Understanding the Constitution #18: The Preamble is Not Just Rhetorical Flourish

“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.”

Massachusetts resident Henning Jacobson refused mandatory vaccination, saying previous vaccines gave him a “lifelong horror of the practice.”  He was fined and took his case to court. He argued that the Preamble to the Constitution allowed him to invoke the Fourteenth Amendment to protect his liberty.  His case made it to the Supreme Court. He lost – in 1905.  No one invokes the Preamble in court today. We may recall its beginning - “We, the People” - but not its history or value. 

Perhaps that’s understandable.  The Constitution’s framers didn’t spend much time on it. On August 6, 1787, the Federal Convention’s Committee of Detail first proposed a preamble.  It began “We, the people of the States of New Hampshire…” proceeding to list all thirteen states.  It was accepted without debate but replaced when the Committee of Style, whose task was to finalize the Constitution’s language, reported out the current version on September 12th, five days before the convention ended.  Gouverneur Morris, the committee member believed responsible for writing it, likely realized there was no guarantee all the states would ratify the Constitution so didn’t name them.  Another likely reason is that “We, the People” signifies that the whole people formed the nation, not the states.  That would take on great meaning in 1861.

The Preamble was easy for the framers to accept because much of it was familiar.  The Articles of Confederation provided for the “common defense, security of liberty and general welfare.”  “[T]to form a more perfect Union” was, of course, the Convention’s raison d’être since the government under the Articles was so imperfect.  The phrase “insure domestic Tranquility” reflected the fear of violence that reared its head in 1786’s Shays Rebellion. Some of the Preamble’s words had also appeared in State constitutions.  

Despite little attention at the convention, the Preamble played an important role in decades to follow.  Indeed, when first shared in Philadelphia’s Pennsylvania Packet, and Daily Advertiser, on September 19, 1787, the Preamble was in very large font, while the rest of the Constitution was in fine print.  During ratification debates some Anti-Federalist opponents charged that it weakened the states and granted unlimited power to the national government.

Before the Civil War, it was invoked in select Supreme Court decisions that did help solidify the supremacy of the national government.  This generated anger among Southerners who argued the Constitution was a compact of sovereign states not a consolidated government.  With war imminent, Lincoln recalled the Preamble in his First Inaugural on March 4, 1861:

“And finally, in 1787 one of the declared objects for ordaining and establishing by the Constitution was “to form a more perfect Union.” But if the destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity. It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void …”

After the war settled that we are the United States not the united States, attention to the Preamble diminished.  A decisive blow to its practical relevance came in the Court’s decision on the Jacobson when the 7-2 majority said:

“Although the Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.”

Not everyone agrees about its practical impotence.  Law professors John Welch and James Heilpern argue it should be seen as conveying not only the core purposes of government but the limits on what can be done in the Constitution’s name.  Indeed, James Monroe called it “the key of the Constitution,” declaring “[w]henever federal power is exercised, contrary to the spirit breathed by this introduction, it will be unconstitutionally exercised, and ought to be resisted by the people.”  Welch and Heilpern also argue that a careful reading of Jacobson allows for a more active role for the Preamble.

For us, the Preamble offers three key insights.  First, as Lincoln said, it signals a perpetual union.  Those at the barricades of today’s blue-red partisan fighting should remember that dividing Americans endangers that union.   

Second, “We, the People” means we are a union of citizens not states. When we read “We,” it means we today make the Preamble’s commitments.   

Third, it expresses moral values that matter. It’s likely not accidental that justice and domestic tranquility are the first ones listed.     

In our daily attention to the Constitution’s articles, sections and amendments, we should not treat the Preamble’s 52 words as just fancy rhetoric.

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