Intelligence Law School - Course 1: Lesson 3.3.1 Preamble Generally [HTML-Only]


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LESSON 3: CONSTITUTIONAL LAW


3.3 The Preamble


3.3.1 Preamble Generally


Lecture Audio



Annotated Lecture Transcript

3.3.1 Preamble Generally

So the Constitution is made up of

1)      1 Preamble;

2)     7 Articles that make up the Body of the Text; and

3)     27 Amendments that were tacked onto the end of it.

 

Let’s run through the document from top to bottom. 

If you have a copy of the Constitution handy, start at the top with the part that says “We the people…”

Ø  It says, “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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.”[1]

 

That’s the Preamble.

It’s really just aspirational, feel-good language that has no real meat to it.[2]

There are no requirements and no powers vested.

It just states the reasons for establishing the Constitution.

Rarely, a judge might refer to it, but only as support for a particular interpretation of the substantive provisions in the Articles or Amendments.[3]

 

Footnotes

[1] U.S. Const. Preamble (“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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.”).

[2] See Generally The Constitution of the United States: Analysis and Interpretation (Constitution Annotated), Preamble Chapter, pg. 1, Senate Document No. 39, 88th Congress, Pub. L. 91-589, 84 Stat. 1585, 2 U.S.C. § 168 (1964) (Revised Edition 2002) ("Although the preamble is not a source of power for any department of the Federal Government, the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution. ‘‘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?’’). Preambles are not considered part of the law in statutory interpretation as well. See Yule Kim & George Costello, Congressional Research Serv., Statutory Interpretation: General Principles and Recent Trends (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/97-589_8-31-2008.pdf (“Preambles, or “whereas clauses,” precede the enacted language, “are not part of the act,” and consequently “cannot enlarge or confer powers, nor control the words of the act, unless they are doubtful or ambiguous.” [Yazoo and Mississippi Valley R.R. v. Thomas, 132 U.S. 174, 188 (1889).] Nonetheless, “whereas clauses” sometimes serve the same purpose as findings and purposes sections, and can provide useful insight into congressional concerns and objectives. [See, e.g., Donovan v. Dewey, 452 U.S. 594, 602 n.7 (1981) (citing the preamble to the Mine Safety and Health Act as evidence of congressional awareness of the hazardous nature of the mining industry); Gray v. Powell, 314 U.S. 402, 418 (Justice Roberts, dissenting) (citing the preamble of the Bituminous Coal Act as evidence of congressional purpose).]  As with titles, preambles can sometimes help resolve ambiguity in enacted language. [“[T]he preamble may be referred to in order to assist in ascertaining the intent and meaning of a statute fairly susceptible of different constructions.”  Price v. Forrest, 173 U.S. 410, 427 (1899).]”).

[3] For a discussion of the rules of statutory interpretation that apply to judges’ interpretation of the preambles of legislative acts, see Yule Kim & George Costello, Congressional Research Serv., Statutory Interpretation: General Principles and Recent Trends (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/97-589_8-31-2008.pdf (“Preambles, or “whereas clauses,” precede the enacted language, “are not part of the act,” and consequently “cannot enlarge or confer powers, nor control the words of the act, unless they are doubtful or ambiguous.”[Citing Yazoo and Mississippi Valley R.R. v. Thomas, 132 U.S. 174, 188 (1889)] Nonetheless, “whereas clauses” sometimes serve the same purpose as findings and purposes sections, and can provide useful insight into congressional concerns and objectives. [Citing See, e.g., Donovan v. Dewey, 452 U.S. 594, 602 n.7 (1981) (citing the preamble to the Mine Safety and Health Act as evidence of congressional awareness of the hazardous nature of the mining industry); Gray v. Powell, 314 U.S. 402, 418 (Justice Roberts, dissenting) (citing the preamble of the Bituminous Coal Act as evidence of congressional purpose)] As with titles, preambles can sometimes help resolve ambiguity in enacted language. [Citing “[T]he preamble may be referred to in order to assist in ascertaining the intent and meaning of a statute fairly susceptible of different constructions.”  Price v. Forrest, 173 U.S. 410, 427 (1899).]”).

 


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