RECONSIDERING THE CONSTITUTION'S PREAMBLE: THE WORDS THAT MADE US U.S.

• Author: Schwartz, David S.

INTRODUCTION

Akhil Amar's wonderful new book (2) conveys several important themes including a revisionist view of the nature of the Constitution itself. In a revealing phrase, Amar writes that John Marshall "'carried Washington's flag--the Constitution's flag" (p. 527). The Constitution, he suggests, was Washington's constitution, and it became Madison's constitution and Andrew Jackson's constitution, not through original meaning, but later, through constitutional politics. Especially in light of the book's largest theme, that "mere" words can be constitutive of a constitutional order, it is worth reflecting on the Constitution's Preamble, which conventional doctrine dismisses as mere words. But the Preamble conveys substance. It tells us at the outset that the Constitution can be read as Washington's Constitution--the Constitution of the Federalists. (3)

The Constitution begins:

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. (4) All the Constitution's other sentences or clauses are understood to authorize, create, empower, or limit: they all do something. Even the signature block at the end of the document attests to something "done"--the drafting of the Constitution--and does something: witnesses the act. (5) But the Preamble, it is said, does nothing. It is either a mere stylistic flourish, like the calligraphy of "We the People," or at most a purely symbolic package of vaporous, feel-good platitudes--a Fourth of July speech--rather than words that "make" or "do."

Jacobson v. Massachusetts (1905), (6) the supposed doctrinal source of the Preamble's nullity, dismissed it, on the authority of Story's Commentaries, declaring that the Preamble "has never been regarded as the source of any substantive power conferred on the government of the United States." (7) The statement has given rise to argumentative drift. Those who repeat it seem to go beyond disclaiming the Preamble as a "source of substantive power," and take Jacobson to mean that the Preamble is not a source of any interpretive consequences for the Constitution. (8)

The conventional view assumes that it must have no legal or interpretive effect, because the only alternative is the purportedly unacceptable one that the Preamble is an express grant of powers. But this is a tendentious, stipulative conclusion to a false dilemma. It excludes at least two other significant possibilities of what the Preamble might mean and arbitrarily chooses between the two remaining. This Essay elaborates on recent revisionist scholarship suggesting that, to the Framers, the Preamble contained a range of potential constitutional meaning. (9)

1. CONTEXTUAL CLUES: THE PREAMBLE'S DRAFTING HISTORY

   The Preamble was drafted by the Committee of Style, which had been appointed by the Convention on September 8,1787, "to revise the style of and arrange the articles agreed to" by the Convention." (10) A myth has emerged that the Committee of Style was forbidden to propose substantive changes or additions to "the articles agreed to," (11) and this myth has fed the belief that the Preamble is a mere stylistic adornment. In fact, as I have shown elsewhere, the Committee of Style was not restricted to stylistic editing. (12) Even if a substantive Preamble would have been ultra vires, the Convention ratified it, unanimously approving it along with most of the rest of the Committee of Style draft, making only one change to the Committee of Style's wording of the Preamble: deleting "to" before "establish justice." (13)

   One could argue that the Convention's ratification simply confirms its intention to have a merely stylistic preamble, but this assumes wrongly that the pre-Committee of Style preamble was itself purely stylistic. That version was written by the Committee of Detail, whose August 6 report--known to history as the first draft of the Constitution--began as follows:

   We the People of the States of New-Hampshire [etc.]... do ordain, declare, and establish the following Constitution for the Government of ourselves and our Posterity. Article I

   The stile of this Government shall be, "The United States of America." (14) The Committee of Detail preamble indicated that the people identified as "of" the respective states established a Constitution that in turn created a government whose name was the United States of America. This was probably intended to track the preamble of the Articles of Confederation, which began:

   ARTICLES OF CONFEDERATION AND PERPETUAL UNION BETWEEN THE STATES OF [names listed):

   ARTICLE I. The Stile of this confederacy shall be "The United States of America."

   Despite the similarities, the Committee of Detail preamble significantly changed the document description from an agreement "between the states" to an agreement between "the people of the states'" and. in Article I, changed "this confederacy" to "this government." This was undoubtedly a huge step, as the framers widely viewed the confederation as something less than a government. But in both Articles and the Committee of Detail draft, the United States was merely a name or "stile" given to the thing created by the document.

   The Committee of Style not only changed the Preamble, but it also deleted the Committee of Detail's Article I. In the Committee of Style version, the United States of America was not a creature of the document--neither an interstate compact nor a government--but a pre-existing people of the United States, who were creating a government. That government needed no name, any more than the government of Pennsylvania needed to be named or "stiled" in that state's constitution. (15)

   Further insight into the Preamble is gained by reference to the end of the Constitution's text--the signature block: "done in Convention by the Unanimous Consent of the States present." Proposed on September 17, that bit of text was, according to Madison, an "ambiguous form drafted by [Gouverneur Morris] in order to gain the dissenting members, and [proposed by] Docr. Franklin that it might have the better chance of success." (16) It allowed dissenting members the freedom to later claim that they had not personally approved the Constitution, but had merely sat as part of a state delegation whose majority approved the Constitution. But it did more. Read in conjunction with the Preamble--all the more appropriate, perhaps, since both were written by Morris--the signature block confirms that the Constitution was drafted and proposed by representatives of the state legislatures (17)--but if ratified, would be the act of the People of the United States.

2. THE PREAMBLE'S FOUR POSSIBILITIES

   Conventional doctrine misleadingly implies that there are only two possible ways to understand the Preamble: as a mere stylistic flourish or as a grant of powers. But there are at least four ways to understand the Preamble that have been asserted at one time or...