CHAPTER VI.

THE PREAMBLE.

§ 457. HAVING disposed of these preliminary inquiries, we are now arrived at that part of our labors which involves a commentary upon the actual provisions of the Constitution of the United States. It is proposed to take up the successive clauses in the order in which they stand in the instrument itself, so that the exposition may naturally flow from the terms of the text.

§ 458. We begin then with the preamble of the Constitution. It is in the following words:

66

We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, 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."

§ 459. The importance of examining the preamble, for the purpose of expounding the language of a statute, has been long felt, and universally conceded in all juridical discussions. It is an admitted maxim in the ordinary course of the administration of justice, that the preamble of a statute is a key to open the mind of the makers, as to the mischiefs which are to be remedied and the objects which are to be accomplished by the provisions of the statute. We find it laid down in some of our earliest authorities in the common law, and civilians are accustomed to a similar expression, cessante legis præmio, cessat et ipsa lex.1 Probably it has a foundation in the expression of every code of written law, from the universal principle of interpretation, that the will and intention of the legislature are to be regarded and followed. It is properly resorted to where doubts or ambiguities arise upon the words of the enacting part; for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the preamble.

1 Bac. Abridg. Statute I.; 2 Plowden, R. 369; 1 Inst. 79.

§ 460. There does not seem any reason why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble. And accordingly we find that it has been constantly referred to by statesmen and jurists to aid them in the exposition of its provisions.1

§ 461. The language of the preamble of the Constitution was probably in a good measure drawn from that of the third article of the confederation, which declared that "The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare." And we accordingly find that the first resolution proposed in the convention which framed the Constitution was, that the Articles of the Confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution, namely, common defence, security of liberty, and general welfare.2

§ 462. And here we must guard ourselves against an error which is too often allowed to creep into the discussions upon this subject. The preamble never can be resorted to to enlarge the powers confided to the general government or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. Its true office 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, “to provide for the common defence." No one can doubt that this does not enlarge the powers of Congress to pass any measures which they may 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 would promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted? Are we at liberty,

1 See Chisholm v. Georgia, Chief Justice Jay's opinion, 2 Dall. 419.

2 Journal of Convention, 67; Id. 88.

3 Yet, strangely enough, this objection was urged very strenuously against the adoption of the Constitution; 1 Elliot's Debates, 293, 300.

upon any principles of reason or common-sense, to adopt a restrictive meaning which will defeat an avowed object of the Constitution, when another equally natural and more appropriate to the object is before us? Would not this be to destroy an instrument by a measure of its words, which that instrument itself repudiates?

§ 463. We have already had occasion, in considering the nature of the Constitution, to dwell upon the terms in which the preamble is conceived, and the proper conclusion deducible from it. It is an act of the people, and not of the States in their political capacities.1 It is an ordinance or establishment of government, and not a compact, though originating in consent; and it binds as a fundamental law promulgated by the sovereign authority, and not as a compact or treaty entered into and in fieri, between each and all the citizens of the United States as distinct parties. The language is: "We, the people of the United States,” (not, We, the States,)" do ordain and establish" (not, do contract and enter into a treaty with each other) "this Constitution for the United States of America" (not this treaty between the several States). And it is, therefore, an unwarrantable assumption, not to call it a most extravagant stretch of interpretation, wholly at variance with the language, to substitute other words and other senses for the words and senses incorporated, in this solemn manner, into the substance of the instrument itself. We have the strongest assurances that this preamble was not adopted as a mere formulary, but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government. The obvious object was to substitute a government of the people for a confederacy of States; a constitution for a compact.2 The difficulties arising from this source were not slight; for a notion commonly enough, however incorrectly, prevailed, that, as it was ratified by the States only, the States respectively at their pleasure might repeal it; and this, of itself, proved the necessity of laying the foundations of a

1 See 2 Lloyd's Debates, 1789, p. 178, 180, 181.

2 By a constitution is to be understood (says Mr. Justice Wilson) a supreme law, made and ratified by those in whom the sovereign power of the state resides, which prescribes the manner in which that sovereign power wills that the government should be instituted and administered. 1 Wilson's Lectures, 417. [See Jameson, Constitutional Convention, § 63.]

It contributed not a little to the infirmities of the Articles of the Confederation, that it never had a ratification by the people. The Federalist, 22.

national government deeper than in the mere sanction of delegated power. The convention determined that the fabric of American empire ought to rest and should rest on the solid basis of the consent of the people. The streams of national power ought to flow and should flow immediately from the highest original fountain of all legitimate authority.1 And, accordingly, the advocates of the Constitution so treated it in their reasoning in favor of its adoption. "The Constitution," said the Federalist, "is to be founded on the assent and ratification of the people of America, given by deputies elected for that purpose; but this assent and ratification is to be given by the people, not as individuals composing a whole nation, but as composing the distinct and independent States to which they belong."2 And the uniform doctrine of the highest judicial authority has accordingly been, that it was the act of the people, and not of the States; and that it bound the latter as subordinate to the people. "Let us turn,' said Mr. Chief Justice Jay, "to the Constitution. The people therein declare that their design in establishing it comprehended six objects: 1. to form a more perfect union; 2. to establish justice; 3. to insure domestic tranquillity; 4. to provide for the common defence; 5. to promote the general welfare; 6. to secure the blessings of liberty to themselves and their posterity. It would," he added, "be pleasing and useful to consider and trace the relations which each of these objects bears to the others, and to show that, collectively, they comprise everything requisite, with the blessing of Divine Providence, to render a people prosperous and happy." In Martin v. Hunter's Lessee, the Supreme Court say, (as we have seen,) "The Constitution of the United States was ordained and established, not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by the people of the United States"; and language still more expressive will be found used on other solemn occasions.5

4

§ 464. But this point has been so much dwelt upon in the discussion of other topics, that it is wholly unnecessary to pursue

1 The Federalist, No. 22; see also No. 43; 4 Elliot's Debates, 75; ante, p. 248.

2 The Federalist, No. 39; Id. No. 84.

8 Chisholm v. Georgia, 2 Dall. 419.

4 1 Wheat. R. 305, 324.

5 See Mc Culloch v. Maryland, 4 Wheat. R. 316, 404, 405; Cohens v. Virginia, 6 Wheat. R. 264, 413, 414; see also 1 Kent's Comm. Lect. 10, p. 189.

6 Ante, p. 318 to 322.

further. It does, however, deserve notice, that this phraseology was a matter of much critical debate in some of the conventions called to ratify the Constitution. On the one hand it was pressed, as a subject of just alarm to the States, that the people were substituted for the States; that this would involve a destruction of the States in one consolidated national government; and would terminate in the subversion of the public liberties. On the other hand, it was urged, as the only safe course for the preservation of the Union and the liberties of the people, that the government should emanate from the people, and not from the States; that it should not be, like the confederation, a mere treaty, operating by requisitions on the States; and that the people, for whose benefit it was framed, ought to have the sole and exclusive right to ratify, amend, and control its provisions.1

§ 465. At this distance of time, after all the passions and interests which then agitated the country have passed away, it cannot but be matter of surprise that it should have been urged, as a solid objection to a government intended for the benefit of the people and to operate directly on them, that it was required to be ratified by them, and not by bodies politic created by them for other purposes, and having no implied authority to act on the subject.

§ 466. The Constitution having been in operation more than forty years, and being generally approved, it may, at first sight, seem unnecessary to enter upon any examination of the manner and extent to which it is calculated to accomplish the objects proposed in the preamble, or the importance of those objects, not merely to the whole, in a national view, but also to the individual States. Attempts have, however, been made at different times, in different parts of the Union, to stir up a disaffection to the theory, as well as the actual exercise of the powers of the general government; to doubt its advantages; to exaggerate the unavoidable inequalities of its operations; to accustom the minds of the people to contemplate the consequences of a division, as fraught with no

2

1 The debates in the Virginia Convention are very pointed on this subject. Mr. Henry urged these objections against it in a very forcible manner (2 Elliot's Virginia Debates, 47, 61, 131); and he was replied to, and the preamble vindicated with great ability by Mr. Randolph, Mr. Pendleton, Mr. Lee, Mr. Nicholas, and Mr. Corbin. Elliot's Virginia Debates, 51, 57, 97, 98. The subject is also discussed in the North Carolina Debates, (3 Elliot's Deb. 134, 145,) and in the Massachusetts Debates. 1 Elliot's Deb. 72, 110. See also 2 Pitk. Hist. 370; 3 Amer. Museum, 536, 546.