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Recovering Our Forgotten Preamble

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Recovering Our Forgotten Preamble RECOVERING OUR FORGOTTEN PREAMBLE JOHN W. WELCH* AND JAMES A. HEILPERN† TABLE OF CONTENTS INTRODUCTION .................................................................................. 1022 I. THE PREAMBLE: FROM INCEPTION TO JACOBSON ................ 1027 A. BEGINNINGS OF THE PREAMBLE IN THE ARTICLES OF CONFEDERATION ............................................................................ 1027 B. THE PREAMBLE AND THE CONSTITUTIONAL CONVENTION ........... 1030 C. DRAWING STRENGTH FROM PUBLIC VOICES: STATE CONSTITUTIONS AND CHARTERS .................................................... 1035 D. EVOKING AUTHORITY FROM KING JAMES VOCABULARY ............. 1040 E. THE PREAMBLE AND ITS EIGHTEENTH-CENTURY UNDERSTANDING OF RIGHTS .......................................................... 1046 F. THE LEGAL IMPORT OF STATUTORY PREAMBLES IN THE COMMON LAW ................................................................................ 1048 G. THE PREAMBLE IN THE STATE RATIFICATION PROCESS ................ 1050 I. CORPUS LINGUISTICS OF EARLY AMERICAN ENGLISH IN THE PREAMBLE ...................................................................................... 1064 1. Domestic Tranquility ................................................................... 1068 2. Common Defence ........................................................................ 1069 3. General Welfare .......................................................................... 1073 4. Blessings of Liberty ..................................................................... 1077 J. EARLY SUPREME COURT DECISIONS CITING THE PREAMBLE ......... 1080 K. USE OF THE PREAMBLE BY POLITICAL ACTORS IN THE NINETEENTH CENTURY .................................................................. 1084 *. Robert K. Thomas University Professor of Law at the BYU J. Reuben Clark Law School and Distinguished Scholar in Residence at the University of Southern California. He recognizes his law assistants Andrew Hoffman, Morgan Hoffman, and Brenden Stuart for their excellent research, writing, and analytic insights. †. Law and Corpus Linguistics Fellow at the BYU J. Reuben Clark Law School. He recognizes his law assistant, Jacob Crump, for his contributions and support. 1021 1022 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 91:1021 1. The 1830 Debate on the Nature of the Constitution .................... 1084 2. Justice Joseph Story’s Commentaries on the Constitution (1833) ..................................................................... 1090 3. Former President John Quincy Adams and Others ..................... 1093 4. President Abraham Lincoln ......................................................... 1096 L. PREAMBLES IN STATE CONSTITUTIONS IN THE NINETEENTH CENTURY .................................................................. 1097 II. LIMITING JACOBSON’S STATEMENTS REGARDING THE PREAMBLE........................................................................................ 1100 A. FACTS AND ARGUMENTS IN JACOBSON .......................................... 1101 B. THE OPINION OF THE UNITED STATES SUPREME COURT ............... 1106 C. JUDICIAL OPTIONS FOR LIMITING JACOBSON’S STATEMENTS ABOUT THE PREAMBLE ................................................................... 1111 III. THE PREAMBLE IN THE TWENTIETH CENTURY .................. 1116 A. JACOBSON IN THE FEDERAL COURTS .............................................. 1116 B. LEGAL SCHOLARSHIP AND THE PREAMBLE .................................... 1121 C. PREAMBLES IN COMPARATIVE CONSTITUTIONAL LAW ................. 1126 1. South Africa ................................................................................ 1128 2. Germany ...................................................................................... 1129 3. India ............................................................................................. 1130 IV. TAKING THE PREAMBLE MORE SERIOUSLY ........................ 1132 A. LEGAL ROLES OF THE PREAMBLE IN CONSTITUTIONAL LAW ........ 1132 B. RESPONDING TO OBJECTIONS AGAINST LEGAL ROLES FOR THE PREAMBLE ...................................................................................... 1135 INTRODUCTION This Article argues that the Preamble to the Constitution of the United States of America deserves a primary place in constitutional law, in federal judicial decision-making, and in the nation’s civic discourse. The Preamble does more than set forth general, vague aspirations. It epitomizes the particular purposes behind the adoption of the Constitution that were desperately needed to repair and replace the faltering Articles of Confederation. The Preamble’s words were specifically and methodically chosen, both in the Preamble itself and often within the body of the Constitution. Based on their prompt affirmative vote, all members of the Constitutional Convention, which drafted the version of the Constitution that was submitted to the thirteen states for ratification, readily embraced the Preamble.1 Some delegates stated explicitly that it should be used as the key 1. See infra text accompanying note 46. 2018] RECOVERING OUR FORGOTTEN PREAMBLE 1023 to interpreting the Constitution, its meanings, intentions, purposes, and limitations.2 Indeed, it is doubtful that the Constitution would have been ratified without the text of the Preamble prominently standing at the top of the proposed document, and the Preamble occupied a dominant and valuable position at the head of constitutional analysis throughout the nineteenth century.3 In 1905, however, the United States Supreme Court decided the case of Jacobson v. Massachusetts.4 This case has been rarely discussed at any length and is only cited summarily.5 Perhaps somewhat unwittingly, the Court used language that has been understood to relegate the Preamble to a minor, insubstantial role: “Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.”6 The Court then went on summarily to treat the Preamble as irrelevant to the case. As will be demonstrated here, the Court’s unnecessarily broad language should be seen as dicta or should otherwise be narrowed or recalibrated. Although in some senses the Preamble may not be a “source of any substantive power” conferred upon the federal government by the people of the United States, this does not mean that the Preamble does not serve any legal functions, as has been consequently generally thought. Instead, the Preamble is a collective source of unifying objectives for the operation of the American democratic republic. It is a formative statement of guiding principles to be used in interpreting the meaning of the words and structures found in the body of the Constitution. It is a body of authorizing statements of purpose that regulate the reasons behind the organic operations of the federal government. And it constitutes a selected list of limits that set boundaries beyond which the federal government is not authorized to go. The 1905 assertion by the Supreme Court and its application in Jacobson was based on little, if any, substantive research, briefing, discussion, argument, or consideration. Moreover, this opening point in the Jacobson opinion was not material to the holding of the case. Consequently, this dicta should be clarified or otherwise revised. Jacobson’s dicta has gone down in subsequent judicial history and 2. See, e.g., James Monroe, Observations on the Federal Government, in 1 THE WRITINGS OF JAMES MONROE 349, 356 (Stanislaus Murray Hamilton ed., 1898). 3. See infra Section I.G. 4. Jacobson v. Massachusetts, 197 U.S. 11 (1905). 5. See infra notes 445–75 and accompanying text (discussing Jacobson’s effects). 6. Jacobson, 197 U.S. at 22 (emphasis added). 1024 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 91:1021 political thought as a controlling dismissal of the idea that the Preamble to the Constitution of the United States has much if any legal power or effect,7 and it has most likely contributed to the popular idea that the Preamble has little or no legal value or judicial usefulness. As a result, the Preamble has been largely forgotten, and developments during the intervening century of American constitutional law and politics since Jacobson have left constitutional law in the United States in an odd position of unnecessary weakness, lacking purposeful guidance. The Preamble is rarely mentioned in federal court opinions, in constitutional law treatises, or in leading law school constitutional textbooks. Increasingly, the Preamble is taught or memorized less often in primary or secondary school curricula. At a time when constitutional courts could use principled guidance more than ever before in drawing upon the fundamental purposes that give American constitutional jurisprudence its unifying coherence and authority, it is unfortunate that the Preamble’s primary written articulation of those leading civic values and defining governmental purposes goes almost entirely unmentioned. In order to lay a foundation for assessing Jacobson’s unsupported claim that the Preamble had “never been regarded as the source of any substantive power” and also to expand Jacobson’s glancing reference to Justice Joseph Story’s 1833 Commentary on the Constitution, Part I of this study begins at the inception of the American Republic and examines the legal and textual history of the Preamble from the founding era of the United States
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