Reconsidering the Constitution's Preamble: the Words that Made Us U.S.
37 Constitutional Commentary (2022 Forthcoming)
14 Pages Posted: 28 Sep 2021
Date Written: September 25, 2021
The Preamble to the U.S. Constitution is wrongly dismissed by conventional doctrine as a purely symbolic or stylistic flourish with no operative legal significance. But the drafting history of the Preamble, observable by comparing the preambles in the Articles of Confederation, the Committee of Detail draft of the Constitution, and the Committee of Style's final version, demonstrate that the Framers considered the Preamble to be substantively meaningful. Just what the Preamble means remains ambiguous: it might be viewed as a rejection of compact theory, as an interpretive guide to the powers granted in the body of the Constitution, or as a source of implied powers. But the view that reduces the Preamble to a legally inoperative flourish has no basis as a matter of text or history.
Keywords: Constitution, Preamble, Committee of Style, Gouverneur Morris, Committee of Detail, Articles of Confederation, We the People, compact theory, interpretation, original meaning, originalism, Federalist, George Washington, Constitutional Convention, enumerationism, nullification
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