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10/02/2021

David Schwartz: Reconsidering the Constitution's Preamble
Michael Ramsey

David S. Schwartz (University of Wisconsin Law School) has posted Reconsidering the Constitution's Preamble: the Words that Made Us U.S. (37 Constitutional Commentary (forthcoming 2022)) on SSRN.  Here is the abstract:

The Preamble to the U.S. Constitution is wrongly dismissed by conventional doctrine as a purely symbolic or stylistic flourish with no operative legal significance. But the drafting history of the Preamble, observable by comparing the preambles in the Articles of Confederation, the Committee of Detail draft of the Constitution, and the Committee of Style's final version, demonstrate that the Framers considered the Preamble to be substantively meaningful. Just what the Preamble means remains ambiguous: it might be viewed as a rejection of compact theory, as an interpretive guide to the powers granted in the body of the Constitution, or as a source of implied powers. But the view that reduces the Preamble to a legally inoperative flourish has no basis as a matter of text or history.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.")

Note: this paper is related to, but not to be confused with, another recent paper by Professor Schwartz on the Committee of Style, described here.