I was creating a short post with the Preamble of the US Constitution for my ESL site. An essay came up in my search results: THE PREAMBLE’S SIGNIFICANCE FOR CONSTITUTIONAL INTERPRETATION, by Michael Stokes Paulsen. I found the piece both interesting and easy to understand. I copied it below for my files. The Preamble itself is critically important in interpreting the Constitution, I had not given this enough thought in context. Fuel for future weight in any constitutional debate. Here’s the Preamble for reference:
THE PREAMBLE’S SIGNIFICANCE FOR CONSTITUTIONAL INTERPRETATION
By Michael Stokes Paulsen
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.”
This essay is part of a discussion about the Preamble with Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law. Read the full discussion here.
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.
WE THE PEOPLE
Signed in convention September 17, 1787. Ratified June 21, 1788