The Preamble

The Preamble

Purpose and Effect of the Preamble

Although the preamble is not a source of power for any department of the Federal Government,¹ the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution.² “Its true office,” wrote Joseph Story in his Commentaries, “is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, ‘provide for the common defense.’ No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?”³

¹ Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905).

² E.g., the Court has read the preamble as bearing witness to the fact that the Constitution emanated from the people and was not the act of sovereign and independent States. McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 403 (1819) Chisholm v. Georgia, 2 Dall. (2 U.S.) 419, 471 (1793); Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304, 324 (1816), and that it was made for, and is binding only in, the United States of America. Downes v. Bidwell, 182 U.S. 244 (1901); In re Ross, 140 U.S. 453, 464 (1891).

³ 1 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 462 (1833). For a lengthy exegesis of the preamble phrase by phrase, see M. ADLER & W. GORMAN, THE AMERICAN TESTAMENT 63-118 (1975).

Last modified: September 25, 2006

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THE PREAMBLE

Purpose and Effect of the Preamble