![Preamble detail from Library of Congress Dunlap & Claypoole original printing of the United States Constitution, 1787](https://upload.wikimedia.org/wikipedia/commons/7/70/Preamble_detail_from_Library_of_Congress_Dunlap_%26_Claypoole_original_printing_of_the_United_States_Constitution%2C_1787.jpg)
The Preamble to the United States Constitution, beginning with the words We the People, is a brief
introductory statement of the
Constitution's fundamental purposes and guiding principles. 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.
The preamble was mainly written by Founding Father
Gouverneur Morris
Gouverneur Morris ( ; January 31, 1752 – November 6, 1816) was an American statesman, a Founding Father of the United States, and a signatory to the Articles of Confederation and the United States Constitution. He wrote the Preamble to the U ...
, a Pennsylvania delegate to the 1787
Constitutional Convention held at
Independence Hall
Independence Hall is a historic civic building in Philadelphia, where both the United States Declaration of Independence and the United States Constitution were debated and adopted by America's Founding Fathers of the United States, Founding Fa ...
in Philadelphia.
Text
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, with
Gouverneur Morris
Gouverneur Morris ( ; January 31, 1752 – November 6, 1816) was an American statesman, a Founding Father of the United States, and a signatory to the Articles of Confederation and the United States Constitution. He wrote the Preamble to the U ...
leading the effort. 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
The Articles of Confederation and Perpetual Union was an agreement among the 13 Colonies of the United States of America that served as its first frame of government. It was approved after much debate (between July 1776 and November 1777) by ...
, and the 1783
Treaty of Paris Treaty of Paris may refer to one of many treaties signed in Paris, France:
Treaties
1200s and 1300s
* Treaty of Paris (1229), which ended the Albigensian Crusade
* Treaty of Paris (1259), between Henry III of England and Louis IX of France
* Trea ...
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
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
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
A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government (federalism). In a federation, the self-governin ...
, 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
Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties or litigants, to come to a decision which determines rights and obligations between the ...
, except as regards
frivolous litigation
Frivolous litigation is the use of legal processes with apparent disregard for the merit of one's own arguments. It includes presenting an argument with reason to know that it would certainly fail, or acting without a basic level of diligence i ...
.
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
Interpreting is a translational activity in which one produces a first and final target-language output on the basis of a one-time exposure to an expression in a source language.
The most common two modes of interpreting are simultaneous inter ...
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
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
concepts (such as ''
habeas corpus
''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
'',
trial by jury
A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions.
Jury trials are used in a significant ...
, and
sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger ...
), and courts deem that the Founders' perceptions of the legal system that the Constitution created (i.e., the interaction between what it changed and what it kept from the British legal system) 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
Eminent domain (United States, Philippines), land acquisition (India, Malaysia, Singapore), compulsory purchase/acquisition (Australia, New Zealand, Ireland, United Kingdom), resumption (Hong Kong, Uganda), resumption/compulsory acquisition (Austr ...
. 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
The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
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
ngthe general Welfare" as evidence that "
e health of the people was in the minds of our forefathers". "
e 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 National Industrial Recovery Act of 1933 (NIRA) was a US labor law and consumer law passed by the 73rd US Congress to authorize the president to regulate industry for fair wages and prices that would stimulate economic recovery. It also e ...
. The Congress passed the statute in order to cope with the
Great Depression
The Great Depression (19291939) was an economic shock that impacted most countries across the world. It was a period of economic depression that became evident after a major fall in stock prices in the United States. The economic contagio ...
, 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 (also from Oklahoma City) 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
The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and amon ...
. 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 (i.e., the federal government). In contemporary
international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
, the world consists of
sovereign state
A sovereign state or sovereign country, is a polity, political entity represented by one central government that has supreme legitimate authority over territory. International law defines sovereign states as having a permanent population, defin ...
s (or "sovereign nations" in modern equivalent). 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 (such as the powers to declare war and make treaties), 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 (e.g., the power to "establish Post Offices and Post Roads" includes the power to punish those who interfere with the postal system so established). 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 (discussed more
below
Below may refer to:
*Earth
*Ground (disambiguation)
*Soil
*Floor
*Bottom (disambiguation)
Bottom may refer to:
Anatomy and sex
* Bottom (BDSM), the partner in a BDSM who takes the passive, receiving, or obedient role, to that of the top or ...
); for example, states may not interfere with the federal government's near absolute discretion to sell its own
real property
In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or affixe ...
, 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 (legislative, executive, and judicial), each of which has its own prescribed powers and limitations under the Constitution. In addition, the doctrine of
separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
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 (and not subdivisions of) 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 (as discussed above) 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 (such as treason, or interference with the postal system), 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 been understood to mean "
nationals and citizens." This approach reasons that, if the political community speaking for itself in the Preamble ("''We'' the People") includes only U.S. nationals and citizens, by negative implication it specifically excludes non-citizens in some way. 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
Sovereignty is the defining authority within individual consciousness, social construct, or territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the perso ...
from the people, (whereas "United Colonies" had identified external monarchical sovereignty) 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
In moral and political philosophy
Political philosophy or political theory is the philosophical study of government, addressing questions about the nature, scope, and legitimacy of public agents and institutions and the relationships betw ...
, there are limits on the ability of individual citizens to pursue legal claims allegedly arising out of the Constitution. For example, if a law were enacted which violated the Constitution, not just anybody could challenge the statute's
constitutionality
Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
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
The doctrine of exhaustion of remedies prevents a litigant from seeking a remedy in a new court or jurisdiction until all claims or remedies have been exhausted (pursued as fully as possible) in the original one. The doctrine was originally cre ...
.
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
The United States Court for China was a United States district court that had extraterritorial jurisdiction over U.S. citizens in China. It existed from 1906 to 1943 and had jurisdiction in civil and criminal matters, with appeals taken to the U ...
. 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.
The Supreme Court held in 1901 that 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'', : 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.
)
, image_skyline =
, image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle, Jefferson Memorial, White House, Adams Morgan, ...
, even though it is not a state or a part of a state.
* ''
De Lima v. Bidwell
''DeLima v. Bidwell'', 182 U.S. 1 (1901), was one of a group of the first Insular Cases decided by the US Supreme Court.
The case was argued on January 8–11, 1901 and was decided on May 27, 1901.
The case is widely considered racist.
Backgroun ...
'', : 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
Puerto Rico (; abbreviated PR; tnq, Boriken, ''Borinquen''), officially the Commonwealth of Puerto Rico ( es, link=yes, Estado Libre Asociado de Puerto Rico, lit=Free Associated State of Puerto Rico), is a Caribbean island and Unincorporated ...
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
''Downes v. Bidwell'', 182 U.S. 244 (1901), was a case in which the US Supreme Court decided whether US territories were subject to the provisions and protections of the US Constitution. The issue is sometimes stated as whether the Constitution fo ...
'', , the Court held that the Congress could constitutionally enact a statute taxing goods sent from
Puerto Rico
Puerto Rico (; abbreviated PR; tnq, Boriken, ''Borinquen''), officially the Commonwealth of Puerto Rico ( es, link=yes, Estado Libre Asociado de Puerto Rico, lit=Free Associated State of Puerto Rico), is a Caribbean island and Unincorporated ...
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'', : 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. The contemporaneous meaning of the word "perfect" was complete, finished, fully informed, confident, or certain. The phrase has been interpreted in various ways throughout history based on the context of the times. For example, shortly after the Civil War and the ratification of the Fourteenth Amendment, the Supreme Court said that 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, e.g., by imposing taxes. Also, the institution was created as a government over the States and people, not an agreement (union) between the States.
In the 21st century, following a pivotal, widely reported speech entitled "
A More Perfect Union" by then-candidate
Barack Obama
Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, Obama was the first African-American president of the U ...
in 2008, the phrase has also come to mean the continual process of improvement of the country.
The phrase has also been interpreted to support the federal
supremacy clause
The Supremacy Clause of the Constitution of the United States ( Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the "supreme Law of the Land", and thu ...
as well as to demonstrate that
state nullification of any federal law, dissolution of the Union, or
secession
Secession is the withdrawal of a group from a larger entity, especially a political entity, but also from any organization, union or military alliance. Some of the most famous and significant secessions have been: the former Soviet republics le ...
from it,
[''Texas'', 74 U.S. (7 Wall.) at 725–26 (" en the[] Articles [of Confederation] were found to be inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not? ... The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States."); ''United States v. Cathcart'', 25 F. Cas. 344, 348 (C.C.S.D. Ohio 1864) (No. 14,756) ("The Supreme Court hasrepudiate emphatically the mischievous heresy that the union of the states under the constitution is a mere league or compact, from which a state, or any number of states, may withdraw at pleasure, not only without the consent of the other states, but against their will.").] are not contemplated by the Constitution.
See also
*
Liberty
Liberty is the ability to do as one pleases, or a right or immunity enjoyed by prescription or by grant (i.e. privilege). It is a synonym for the word freedom.
In modern politics, liberty is understood as the state of being free within society fr ...
*
Preamble
A preamble is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subj ...
Explanatory notes
References
External links
Findlaw—Preamble to the Constitution
{{DEFAULTSORT:Preamble To The United States Constitution
Constitution of the United States
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...