Intergenerational Justice in the United States Constitution,
The Stewardship Doctrine:
III. Constitutional Text

1. The Preamble.

The most explicit manifestation of intergenerational concern in the federal constitution occurs in 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 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." f208

The Preamble's posterity clause has quite a respectable historic lineage, with antecedents in such fundamental documents as the Magna Carta, f209 the English Bill of Rights, f210 the Pennsylvania Charter of Privileges, f211 the Massachussetts Body of Liberties, f212 the Massachussetts Declaration of Rights, f213 and the Virginia Declaration of Rights. f214 Each of these documents created a new political reality. As part of the act of creation, the framers in each case drew upon certain ritual formulas, one of the most important being reaffirmation of the present generation's responsibility to future generations. With each act of re-constitution, the spirits of the past and of the future were invoked, and the sanctity of the intergenerational community thereby reaffirmed.

The tendency of some modern lawyers to dismiss the Preamble as "fluff," without legal import, is unfortunate and unwarranted. The courts have long recognized that, "In expounding the Constitution . . . every word must have its due force; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added." f215 Moreover, the Preamble is uniquely portentous in so far as it proclaims the ultimate ends for which the entire constitutional framework was established. As Sidney once noted, "[W]hatever the Institution be, and how long soever it may have lasted, 'tis void, if it thwarts, or does not provide for the ends of its establishment." f216

In recognition of this principle, the United States Supreme Court relied heavily on the Preamble in its early adjudications. A case in point is Chisholm v. Georgia, f217 the 1793 dispute in which the court was first called upon to resolve a significant constitutional issue. In their written opinions in that case, Justices Wilson and Jay both explicated the Preamble at length. f218 Since Chisholm, the high court has looked to the Preamble when resolving constitutional disputes involving such diverse issues as: draft registration, f219 entitlement programs, f220 legislative reapportionment, f221 and secession. f222

Story's Commentaries describes the Preamble's role in constitutional construction as follows:

"[It] is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part. . . . Its true office is to expound the nature, and extent, and application of the powers actually conferred by the constitution . . .." f223

Accepting then that the Preamble has both weight and purpose, it is important to understand the place and function of the posterity clause within the Preamble. What precisely did the founders guarantee to "ourselves and our Posterity?" The Preamble includes several goals: perfecting the union, establishing justice, insuring tranquility, providing defense, promoting welfare, and insuring the blessings of liberty. Because of the Preamble's peculiar construction, it is not immediately clear which goals pertain to "ourselves and our Posterity." Were future generations promised justice? Were they, in other words, promised that future interests would be taken into account in the policy-making of the present? Or is the posterity clause really just a statement of later generations' obligation to submit to the governance system fashioned by their ancestors?

A careful explication of the Preamble yields several possible interpretations of the posterity clause, all of which support a stewardship doctrine of broad application.

Under one analysis of the Preamble (hereinafter Analysis 1), the posterity clause can be understood to modify each of the six express aims which precede it. A paraphrase might read, "We the People, in order to form, establish, insure, provide, promote and secure [certain ends] to ourselves and our posterity, do ordain and establish this Constitution." This reading supports the contention that the federal government, in all its branches, policies and programs, was intended to operate for the benefit of all generations. f224

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