The Preamble in Constitutional Interpretation
International Journal of Constitutional Law, I-CON, Forthcoming
25 Pages Posted: 3 Oct 2010 Last revised: 10 Dec 2014
Date Written: October 3, 2010
From Plato’s Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy-making. Through a qualitative analysis of the legal status of preambles in different common law and civil law countries, the Article highlights a recent trend in comparative constitutional law: the growing use of preambles in constitutional adjudication and constitutional design.
The Article explores the theory of preambles and their functions. It examines the legal status of the U.S. Preamble. It shows how the U.S. Preamble remains the most neglected section in American constitutional theory. The Article then presents a typology for determining the legal status of preambles: a symbolic preamble, an interpretive preamble, and a substantive preamble. While focusing on Macedonia, the State of Israel, Australia, and the Treaty of Lisbon, the Article discusses the sociological function of preambles in top-down and bottom-up constitutional designs.
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