Preamble to the United States Constitution
The Preamble to the United States Constitution almost opened with a list of names. For most of the 1787 Constitutional Convention, held at Independence Hall in Philadelphia, the working draft named the states one by one. The listing ran from north to south, as was the norm in earlier American documents. Then, in the final days of the convention, a Pennsylvania delegate named Gouverneur Morris rewrote it. He collapsed the entire list into three words: "We the People."
Those fifty-two words became a recurring touchstone in American courts. Who, exactly, are "the People" they speak for? How far does the Constitution reach? And what can a mere introduction to a legal document accomplish in court?
Morris made his edits quietly, as the leader of a small committee given the task of polishing the convention's final draft.
The 1778 Treaty of Alliance with France had established a template that American documents returned to for nearly a decade. That treaty, like the Articles of Confederation and the 1783 Treaty of Paris, handled "the United States" by listing the individual states. The listing ran from north to south. The initial draft of the Constitution's preamble followed the same convention.
What made that convention unworkable in 1787 was the Constitution's own ratification clause. The Articles of Confederation had required all thirteen states to agree before anything could change. The new Constitution would take effect as soon as nine states approved it. Any state that had not ratified would then be absent from the new union but still named in its preamble. The mismatch would have been glaring.
Morris collapsed the list into a collective noun. The opening placed authority in "the People of the United States" rather than in a named committee of sovereign states. Courts would later cite that language as evidence that the Constitution was not an agreement between independent states. The document derived its power directly from the citizenry.
But deciding what "the People" actually meant in legal terms would take courts generations.
"People of the United States," courts have consistently held, means "nationals and citizens." That reading implies a limit: if the political community speaking in the Preamble includes only nationals and citizens, non-citizens are excluded in some respects.
A second, broader interpretation construes "the People" as encompassing all persons under the sovereign jurisdiction and authority of the United States. Courts have applied different framings depending on the constitutional question at hand.
The Supreme Court has drawn from "the People of the United States" to define how sovereignty works within American borders. It has held that the United States is one sovereign nation with respect to foreign affairs. Individual states may not conduct their own foreign relations. Domestically, the federal government is supreme over matters the Constitution entrusts to it, while states retain sovereignty over other areas. The Supreme Court has sometimes analogized the states to foreign countries relative to each other. That analogy captures how American law treats separate state sovereignties within one union.
Because the Constitution is an act of "the People" as a whole, individual citizens cannot simply bring a constitutional challenge because they dislike a law. Only someone directly harmed by a statute can challenge it in court. A person who receives benefits created by a statute cannot then challenge, on constitutional grounds, the mechanism by which those benefits are awarded.
Creditors who lose money when a bankrupt's debts are discharged cannot claim injury from the discharge itself. Congress's power to enact bankruptcy law inherently includes the authority to declare certain debts valueless. Courts will not answer hypothetical questions about a statute's constitutionality. They can act only when a specific person's interests have been injured by a law's operation. Once a person is actually charged with violating a law, they may challenge that law's constitutionality in court. The constitutional challenge need not be related to the circumstances of the charge.
That question about who could invoke the Constitution's protections came into sharp focus during a national economic crisis. The government's lawyers tried to use the Preamble's language to expand federal regulatory authority.
United States v. Kinnebrew Motor Co. arrived in court as the country was struggling through the Great Depression. A car dealership in Oklahoma City had sold a new automobile to a local customer for less than the price the National Industrial Recovery Act required. Congress had passed the Act to address the economic emergency. One of its provisions gave the President authority to fix the prices at which new cars could be sold.
The Preamble's reference to "the general Welfare," the government argued, gave Congress the authority to regulate that transaction. The court dismissed the argument. The only relevant question, it said, was whether the sale constituted interstate commerce under established Supreme Court precedents. The Preamble could not create powers that were not already written elsewhere in the Constitution.
No court has ever used the Preamble as a decisive factor in resolving a case, except to dismiss frivolous lawsuits. It remains, in the courts' consistent reading, a statement of purposes rather than a grant of authority.
Ellis v. City of Grand Rapids, a case about hospital construction, would reveal a different use for those fifty-two words.
The city of Grand Rapids wanted to use eminent domain to force the sale of land it had identified as blighted. The plan was to transfer the property to St. Mary's Hospital, a Catholic organization, for medical development. The legal question was whether this constituted a "public use" under the Fifth Amendment. The Constitution requires that property acquired through eminent domain be put to public use.
The court pointed to the Preamble's reference to "promoting the general Welfare." It ruled that "the health of the people was in the minds of our forefathers." Expanding hospital and medical care centers was, the court found, a public service and use within the highest meaning of those words. This was in accord with the Constitution's objective of promoting the general Welfare.
Courts distinguish between two kinds of constitutional interpretation: one that focuses on exact wording, and one that seeks the document's spirit. The Preamble, as the Founders' plain statement of what they were trying to achieve, provides evidence for both.
The Founders preserved many concepts from British common law, among them habeas corpus, trial by jury, and sovereign immunity. Courts cite the Preamble to explain why those inherited concepts matter in interpreting the Constitution. The Founders' understanding of how the new document interacted with those concepts is treated as uniquely important. Courts have also noted that historical understandings of the Constitution are sometimes in tension with modern circumstances, and they must read the Constitution in light of how society has changed since the late eighteenth century. The Supreme Court has read the purposes stated in the Preamble as supporting a preference for broad interpretations of individual freedoms.
The Supreme Court eventually found a further use for the Preamble's opening declaration: defining where the Constitution's protections applied, and where they stopped.
During World War II, an American serviceman stationed in China was convicted of murder by the United States Court for China. After being transferred to a prison in the state of Washington, he filed a writ of habeas corpus. His argument: he had been tried without a jury, in violation of the Constitution. The court in Casement v. Squier ruled against him. His trial had met basic American standards of fairness. The specific right to trial by jury did not extend to American proceedings held overseas.
Casement v. Squier illustrated a principle the Preamble helped establish. The Constitution was made for, and is binding only in, the United States of America. The harder question was what counted as "the United States."
In 1901, the Supreme Court addressed that question directly. The Preamble's phrase "People of the United States" provided the key. Since the Constitution belonged to those People, the Court reasoned, some places under American jurisdiction might not count as part of the Union they formed. Such places were not guaranteed every constitutional protection.
Puerto Rico became the most litigated example. After Spain ceded the island to the United States, a customs collector tried to tax goods arriving from Puerto Rico as foreign imports. In DeLima v. Bidwell, the Supreme Court ruled that Puerto Rico was no longer a foreign country. Those goods could not be taxed as imports. But in Downes v. Bidwell, the Court reached a different conclusion. Puerto Rico did not count as "the United States" for purposes of the Constitution's tax-uniformity requirement. Congress could tax Puerto Rican goods at a different rate from other commerce. A lower court went further. Goods brought from Puerto Rico into New York before the relevant tax law was passed could have that tax applied retroactively. The Constitution's ban on ex post facto laws did not apply, because Puerto Rico was neither a foreign country nor a state. Yet in Ochoa v. Hernandez y Morales, the Fifth Amendment's due process guarantee was held to apply in Puerto Rico. Puerto Rico was not a state, but it was under American sovereignty.
Washington, D.C. presented its own puzzle. In Geofroy v. Riggs, a United States-France treaty applied "in the States of the Union." The Supreme Court held that it also reached Washington, D.C., even though D.C. is not a state or part of a state.
Those geographic questions about the boundaries of "the United States" sat alongside another unresolved phrase in the Preamble. "A more perfect Union" was still being interpreted in ways the Founders had not anticipated.
The word "perfect," as Gouverneur Morris used it in 1787, did not mean flawless. Its contemporaneous meaning was complete, finished, fully informed, or certain. In the language of the time, "to form a more perfect Union" meant to complete what the Articles of Confederation had left unfinished.
After the Civil War and the ratification of the Fourteenth Amendment, the Supreme Court developed that reading. The Union had been made "more perfect," the Court said, by creating a federal government powerful enough to act directly upon citizens. Under the Articles of Confederation, the national government could act on citizens only indirectly, through the states. The new Constitution fixed that.
The phrase has also been read to support the Constitution's Supremacy Clause. Courts have interpreted it as ruling out secession, state nullification of federal law, and the dissolution of the Union. The Constitution, on this reading, does not contemplate any of those outcomes.
In 2008, a widely reported speech by then-candidate Barack Obama carried the same title: "A More Perfect Union." Obama's use of the phrase shifted the popular understanding from a historical reference to an ongoing aspiration. In his words: "To know what has come before is to be armed against despair. If the men and women of the past, with all their flaws and limitations and ambitions and appetites, could press on through ignorance and superstition, racism and sexism, selfishness and greed, to create a freer, stronger nation, then perhaps we, too, can right wrongs and take another step toward that most enchanting and elusive destinations: a more perfect Union."
That reading, of an America perpetually working toward its own ideals, would reach a new generation through an unexpected vehicle.
Beginning in 1976, many American children learned the words of the Preamble not in a classroom but through a television cartoon. A Schoolhouse Rock! segment titled "The Preamble" set the text to music. The segment was part of a broader series designed to make civics and grammar memorable.
Later studies found that the segment worked. Children who watched it retained the Preamble's words more accurately over the long term than those who did not. A spoken version, however, proved more effective at conveying what the words meant. Knowing the tune was not the same as understanding the text.
The Schoolhouse Rock! segment contained one deviation from the actual document. For metric reasons, the phrase "of the United States" was omitted from the first line. "We the People of the United States" became, in the version millions of children memorized, simply "We the People." That same phrase is at the center of cases that reached from Puerto Rico to a military court in wartime China.
Common questions
Who wrote the Preamble to the United States Constitution?
Gouverneur Morris, a Pennsylvania delegate to the 1787 Constitutional Convention, wrote the Preamble to the United States Constitution. He led the Committee on Style, which was assigned to produce the Constitution's final draft during the convention's closing days at Independence Hall in Philadelphia. The Preamble was never debated on the convention floor before Morris's version was adopted.
What does the Preamble to the United States Constitution actually do legally?
The Preamble to the United States Constitution serves solely as an introduction. It does not grant powers to the federal government or impose specific limits on government action. No court has used it as the decisive factor in a case, except to dismiss frivolous lawsuits, though courts do cite it as evidence of the Founders' intentions when interpreting the Constitution.
Why does the Preamble to the United States Constitution say "We the People" instead of listing the states?
The Preamble to the United States Constitution says "We the People" because listing individual states by name became unworkable under the new ratification rules. The Constitution would take effect once nine of the thirteen states approved it, making a state-by-state opening untenable if any states declined to ratify. Earlier American documents, including the Articles of Confederation and the 1783 Treaty of Paris, had listed the states from north to south.
What does "a more perfect Union" mean in the Preamble to the United States Constitution?
In the language of 1787, "a more perfect Union" in the Preamble to the United States Constitution meant a more complete or finished union, referring to the shift away from the Articles of Confederation. After the Civil War and the ratification of the Fourteenth Amendment, the Supreme Court interpreted the phrase as describing a federal government with enough power to act directly upon citizens. In 2008, Barack Obama's widely reported speech "A More Perfect Union" extended the phrase's popular meaning to describe an ongoing process of national improvement.
Does the Preamble to the United States Constitution apply overseas or in US territories?
The Preamble to the United States Constitution confirms that the Constitution was made for, and is binding only in, the United States of America. In Casement v. Squier, a World War II serviceman tried by an American court in China was held not to have the constitutional right to a jury trial. The Supreme Court held in 1901 that there may be places within American jurisdiction that are no part of the Union, a principle applied in a series of cases involving Puerto Rico and Washington, D.C.
How did Schoolhouse Rock! teach the Preamble to the United States Constitution?
A Schoolhouse Rock! segment titled "The Preamble," which began airing in 1976, set the words of the Preamble to the United States Constitution to music. Later studies found the segment was effective at reinforcing long-term memory of the words, though a spoken version proved more effective for understanding their meaning. The segment omitted the phrase "of the United States" from the first line for metric reasons.
All sources
7 references cited across the entry
- 2Essay on the PreambleForrest McDonald — The Heritage Foundation
- 5A DICTIONARY OF THE ENGLISH LANGUAGE: IN WHICH THE WORDS ARE DEDUCED FROM THEIR ORIGINALS, AND ILLUSTRATED IN THEIR DIFFERENT SIGNIFICATIONS BY EXAMPLES FROM THE BEST WRITERS. TO WHICH ARE PREFIXED, A HISTORY OF THE LANGUAGE, AND An ENGLISH GRAMMAR.SAMUEL JOHNSON, LL.D.
- 6The Soul of America.Meacham, Jon. — Penquin/Random House. — May 8, 2018