United States of America" has been interpreted over the
years to explain the nature of the governmental entity that the Constitution created.
In contemporary international law, the world consists of sovereign states.
A state is said to be "sovereign," if any of its ruling inhabitants are the supreme
authority over it; the concept is distinct from mere land-title or "ownership."
While each state was originally recognized as sovereign unto itself, the Supreme Court
held that the "United States of America" consists of only one sovereign nation with respect
to foreign affairs and international relations; the individual states may not conduct foreign
relations.
Although the Constitution expressly delegates to the federal government only some of the
usual powers of sovereign governments, all such powers inherently belong to the federal
government as the country's representative in the international community.
Domestically, the federal government's sovereignty means that it may perform acts such as entering
into contracts or accepting bonds, which are typical of governmental entities but not expressly
provided for in the Constitution or laws.
Similarly, the federal government, as an attribute of sovereignty, has the power to enforce those
powers that are granted to it.
The Court has recognized the federal government's supreme power over those limited matters entrusted
to it.
Thus, no state may interfere with the federal government's operations as though its sovereignty
is superior to the federal government's; for example, states may not interfere with the
federal government's near absolute discretion to sell its own real property, even when that
real property is located in one or another state.
The federal government exercises its supreme power not as a unitary entity, but instead
via the three coordinate branches of the government, each of which has its own prescribed powers
and limitations under the Constitution.
In addition, the doctrine of separation of powers functions as a limitation on each branch
of the federal government's exercise of sovereign power.
One aspect of the American system of government is that, while the rest of the world now views
the United States as one country, domestically American constitutional law recognizes a federation
of state governments separate from the federal government, each of which is sovereign over
its own affairs.
Sometimes, the Supreme Court has even analogized the States to being foreign countries to each
other to explain the American system of State sovereignty.
However, each state's sovereignty is limited by the U.S. Constitution, which is the supreme
law of both the United States as a nation and each state; in the event of a conflict,
a valid federal law controls.
As a result, although the federal government is recognized as sovereign and has supreme
power over those matters within its control, the American constitutional system also recognizes
the concept of "State sovereignty," where certain matters are susceptible to government
regulation, but only at the State and not the federal level.
For example, although the federal government prosecutes crimes against the United States,
the general administration of criminal justice is reserved to the States.
Notwithstanding sometimes broad statements by the Supreme Court regarding the "supreme"
and "exclusive" powers the State and Federal governments exercise, the Supreme Court and
State courts have also recognized that much of their power is held and exercised concurrently.
People of the United States The phrase "People of the United States" has
sometimes been understood to mean "citizens."
This approach reasons that, if the political community speaking for itself in the Preamble
includes only citizens, by negative implication it specifically excludes non-citizens in some
fashion.
It has also been construed to mean something like "all under the sovereign jurisdiction
and authority of the United States."
The phrase has been construed as affirming that the national government created by the
Constitution derives its sovereignty from the people, as well as confirming that the
government under the Constitution was intended to govern and protect "the people" directly,
as one society, instead of governing only the states as political units.
The Court has also understood this language to mean that the sovereignty of the government
under the U.S. Constitution is superior to that of the States.
Stated in negative terms, the Preamble has been interpreted as meaning that the Constitution
was not the act of sovereign and independent states.
The popular nature of the Constitution The Constitution claims to be an act of "We
the People."
However, because it represents a general social contract, there are limits on the ability
of individual citizens to pursue legal claims allegedly arising out of the Constitution.
For example, if a law was enacted which violated the Constitution, not just anybody could challenge
the statute's constitutionality in court; instead, only an individual who was negatively
affected by the unconstitutional statute could bring such a challenge.
For example, a person claiming certain benefits that are created by a statute cannot then
challenge, on constitutional grounds, the administrative mechanism that awards them.
These same principles apply to corporate entities, and can implicate the doctrine of exhaustion
of remedies.
In this same vein, courts will not answer hypothetical questions about the constitutionality
of a statute.
The judiciary does not have the authority to invalidate unconstitutional laws solely
because they are unconstitutional, but may declare a law unconstitutional if its operation
would injure a person's interests.
For example, creditors who lose some measure of what they are owed when a bankrupt’s
debts are discharged cannot claim injury, because Congress’ power to enact bankruptcy
laws is also in the Constitution and inherent in it is the ability to declare certain debts
valueless.
Similarly, while a person may not generally challenge as unconstitutional a law that they
are not accused of violating, once charged, a person may challenge the law's validity,
even if the challenge is unrelated to the circumstances of the crime.
Where the Constitution is legally effective The Preamble has been used to confirm that
the Constitution was made for, and is binding only in, the United States of America.
For example, in Casement v. Squier, a serviceman in China during World War II was convicted
of murder in the United States Court for China.
After being sent to prison in the State of Washington, he filed a writ of habeas corpus
with the local federal court, claiming he had been unconstitutionally put on trial without
a jury.
The court held that, since his trial was conducted by an American court and was, by American
standards, basically fair, he was not entitled to the specific constitutional right of trial
by jury while overseas.
Since the Preamble declares the Constitution to have been created by the "People of the
United States", "there may be places within the jurisdiction of the United States that
are no part of the Union."
The following examples help demonstrate the meaning of this distinction:
Geofroy v. Riggs, 133 U.S. 258: the Supreme Court held that a certain treaty between the
United States and France which was applicable in "the States of the Union" was also applicable
in Washington, D.C., even though it is not a state or a part of a state.
De Lima v. Bidwell, 182 U.S. 1: the Supreme Court ruled that a customs collector could
not, under a statute providing for taxes on imported goods, collect taxes on goods coming
from Puerto Rico after it had been ceded to the United States from Spain, reasoning that
although it was not a State, it was under the jurisdiction of U.S. sovereignty, and
thus the goods were not being imported from a foreign country.
However, in Downes v. Bidwell, 182 U.S. 244, the Court held that the Congress could constitutionally
enact a statute taxing goods sent from Puerto Rico to ports in the United States differently
from other commerce, in spite of the constitutional requirement that "all Duties, Imposts and
Excises shall be uniform throughout the United States," on the theory that although Puerto
Rico could not be treated as a foreign country, it did not count as part of the "United States"
and thus was not guaranteed "uniform" tax treatment by that clause of the Constitution.
This was not the only constitutional clause held not to apply in Puerto Rico: later, a
lower court went on to hold that goods brought from Puerto Rico into New York before the
enactment of the tax statute held constitutional in Downes, could retroactively have the taxes
applied to them notwithstanding the Constitution's ban on ex post facto laws, even if at the
time they were brought into the United States no tax could be applied to the goods because
Puerto Rico was not a foreign country.
Ochoa v. Hernandez y Morales, 230 U.S. 139: the Fifth Amendment's requirement that "no
person shall . . . be deprived of . . . property, without due process of law" was held, by the
Supreme Court, to apply in Puerto Rico, even though it was not a State and thus not "part"
of the United States.
To form a more perfect Union The phrase "to form a more perfect Union"
has been construed as referring to the shift to the Constitution from the Articles of Confederation.
In this transition, the "Union" was made "more perfect" by the creation of a federal government
with enough power to act directly upon citizens, rather than a government with narrowly limited
power that could act on citizens only indirectly through the states.
Although the Preamble speaks of perfecting the "Union," and the country is called the
"United States of America," the Supreme Court has interpreted the institution created as
a government over the people, not an agreement between the States.
The phrase has also been interpreted to confirm that state nullification of any federal law,
dissolution of the Union, or secession from it, are not contemplated by the Constitution.
See also List of songs from Schoolhouse Rock
Notes ^ In the hand-written engrossed copy of the
Constitution maintained in the National Archives, the British spelling "defence" is used in
the preamble References
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