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John Welch & James Heilpern: The Preamble's Principal Place in Constitutional Law
Michael Ramsey

John W. Welch (Brigham Young University - J. Reuben Clark Law School) and James Heilpern (Law and Corpus Linguistics Fellow, Brigham Young University - J. Reuben Clark Law School) have posted The Preamble's Principal Place in Constitutional Law (91 S. Cal. L. Rev., forthcoming) on SSRN [although the title in the actual posted paper is "Recovering Our Forgotten Preamble," which I like a lot better].  Here is the abstract:

This article argues that the Preamble to the Constitution of the United States of America deserves a place of primacy in constitutional law, in federal judicial decision-making, and in the nation’s civic discourse. The Preamble does more than set forth general, vague aspirations. It epitomizes the particular purposes behind the adoption of the Constitution that were desperately needed to repair and replace the faltering Articles of Confederation. The Preamble’s words were specifically and methodically chosen, both in the Preamble itself and often within the body of the Constitution. Based on their prompt affirmative vote, all members of the Constitutional Convention, which drafted the version of the Constitution that was submitted to the thirteen states for ratification, readily embraced the Preamble. Some delegates later stated explicitly that it should be used as the key to interpreting the Constitution, its meanings, intentions, purposes, and limitations. Indeed, it is doubtful that the Constitution would have been ratified without the text of the Preamble prominently standing at the top of the proposed document, and the Preamble occupied a dominant and valuable position at the head of constitutional analysis throughout the nineteenth century. In 1905, however, the United States Supreme Court decided the case of Jacobson v. Massachusetts. This case has been rarely discussed at any length and is only vaguely remembered. Perhaps somewhat unwittingly, the Court used language that has been understood to relegate the Preamble to a minor, insubstantial role: “Although that 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.” The Court then went on summarily to treat the Preamble as irrelevant to the case. 

As will be argued here, the Court’s unnecessarily broad language should be seen as dicta or should otherwise be narrowed or recalibrated. Although in some senses the Preamble may not be a “source of any substantive power” conferred upon the federal government by the people of the United States, this does not mean that the Preamble does not serve any legal functions, as has been consequently generally thought. Instead, the Preamble is a collective source of unifying objectives for the operation of the American democratic republic. It is a formative statement of guiding principles to be used in interpreting the meaning of the words and structures found in the body of the Constitution. It is a body of authorizing statements of purpose that regulate the reasons behind the organic operations of the federal government. And it constitutes a selected list of limits that set boundaries beyond which the federal government is not authorized to go. The 1905 assertion by the Supreme Court and its application in Jacobson was based on little, if any, substantive research, briefing, discussion, argument, or consideration. Moreover, this opening point in the Jacobson opinion was not material to the holding of the case. Consequently, this dicta should be clarified or otherwise revised.

Jacobson’s dicta has gone down in subsequent judicial history and political thought as a controlling dismissal of the idea that the Preamble to the Constitution of the United State has much if any legal power or effect, and it has most likely contributed to the popular idea that the Preamble has little or no legal value or judicial usefulness. As a result, developments over the intervening century of American constitutional law and politics have left the United States in an odd position of unnecessary weakness. The Preamble is rarely mentioned in federal court opinions, in constitutional law treatises, or in leading law school constitutional textbooks. Increasingly, the Preamble is less often taught or memorized in primary or secondary school curricula. At a time when constitutional courts could use principled guidance more than ever before in drawing upon the fundamental purposes that give American constitutional jurisprudence its unifying coherence and authority, it is unfortunate that the Preamble’s primary written articulation of those leading civic values and defining governmental purposes goes almost entirely unmentioned. In order to lay a foundation for assessing Jacobson’s unsupported claim that the Preamble had “never been regarded as the source of any substantive power” and also to expand Jacobson’s glancing reference to Justice Story’s 1833 Commentary on the Constitution, Part I of this study begins at the inception of the American Republic and examines the legal and textual history of the Preamble from the founding era of the United States of America until the end of the nineteenth century. This Part develops several lines of inquiry and analysis in order to broaden and strengthen any understanding of the Preamble. This study aims to appeal both to those who favor a more authoritative originalist approach and to those who prefer a more organic living approach. It will be shown that the Preamble was intended to be and functioned as an important statement of specific and exclusive purposes to be undertaken by the federal government. 

Questions raised here will first include: What problems had arisen under the Articles of Confederation? What words from the Articles of Confederation were retained or dropped by the Preamble in addressing those problems? (I. §A). How did the language of the Preamble crystallize the proposed plans for the Constitution? What instructions were given by the Committee of Detail regarding the drafting of the Preamble? (I. §B). Who served on the Committee on Style that drafted the Preamble, and what use did they make of language in preambles from earlier state constitutions? (I. §C). How does the Preamble relate to the Declaration of Independence or other political, philosophical, religious, or legal sources? (I. §§D.-E). What legal force and effect did “whereas clauses” or preambles have at the beginning of statutes or contracts under the Common Law in the late-eighteenth century? (I. §F). Part I then turns to questions such as: How important was the Preamble in facilitating the ratification of the Constitution? What made the Preamble so persuasive and felicitous? What was said about the intentions behind the Preamble by members of the Constitutional Convention and in state ratifying conventions? (I. §G). How does the Preamble relate to the Ninth and Tenth Amendments, especially the lack of the word “expressly” in the latter? (I. §H). Using the latest technology and the Corpus Linguistics data base, the contemporaneous meanings of some of the main terms in the Preamble will be explored. (I. §I). All of this sheds light on how the Preamble contributes legally to Constitutional law, both as a whole and with respect to its specific words.

Part I then considers the ways in which people understood and used the Preamble during the Early American Republic and through the end of the nineteenth century leading up to Jacobson. It will be shown that the principles embedded in the Preamble were viewed as articulating the essence of the Constitution and that the Preamble was considered by some to be, in theory, the key of constitutional law. Although debated, the dominant view allowed for the Preamble to be seen as providing implied powers as well as purposeful guidance to all of the operations of the United States. Questions raised in these sections will include: How was the Preamble understood by the Supreme Court in the early nineteenth century? (I. §J) How were the Preamble and the Tenth Amendment understood in the great 1830 debate on the nature of the Constitution (I. §K.2), and also in the 1833 commentary by Harvard Professor and Supreme Court Justice Joseph Story (I. §K.4)? How was the Preamble invoked politically by John Quincy Adams in the Jubilee celebration of the United States Constitution in 1837, by presidential candidate Joseph Smith in 1844, by Senator John C. Calhoun, and by President Abraham Lincoln? (I. §§K6-8). A history of the development of preambles in state constitutions throughout the nineteenth century will conclude this Part, showing that the individual state constitutional preambles were carefully drafted, seen as having legal substance, and made use of language from the federal Preamble, affirming the legal import of constitutional preambles generally (I. §L). Part II of this article then offers a detailed examination of the 1905 Supreme Court opinion in Jacobson v. Massachusetts. It will be argued, on several grounds, that this case should not be cited in support of propositions that the Preamble is not law or that it is not part of the Constitution, as some courts and public discourse have in effect taken that case to mean. Since the holding of this case turned on other factual grounds irrespective of the Preamble (II. §§A-B), its characterization of the Preamble should be limited or otherwise dismissed as dicta without affecting or overturning the actual holding of that case (II. §C). Indeed, the general understanding of Jacobson should be modified, as it represents an unwarranted departure from eighteenth- and nineteenth-century American jurisprudence.

Part III then surveys how Jacobson has been interpreted by federal courts since 1905. At first, Jacobson’s marginalizing of the Preamble was readily accepted, but in many cases, Jacobson has simply been ignored (III. §A). The relatively few law review articles or essays about the Preamble will be surveyed to show that the Preamble is rightly seen as more than just aspirational or wishful (or dangerous) thinking of the people. The Preamble has served a number of legal purposes and, in particular, has helped constitutional law stay responsive to major social changes and legal developments during the years since Jacobson. (III. §B).

Comparative constitutional law also shows that preambles generally are treated as legally important—and sometimes as controlling—in the jurisprudence of Germany, South Africa, and elsewhere. International political and legal experience show that legal invocations of preambles should not be dismissed simply because their terms may be broad or general or for any other arbitrary reason. The Preamble’s terms are no broader or any less important than other important foundational terms in the Constitution. (III. §C).

In conclusion, Part IV looks briefly at the broad state of the law concerning the Preamble today. It will be argued that the Preamble should be understood in the twenty-first century as serving several legal functions, not only in implying certain powers but also in limiting the number and scope of federal constitutional purposes and enumerated powers. Thus, any action of the federal government that cannot be said to serve primarily one or more of the purposes stated in the Preamble should be ruled out of bounds. Very different from the perception of Jacobson, this view aligns with what James Monroe meant when he said that the Preamble “is the Key of the Constitution.” Whenever 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.” Altogether, this Article encourages citizens, lawyers, officials, judges, scholars, diplomats, educators, and politicians throughout America to take the Preamble more seriously than it was taken in the early twentieth century under the chilling effect of Jacobson.