The Preamble

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, 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.

—John W. Welch & James A. Heilpern

Introduction

The Preamble to the United States Constitution, though often considered merely ornamental, has long served as a vital interpretive tool in the hands of lawmakers, judges, and scholars. This essay first traces the Preamble’s origins and enduring resonance in the American consciousness from its succinct crafting in the Constitutional Convention to its roles in shaping the American identity and defining the nation’s core values. It will then consider the Preamble’s historical usage by all three branches of government, including the shifting jurisprudence surrounding it as exemplified by cases like Jacobson v. Massachusetts (1905), and the ongoing debates among scholars about the Preamble’s potential as a source of substantive law and its role in constitutional interpretation.

History Before 1787

The Constitution was not the first legal document to begin with a preamble. Many ancient laws began with a prologue or preamble, which Plato strongly recommended in his Laws. Edward Coke wrote that preambles provide a “good mean to find out the meaning of a statute” and the “key” to understanding the law.¹ Thomas Hobbes advised lawmakers to state concisely “why the Law was made,” for “a Declaration of the Causes, and Motives, for which it was made” shows “us the meaning of the Legislator.”² Blackstone stated that such purpose statements can be “called in to help in the construction” of a legal document and thus should be given legal effect at least in some circumstances.³ Courts on both sides of the Atlantic followed this interpretive practice.⁴

Preambles were common in early state constitutions as well. The constitutions of Massachusetts (1780), Vermont (1777), and Pennsylvania (1776) contained lengthy political discussions of the need to protect natural rights or justifications for breaking away from Great Britain. A majority of state constitutions contained statements about the legitimate purposes of government, many employing phrases that would be mirrored in the federal Preamble a decade later. The preambles of the constitutions of Pennsylvania (1777), Virginia (1776), and North Carolina (1776) mention the “blessings of liberty.” The Massachusetts constitution (1780) contains the phrase “for ourselves and posterity.”

The Constitutional Convention

The records of the Constitutional Convention contain almost no references to the Preamble. The Preamble was not debated on the Convention floor but instead was drafted as a final summation. Edmund Randolph of Virginia and John Rutledge of South Carolina stated that a preamble was not the place to opine on “the ends of government and human polities.”⁵ They acknowledged that such political statements might have been common in state constitutions but contended that the preamble to a federal charter should only emphasize the inadequacies of the Articles of Confederation, outline the historical circumstances leading to the Convention, and express confidence that the new Constitution solved its predecessor’s shortcomings.

The Committee of Detail—which included both Randolph and Rutledge—was then charged with the task of synthesizing “the proceedings of the Convention” and producing a draft.⁶ The committee’s first draft included a Preamble that was even more concise than Randolph and Rutledge had originally suggested: “We the people of the States . . . do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.”⁷

This version of the Preamble was read to the entire Convention and was approved unanimously.⁸ But the text was scrapped when it went to the Committee of Style. It is thought that Gouverneur Morris of Pennsylvania was tasked with revising the Preamble.⁹ The Committee of Style’s initial draft read as follows:

We the People of the United States, in order to form a more perfect union, to 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.⁰

This new version of the Preamble was included in the final text of the Constitution with only one change: the deletion of the word “to” from the string of clauses beginning with “to establish justice.” Otherwise, Morris’s version was adopted in the final document.

The Ratification Debates

The Preamble played a very influential role during the ratification process. In headlines, the Preamble captured the public’s attention and strongly influenced the perception of what the Constitution promised to deliver.¹⁰ However, the Preamble’s exact influence and legal weight remained subjects of debate among the Founders. On the one hand, Anti-Federalists raised concerns about the Preamble’s broad and sweeping language. Writers like Brutus and Luther Martin feared that the Preamble’s expansive language could be used to grant unlimited power to the federal government and possibly lead to the absorption of the states.¹¹ On the other hand, James Madison and Alexander Hamilton assumed that the Preamble’s broad phrases should be understood naturally in conjunction with the specific enumerated powers and limitations outlined in the body of the Constitution.¹²

The Preamble was discussed during eight of the thirteen state ratification conventions, although never at the center of debate. Its opening phrase, “We the People,” was accepted or passed over by most debaters, and the details of its language were not extensively contested. Instead, discussions focused on principles of federalism and the need for a bill of rights. Some delegates expressed concerns that the Preamble’s language undermined the independence of the states; others believed it served as a restraint on federal power.¹³

During the Virginia ratification convention, James Monroe straddled between the Federalist and Anti-Federalist camps. In 1788, he published two extensive explanations of the proposed Constitution in which he justified the absence of a written bill of rights. He stated that, in 1776, the American people did not require a bill of rights to choose the form of government they deemed suitable. According to Monroe, such a declaration of rights could be used to curtail liberties rather than preserve them. He argued that the Constitution itself should be the arbiter in disputes concerning any exercise of power. If a particular power or prerogative was granted by the Constitution, the federal government could exercise it; otherwise, the people and the states retained that right.¹⁴

Within this context, Monroe highlighted the significance of the Preamble, referring to it as the “key of the Constitution.” He considered the Preamble to be the most foundational and indispensable element of the Constitution, giving insights into its intended public purposes. Monroe believed that any exercise of federal power contrary to the spirit expressed in the Preamble would be unconstitutional and should be resisted by the people.¹⁵

Early Practice

Throughout the eighteenth century, the Preamble was treated as an authoritative source of law by influential political actors in all three branches of government. As a rule, these figures accepted Monroe’s view that the preamble was the “key to the Constitution.” Joseph Story, for example, used the Preamble as an interpretive lens to focus and explain the rest of the document.¹⁶

This view of the Preamble became most notable in 1830. During the nullification crisis, South Carolina attempted to declare that federal tariffs were null and void. Senators on all sides of the issue—especially Daniel Webster from Massachusetts and Robert Hayne from South Carolina—turned to the Preamble to support their preferred constitutional interpretations. Hayne selectively employed the Preamble’s language to argue against national debt and foreign interference. In his view, the Preamble emphasized the importance of individual liberties and state sovereignty. Webster used the Preamble to support his view of a consolidated government and the Union’s role in promoting a more perfect unity among the states. Though the two sides did not agree on much, they did agree that the Preamble was a rich, essential source of insights for settling constitutional questions that gripped the nation.¹⁷

Judicial Precedent

The Preamble was cited in a number of early Supreme Court decisions, primarily to help define and balance the limits of federalism and federal powers. Chisolm v. Georgia (1793), which rejected principles of state sovereignty, sparked a constitutional debate that culminated in the passage of the Eleventh Amendment. Chief Justice John Jay’s seriatim opinion relied on two parts of the Preamble (“We the People” and “establish justice”) to support his conclusion that federal courts have jurisdiction to hear cases between a state and a citizen of another state.¹⁸ In Martin v. Hunter’s Lessee (1816), Justice Joseph Story’s majority opinion referenced the Preamble in holding that the Constitution vested the U.S. Supreme Court with the authority to review decisions of state appellate courts.¹⁹ Story emphasized that the Constitution had been written by “the people of the United States” rather than by the states.

But the Court did not always use the Preamble as the federal imprimatur that some Anti-Federalists feared it would become. In Barron v. Baltimore (1833), Chief Justice John Marshall invoked the Preamble to limit the reach of the Constitution and show that the Bill of Rights applied only to the federal government, not the states.²⁰

The Preamble’s influence in Supreme Court opinions waned sharply after the Court decided Jacobson v. Massachusetts,²¹ which upheld states’ authority to impose a nominal fine on unvaccinated people. Henning Jacobson refused to receive the smallpox vaccination, asserting, among other claims, a Fourteenth Amendment right to liberty. On appeal to the Supreme Court, Jacobson asserted that the law was “contrary to the preamble of the Constitution.”²² Jacobson’s argument was not well-developed. He simply concluded without any support that the “blessings of liberty” in the Preamble were secured through the Fourteenth Amendment.²³

The Court ruled in favor of Massachusetts. Justice John Marshall Harlan’s majority opinion rejected Jacobson’s brief invocation of the Preamble. The Court “pass[ed] without extended discussion the suggestion that the . . . statute . . . is in derogation of rights secured by the Preamble.” Harlan acknowledged that the “Preamble indicates the general purposes for which the people ordained and established the Constitution,” but countered that the Preamble “has never been regarded as the source of any substantive power conferred on the government of the United States.” Rather, “[s]uch powers embrace only those expressly granted in the body of the Constitution.”²⁴

In the century after Jacobson, members of the Court have continued to invoke the Preamble, primarily in concurrences and dissents.²⁵ Although the Court has never explicitly reaffirmed Jacobson’s treatment of the Preamble, lower courts have cited Jacobson as support for the proposition that the Preamble does not guarantee any substantive rights.²⁶

Open Questions

Scholars continue to debate what (if any) substantive role the Preamble should play in constitutional interpretation. Most scholars continue to agree with Justice Harlan’s dictum that the Preamble does not and cannot confer substantive rights.²⁷ Others, however, have identified several potential functions of the Preamble: (1) that it can and should be used to clarify otherwise ambiguous terms or purposes found in the body of the Constitution; (2) that the exercises of federal power must conform to at least one of the purposes undertaken in the Preamble; and (3) that the Preamble imposes duties on all people, states, and federal officers to work for the good of the country as a whole.²⁸ Some scholars across a broad political spectrum have argued for more muscular interpretations of the Preamble to justify various policy preferences, such as mobilizing the war on terrorism, protecting the unborn, or providing universal health care.²⁹ Still others have used the Preamble to argue either for natural law–based or progressive jurisprudence writ large.³⁰

1. Edward Coke, Institutes of the Lawes of England 79 (1628). ↩︎
2. Thomas Hobbes, Leviathan 388–89 (C.B. MacPherson ed., 1968) (1651). ↩︎
3. 1 Blackstone 59–60. ↩︎
4. Brett v. Brett, 162 Eng. Rep. 456, 458–59 (1716); Cox v. Edwards, 14 Mass. 491, 493 (1782). ↩︎
5. 2 Farrand’s 137–38. ↩︎
6. Id. at 95, 97. ↩︎
7. Id. at 177. ↩︎
8. Id. at 193, 196; John Welch & James Heilpern, Recovering Our Forgotten Preamble, 91 S. Cal. L. Rev. 1021, 1033, n.44 (2018). ↩︎
9. 3 Farrand’s 499. ↩︎
10. Welch & Heilpern, supra at 1050–51. ↩︎
11. 2 Storing 2.9.141; Supplement, Farrand’s 291–92. ↩︎
12. Welch & Heilpern, supra at 1053 & n.149 (quoting Federalist No. 41 (Madison) and Federalist No. 84 (Hamilton)). ↩︎
13. Id. at 1054–61. ↩︎
14. James Monroe, Observations on the Federal Government, in 1 The Writings of James Monroe 349, 356 (Stanislaus Murray Hamilton ed., 1898). ↩︎
15. Welch & Heilpern, supra at 1057. ↩︎
16. 1 Story’s Commentaries § 459. ↩︎
17. Welch & Heilpern, supra at 1084–90. ↩︎
18. 2 U.S. 419, 470–79 (1793) (Jay, C.J.). ↩︎
19. 14 U.S. 304, 324–25 (1816). ↩︎
20. 32 U.S. 243, 247 (1833). ↩︎
21. 197 U.S. 11 (1905). ↩︎
22. Josh Blackman, The Irrepressible Myth of Jacobson v. Massachusetts, 70 Buff. L. Rev. 131, 162, 170 (2022); Brief for Plaintiff in Error at 5, Jacobson v. Mass., 197 U.S. 11 (1905) (No. 70-175), https://perma.cc/EUK9-TX4V. ↩︎
23. Brief for Plaintiff in Error at 20. ↩︎
24. Jacobson, 197 U.S. at 22. ↩︎
25. Welch & Heilpern, supra at 1116. ↩︎
26. Tinsley v. Methodist Hosp. of Ind., Inc., 70 F.3d 1275 (7th Cir. 1995); Virginia v. Ferriero, 525 F. Supp. 3d 36, 60 (D.D.C. 2021); Hart Coal Corp. v. Sparks, 7 F. Supp. 16, 27 (W.D. Ky. 1934); Gallogly v. Att’y Gen. of U.S., No. 1:18-cv-571, 2018 WL 11452319, at *5 (W.D. Tex. Nov. 19, 2018). ↩︎
27. Peter Beck, The Parts We Skip: A Taxonomy of Constitutional Irrelevancy, 34 Const. Comm. 223 n.118 (2019); Welch & Heilpern, supra at 1123–26. ↩︎
28. Welch & Heilpern, supra at 1132–35. ↩︎
29. C. Dean McGrath Jr., The Genius of the Constitution: The Preamble and the War on Terror, 3 Geo. J.L. & Pub. Pol’y (2005); Raymond Marcin, “Posterity” in the Preamble and a Positivist Pro-Life Position, 38 Am. J. Juris 273, 281, 283 (1993); Kenneth Shuster, Because of History, Philosophy, the Constitution, Fairness & Need: Why Americans Have a Right to National Health Care, 10 Ind. Health L. Rev. 75, 89–91 (2013). ↩︎
30. Josh Hammer, Common Good Originalism, 44 Harv. J.L. & Pub. Pol’y 917 (2021); Eliot Tracz, Towards a Preamble Based Theory of Constitutional Interpretation, 56 Gonz. L. Rev. 95 (2021). ↩︎