By Charlie Ogle, Presented by the Constitutional Law Foundation at the L.A.W. Public Interest
Law Conference, at the University of Oregon, 7 March 1998.
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We the people of the United States, in order to form a more perfect union, establish Justice, insure domestic Tranquillity, 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.
This Preamble can be divided into three sections. First, "We the people" names the actors. Next, "In order to form a more perfect union…" describes the action. The third section is perhaps the most interesting, and the most neglected, portion of the entire Constitution. It names the intended beneficiaries of the actions to be undertaken by "We the People". Who are these beneficiaries? "ourselves and our Posterity."
We the People…to ourselves and our Posterity, do ordain and establish this Constitution. What does this mean? Perhaps that the intent of the Constitution’s framers and adopters was to set up a government that would look out for the interests not only of today’s citizens, but also the interests of posterity.
In order to determine what the Preamble means, we could look to prior interpretations- preferably by the Supreme Court. There are two problems with this method. First, the Court can be wrong. They can be out of step with the views of the country. What if we had all accepted the Court’s earliest view of interstate commerce? Of civil rights? For better or worse, Constitutional interpretations in these, and other, areas have changed very dramatically. The Court’s interpretation of the Constitution is fluid, and is driven by changes in the perspective of the age. While we must accept the Court’s interpretation as law, we should not casually accept it as correct. We should make our own judgment, and then work for change if we feel that the Court is out of step.
The second problem with relying on prior interpretation is, in this instance, severe: there is no precedent to look to. The Federal Courts have never spoken on the meaning of the words "ourselves and our Posterity" in the Preamble.
We are on our own, and must determine for ourselves what the Preamble means.
Following are arguments on some of the issues involved in interpreting the Preamble
Chief Justice Marshall wrote, while speaking for the Supreme Court in Sturges v. Crownshield, 17 US 122 at 202, that "the spirit of an instrument, especially of a Constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words." If the "spirit" of the Constitution is to be collected from its words, the Preamble is clearly the place to start, as the Preamble most clearly lays out the vision and wishes of the framers and adopters of the Constitution. It seems clear that both the spirit and words of the Preamble direct our government to protect the interests of posterity.
The Supreme Court has recognized the Preamble’s words as a statement of the spirit of the Constitution; Justice Harlan, writing for the Court in Jacobson v. Mass., 197 US 11 (1904) at 22, cited, directly in reference to the Preamble, Chief Justice Marshall’s reference to collecting the spirit of an instrument from its words.
In Holmes v. Jennison 39 US 540 (1840) at 570, Chief Justice Tanney wrote "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." [See also: Richmond Oil v. State Board, 329 US 69 at 77-78] Clearly Justice Tanney’s reference to "the whole instrument" can not be read in a way that allows separation of the Preamble. It is thus difficult to reconcile Supreme Court precedent with any suggestion that the Preamble is somehow less meaningful or less binding that the articles and amendments.
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