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The Preamble was placed in the Constitution more or less as an afterthought. It was not proposed or discussed on the floor of the Constitutional Convention. Rather, Gouverneur Morris, a delegate from Pennsylvania who as a member of the Committee of Style actually drafted the near-final text of the Constitution, composed it at the last moment. It was Morris who gave the considered purposes of the Constitution coherent shape, and the Preamble was the capstone of his expository gift. The Preamble did not, in itself, have any substantive legal meaning.
The understanding at the time was that preambles are merely declaratory and are not to be read as granting or limiting power—a view sustained by the Supreme Court in Jacobson v. Massachusetts (1905).
Nevertheless, the Preamble has considerable potency by virtue of its specification of the purposes for which the Constitution exists. It distills the underlying values that moved the Framers during their long debates in Philadelphia. As Justice Joseph Story put it in his celebrated Commentaries on the Constitution of the United States, “its true office is to expound the nature and extent and application of the powers actually conferred by the Constitution.
” Alexander Hamilton, in The Federalist No. 84, went so far as to assert that the words “secure the Blessings of Liberty to ourselves and our Posterity” were “a better recognition of popular rights, than volumes of those aphorisms, which make the principal figure in several of our state bills of rights.”
An appreciation of the Preamble begins with a comparison of it to its counterpart in the compact the Constitution replaced, the Articles of Confederation.
There, the states joined in “a firm league of friendship, for their common defence, the security of their liberties, and their mutual and general welfare” and bound themselves to assist one another “against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.” The agreement was among states, not people, and the military protection and the liberties to be secured were of the states as such.
The very opening words of the Constitution mark a radical departure: “We the People of the United States.” That language was at striking variance with the norm, for in earlier documents, including the 1778 treaty of alliance with France, the Articles of Confederation, and the 1783 Treaty of Paris recognizing American independence, the word “People” was not used, and the phrase “the United States” was followed immediately by a listing of the states (“viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations,” and so on down to Georgia).
The new phraseology was necessary, given the circumstances. The Constitutional Convention had provided that whenever the popularly elected ratifying conventions of nine states approved the Constitution, it would go into effect for those nine, irrespective of whether any of the remaining states ratified. In as much as no one could know which states would and which would not ratify, the Convention could not list all thirteen. Moreover, names could scarcely be added to the Preamble retroactively as they were admitted. Even so, the phrase set off howls of protest from a number of opponents of ratification, notably Patrick Henry.
Henry charged that the failure to follow the usual form indicated an intention to create a “consolidated” national government instead of the system that James Madison described in The Federalist No. 39 as being “neither a national nor a federal constitution; but a composition of both.” Henry’s assertion was made in the Virginia ratifying convention and was promptly and devastatingly rebutted by Governor Edmund Randolph: “The government is for the people; and the misfortune was, that the people had no agency in the government before….If the government is to be binding on the people, are not the people the proper persons to examine its merits or defects?”
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