The Preamble

“We the People” are the first three words of the Constitution, establishing “the people” as the sovereign in our constitutional republic. The Constitution functions through the people ceding authority or political power to the federal government in exchange for protection from outside threats and better security for their rights. Disagreements regarding how much power was ceded and how much power can be reclaimed when necessary or appropriate have been ongoing since the passage of the Constitution.

“The people” has two distinct meanings in the Constitution. The first meaning treats the people as a collective entity. When the Constitution’s Preamble states that this government is to be ordained and established by “We the People,” it refers to the collective judgment of the people in each state.

The second meaning treats people as individuals. When the 9th Amendment proclaims that an enumeration of rights is not meant “to deny or disparage others retained by the people,” it is primarily referring to individual rights. Deciding which meaning is to be given to any particular reference to “the people” can be tricky. For example, the 2nd Amendment’s reference to the people’s right to bear arms could designate the collective force of the state militias only, or it could refer to an individual right. Indeed, a recent Supreme Court decision ruled that the 2nd Amendment’s right to bear arms includes an individual right to self-defense.

The Preamble to the Constitution

The Preamble sets forth the reasons why the Constitution was established and asserts the sovereignty of the people. However, it is not clear if the Preamble should be viewed as a prefatory statement in flowery language, or if it lays down specific expectations for the civil authorities and citizens who would henceforth constitute the United States. The Constitution may well have not interpreted any differently if the Preamble did not exist, but our constitutional discourse would be poorer if the Preamble had not been written.

The Preamble also provides a justification for the document’s creation. Though the Preamble does not mention the Articles of Confederation, it clearly begins the process of supplanting the Articles as a form of government and introduces the document that would attempt to fix many of the problems associated with the Articles. Of course, the United States existed in some form under the Articles of Confederation. Though the Articles were supplanted, the United States was not.

How should we interpret the Preamble?

The Preamble notes that “We the People” created the Constitution. This suggests that the new Constitution would rest upon a different foundation than the Articles of Confederation, which had only established a “Union between the States.” However, the language of “We the People” was hotly contested in the founding era. Many discussions revolved around whether the Constitution created a federal government that is still based on states as the locus of power or a national government that is based on the people as the locus of power. Madison had argued that there was some truth in both these views.

An additional problem stemming from the Preamble is whether it should be used as a lens through which the remainder of the Constitution should be interpreted. The Preamble is a part of the Constitution that was ratified and provides the reason for the document. This means that when the Constitution needs to be interpreted, the Preamble could be considered as a linguistic tiebreaker.

For example, if more than one legitimate interpretation of a constitutional clause is possible, one could ask which interpretation is more consistent with the Preamble in deciding what that text means. The Preamble could be thought to be as persuasive in determining original intent or original meaning as the Federalist or the debates at the Constitutional Convention. Nonetheless, historically the Supreme Court has tended to avoid using the Preamble as anything other than an unenforceable preface to the remainder of the Constitution.

The Society Envisioned by the Preamble

It is not uncommon for important legislation to include a Preamble, or a sort of introduction, stating the reasons why the legislation is being enacted and the purposes it is meant to fulfill. The Articles of Confederation had a preamble of sorts, and the Constitution both adopted some of its purposes and added a few more. Both specified that the purpose of the union was the “common defence” and “general welfare” of its members. And whereas the Articles had promised “the security of their liberties,” the Constitution had promised to “secure the Blessings of Liberty to ourselves and our Posterity.” But the more noteworthy differences are even more illuminating than the similarities. Whereas the Articles had specified that the “States hereby severally enter into” the compact, the Constitution had opened with the words “We the People of the United States.” The Articles had called the union “a firm league of friendship with each other” (though elsewhere it called itself the “articles of Confederation and perpetual Union”). The Americans’ experience under the Articles had proven that it had failed to establish the Union it had promised. The Constitution was therefore framed “in Order to form a more perfect Union.”

Finally, the new Constitution added two more goals that the Articles had omitted; the Constitution was meant to “insure domestic Tranquility” and “establish Justice.” The first is a clear reference to the domestic insurrections, such as Shay’s Rebellion, that the old Congress had been utterly incapable of addressing. The new government would be given additional powers to suppress such uprisings. The promise to “establish justice” is less specific and more open-ended. It may refer to certain features in the new federal government, such as its new apportionment of representation. Many from the large states had thought that the equal representation that all states, no matter how small, had enjoyed under the Articles was “evidently unjust.” The new Constitution, they believed, went a long way toward correcting that injustice. It may also refer to certain prohibitions on state legislatures, such as issuing paper currency and impairing the obligation of contracts. The injustices of the state legislatures had rankled a number of the Framers, especially James Madison, and the new Constitution would now forbid the most egregious examples of these injustices.

The promise to establish justice is perhaps best read as an injunction to the citizens and civil authorities who would henceforth operate within this constitutional framework. A well-written preamble can serve the same educative function that James Madison ascribed to a properly constructed Bill of Rights: “the political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the National sentiment, counteract the impulses of interest and passion” (James Madison to Thomas Jefferson, Oct. 17, 1788). There were still injustices, such as slavery, that needed to be corrected. And the Constitution offered the means, but not the fulfillment, of that promise. The prospect of self-improvement within the constitutional framework should remind us that a constitution transcends an ordinary law, and therefore some interpretations of the Constitution should transcend the merely juridical. While no part of the Preamble is enforceable within the courts, that does not mean that its content is empty of meaning. The Framers were here indicating their hopes that Americans would continue to strive for a “more perfect Union.” George Washington once wrote, “perfection falls not to the share of mortals” (George Washington to John Jay, Aug. 15, 1786). But individuals, like nations, can be more or less near to perfection. The Framers generally considered it everyone’s civic duty to move closer toward the nation’s ideals, and the Preamble names some of those ideals for which we continue to aspire.