The Court has read the preamble as bearing witness to the fact that the Constitution emanated from the people and was not the act of sovereign and independent States, McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403 (1819) Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 471 (1793); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 324 (1816), and that it was made for, and is binding only in, the United States of America. Downes v. Bidwell, 182 U.S. 244, 251 (1901); In re Ross, 140 U.S. 453, 464 (1891).
Who made it? “We, the people of the United States.” But who were they? The associated inhabitants of each state, or the unassociated inhabitants of all the states. This question is an exposition, either of the ignorance or the design of construction. If there is no difficulty in answering it, construction ought to be laughed at for playing the fool; but if it gives the wrong answer, as supposing it to furnish contrary inference to the right one, it ought to be suspected of playing the knave. At least an attempt to construe away a fact, known to everybody, is a very fine specimen of its character when aiming at an accession of power. It has been imagined, that by considering the union as an act of the people, in their natural, and not in their political associated capacity, some aspect of consolidation might be shed over the country, and that the federal government might thereby acquire more power. But I cannot discern that the construction of the constitution will be affected in the smallest degree, by deducing it from either source, provided a sound authority is allowed to the source selected. Every stipulation, sentence, word and letter; and every donation, reservation, division and restriction, will be exactly the same, whichever is preferred.
A man, having two titles, may distinguish himself by which he pleases, in making a contract; and whichever he uses, he remains himself. So the people having two titles or capacities, one arising from an existing association, the other from the natural right of self-government, may enter into a compact under either, but are themselves still; and their acts are equally obligatory, whichever they may select.
Politicians may therefore indulge their taste in deducing the constitution of the union from either, but whichever they may fancy, no sound ground with thence result for their differing in the construction of it.
Nevertheless, to take away the pretext, however unsubstantial, for a different construction of the constitution, on account of the capacity or title which the people acted in its establishment, it is material to ascertain the meaning of the phrase “we the people of the United States;” towards which, let us run over most of the state constitutions.
New Hampshire. “The people of this state have the sole and exclusive right of governing themselves as a free, sovereign and independent state. Every subject in this state. In the government of this state. The people inhabiting the territory formerly called the province of New Hampshire, do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign and independent body politick or state. That the state may be equally represented. I do swear that I will bear faith and true allegiance to the state of New Hampshire.”
Massachusetts. “The body politick is formed by voluntary association of individuals. The people of this commonwealth have the sole right of governing themselves as a free, sovereign and independent state. The people do hereby mutually agree with each other, to form themselves into a free, sovereign and independent body politick or state.”
New York. “This convention, in the name and by authority of the good people of this state. The legislature of this state. No members of this state shall be disenfranchised. Delegates to represent this state in the general congress of the United States. Be it enacted by the people of the state.” Pennsylvania. “We the people of the commonwealth of Pennsylvania ordain. The legislature of a free state. All government originates from the people and is founded in compact only.” [***six states omitted***]
South Carolina. “The legislative authority of this state. The several election districts of this state shall elect. The style of process shall be “The state of South Carolina, and conclude against the peace and dignity of the state.” I swear to preserve the constitution of this state and of the United States.”
Georgia. “Members of the legislature shall swear to promote the good of the state, to bear allegiance to the same, and to observe the constitution. To make laws necessary for the good of the state. Citizens and inhabitants of this state.”
Vermont. “The people are the sole source of power. They have the exclusive right of internal government. All officers of government are their servants. Legislative and executive business of this state. The people have a right to exact from their legislators and magistrates the good government of the state. The legislature of a free and sovereign state. Shall be entitled to all the privileges of a freeman of this state. Every officer shall swear to be faithful to the state of Vermont, and to do nothing injurious to the constitution or government thereof.”
Without further quotations, let us demonstrate the force of these, extracted from a majority of the state constitutions, to fix the meaning of the term “state” according to the public judgment, by substituting the word “government” for it. They would read as follows.”
“The people of this government have the sole and exclusive right of governing themselves as a free, sovereign and independent government.”
“In the government of this government.”
“That the government may be equally represented.”
“The people of this government ought to have the sole and exclusive right of regulating the internal government thereof.”
“The legislature of this government.”
“I will be faithful and bear true allegiance to the government.”
“The several election districts in this government shall elect.”
“Members of the legislature shall swear to promote the good of the government and to make laws for the good of the government.”
“Citizens and inhabitants of this government.”
“The people have a right to exact from their legislators and magistrates the good government of the government.”
“Commissions shall be in the name of the freeman of the government.”
It would be an incivility to the reader, to subjoin to these quotations, many arguments, to prove, that the term “state” is not in any one instance used in reference to all the people of the United States, either as composing a single state, or as being about to compose a single state.
Used geographically, it refers to state territory; used politically, it refers to the inhabitants of this territory, united by mutual consent into a civil society. The sovereignty of this association, the allegiance due to it, and its right to internal government, are all positively asserted.
The terms “state and government” far from being synonimous [sic], are used to convey different ideas; and the latter is never recognised [sic] as possessing any species of sovereignty.
It next behooves us to consider whether the term “states” has changed its meaning, by transplanting from its original nursery, into the constitution of the United States; and is there used to designate all the inhabitants of the United States, as constituting one great state; or whether it is recognised [sic] in the same sense in which it had been previously used by most or all the state constitutions.
The plural “states” rejects the idea, that the people of all the states considered themselves as one state. The word “united” is an averment of pre-existing social compacts, called states; and these consisted of the people of each separate state. It admits the existence of political societies able to contract with each other, and who had previously contracted. And the words “more perfect union” far from implying that the old parties to the old union were superseded by new parties, evidently mean, that these same old parties were about to amend their old union.
But the parties, though recognised [sic] as being the same, were not strictly so. The authority of the people of each state is resorted to in the last union, in preference to that of the government of each state, by which the old confederation was formed. This circumstance by no means weakens the force of the last observation, because the recognition of existing political parties able to contract, remains the same.
The states, in refering to the old union, only admit themselves to have been bound by their governments, as they possessed the right of making treaties. But as the state governments were the parties to the first confederation, and as such, had a mutual right to destroy that treaty, this danger suggests another reason for the style and principles of the new union. Among its improvements, that by which it is chiefly made “more perfect,” was the substitution of the authority of “the people of the United States” for that of the governments of the United States; not with an intention of excluding from the new union the idea of a compact between the states, but of placing that compact upon better ground, than that upon which it previously rested.
The term “union” has never been applied to describe a government, established by the consent of individuals; nor do any of our state constitutions use it in that sense. They speak indeed of individuals “uniting” to form a government, not to form a union; and I do not recollect that a single compact between individuals for the establishment of a government, has ever been called a union; though a multitude of cases exist, in which that name has been given to agreements between independent states. If therefore this term comprised the whole evidence, to prove that our union was the act of distinct bodies politick, composed of the people within different geographical boundaries, and not of a number of people, encircled by one line, without any such discrimination, it would be sufficient.
But the constitution itself furnishes the plainest correspondent evidence, in its origin, establishment and terms. The members of the convention which formed it, were chosen by states, and voted by states, without any regard to the number of people in each state. It was adopted by thirteen votes, without respecting the same principle. Now what was represented by these voters; the territory of each state, or the people of each state? The terms “United States” must refer to one or the other.
If to the former, then the territories of each state entered into a compact “to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” The posterity of territories.
If to the latter, it was the people of each state, who by compact in their political capacity, by giving one vote each, formed the union.
The concords with this opinion present themselves at every step, throughout the compact.
The house of representatives are to be chosen by the people of the several states, not by the people comprised within the territories of all. The right of choice is confined to the electors of the most numerous branch of the state legislatures. Thus the right of suffrage is placed upon different grounds in different states.
Had the constitution of the United States been the act of all the people inhabiting the territory of the United States, this right would have been made uniform; but being the act of the people of each state, in their existing political capacity, the right of suffrage of course remained as it had been settled by each in forming its society.
Each state may elect these representatives by a general ticket, as some have done; and however they may have districted themselves by their own act for their own reasons, the recognizance of state individuality by the constitution is a strong, as if they had not done so. The modes of choosing both the president and senate, coincide also with the opinion, that the constitution considered the union as the act of bodies politick called states; and not as the act of a consolidated nature; and it seems to have settled its own construction, by providing in the case of no election of a president by electors, that he shall be chosen by the house of representatives, “The votes to be taken by states, the representation from each state having one vote.”
As the political departments of the federal government, legislative and executive, emanated from the societies called states, so they are made dependant upon them, in the mode prescribed for amending the constitution of the union; because the authors had the right of altering their own work. Had this constitution originated from, or been made by the people inhabiting the territories of the whole union, its amendment would have remained to them, as the amendment of the state constitutions belongs to the people of a state. But as such a body of associated people, did not exist, the amendment of the union is left in the hands of the existing bodies politick, to which, as its authors, it obviously belonged. No majority in congress can either call a convention, or amend the constitution; but the legislatures of two-thirds of the states may compel congress to call one, and those of three-fourths, may amend it.
Thus a supremacy of the states, not only over congress, but over the whole constitution, is twice acknowledged; first, by their power over the legislative and executive departments instituted for executing the union; and secondly, by their power over the union itself.
I cannot conceive that the constitution could have contained any thing more hostile to the doctrine “that the sovereignty or supremacy over the government of the union, rested in the people of the United States, not in their political, but natural capacity.”
It clearly discloses an opinion, that there were no such people, politically speaking; nor can I discern a vestige of the people inhabiting the territories of the United States, having ever formed themselves, or attempted to form themselves, into any political society or civil government. By this new doctrine, however, the checks provided to control the powers of the government of the union are ingeniously evaded.
It asserts, that the government of the union is responsible to the sovereignty of the people residing throughout the union, and not to the sovereignty of the people residing in each state. Now as an effective sovereignty of the people can only result from their having constituted themselves into a civil society, and the first people having never done so, an acknowledgment of a sovereignty which does not exist, only annuls that which does; and escapes altogether from any species of loyalty to this superior authority. It brings us back to the old ground of tacit compact between governments [***] John Taylor, Constitutions Vindicated (Richmond: Printed by Shepperd & Bullard, 1820), pp. 39-45.
June 25-Edmund Randolph, “A preamble seems proper. Not for the purpose of designating the ends of government and human polities - This (business, if not fitter for the schools, is at least sufficiently executed) display of theory, howsoever proper in the first formation of state governments, (seems) is unfit here; since we are not working on the natural rights of men not yet gathered into society, but upon those rights, modified by society, and (supporting) interwoven with what we call (states) the rights of states - . . .” Max Farrand, rev. ed., The Records of the Federal Convention of 1787 (Yale University Press, 1937), vol. 4, p. 38.
From Carl Van Doren:
The change from “We the people of the States” to “We, the People of the United States” did not have for the delegates who noted it when it was read, quite the implications which are now sometimes found in it. When the earlier version had been adopted it was on the assumption that all the states of the Confederation would have to accept the new government before it could be established. They were therefore named in the Preamble.
But since it had been agreed by the Convention that the ratification by nine state would be sufficient, and that as soon as so many ratified, the Constitution would be put into effect, it was no longer possible to name the constituent states in the Preamble, for the reason that nobody could know which nine of them would first ratify it and so, at the outset, make up the United States. The change was primarily in the interests of accuracy. But what had been done for the sake of accuracy had the effect of making it appear that the Constitution was by and for the united people, not by and for the confederated states.
In a sense, the Constitution went back rather to the Declaration of Independence than to the Articles of Confederation. The Articles nowhere referred to the people of the United States but always to the “United States in Congress assembled.” The Declaration had spoken of “one people” and “our people” and had acted “by the Authority of the good people of these Colonies.” p. 161.
Before it was taken up again for consideration, several interesting remarks were made in the house about the sovereignty of the states. King of Massachusetts said that the terms “states,” “sovereignty,” “national,” “federal” had been used “inaccurately & delusively”——as indeed they had.
He did not point out that the delegates repeatedly said “federal” when they meant “confederate,” and “national” when they meant only “federal.” pp. 94-95. Carl Van Doren, The Great Rehearsal: The story of the making and ratifying of the Constitution of the United States (Viking Press,1948).
Re-read MADISON, FEDERALIST No. 39, but replace the "federal" with "confederate" and "national" with "federal"...it reads better.
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“But a preamble is not a part of an act, in the sense that its language controls that used in the body of the act.” Sutherland v. De Leon, 1 Tex. 250, 303, 46 Am. Dec. 100. 39 Tex Jur (1936), Statutes, § 23, p. 48.
Preamble.
The preamble usually contains the motives and inducements to the making of the act, and resort to the preamble may therefore be useful in ascertaining the cause which led to the passage of the act or the mischiefs intended to be remedied thereby. It may be resorted to, to aid in the construction of the enacting clause, when any ambiguity exists, and is especially helpful when the ambiguity is not simply that arising from the meaning of particular words, but such as may arise in respect to the general scope and meaning of a statute. As sometimes expressed, it is the key to open the mind of the makers of the law.
The preamble is, however, not an essential part of the act, and cannot enlarge or confer powers, nor control the words of the act unless they are doubtful or ambiguous.
Hence it has been held that the necessity of resorting to it in order to ascertain the true intent and meaning of the legislature is fatal to any claim which by ordinary rules of interpretation can be sustained only by clear and unambiguous language. It has been stated by some courts as the general rule that if there is a broader proposition expressed in the act than is suggested in the preamble, the body or enacting part of the law will prevail over the preamble. But if the body of the act can be given a construction that is consistent with the purpose as declared in the preamble, it will be so construed. 25 R.C.L., Statutes, § 266, pp. 1030-1031.
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“The next day, August 14, the debate on the first provision continued. Thomas Tucker of South Carolina wondered how you could amend a preamble. It would be like amending George Washington’s letter of transmittal to the president of Congress.
Thomas Sumter of South Carolina urged the Committee to pass over the preamble until they had gone through all the amendments. John Page of Virginia could not see the need for additional language.
After all, the preamble was not a part of the Constitution, but if it was, “the words, ‘We the people,’ had a neatness and simplicity, while its expression was the most forcible of any he had ever seen prefixed to any Constitution.” Taken from the debate of August 14, House Proceedings, pp. 424-50. Richard T. Burress, The Bill of Rights: James Madison’s Legacy (Stanford University, 1989), pp. 37-38.
Preamble as a Source of Substantive Power. “No power to enact any statute is derived from the preamble. The Constitution is the only source of power authorizing action by any branch [department] of the Federal Government.” The Constitution of the United States of America (Annotated), p. 77, USGPO (Washington: 1938). Cases cited: In re Ross, 140 U.S. 464 (1891); Dorr v. United States, 195 U.S. 140 (1904); Jacobson v. Massachusetts, 197 U.S. 22 (1905).
“We the people of the States of New Hampshire, Massachusetts, Rhode-Island, and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.” The Constitution as Reported by the Committee of Detail in Carl Van Doren’s, The Great Rehearsal: The Story of the Making and Ratifying of the Constitution of the United States (N.Y.: Viking Press, 1948), pp. 278-287. This constitution later went to the Committee of Style and arranged in such manner as the present CONSTITUTION for the United States of America now reads.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common Defense, 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.
Tuesday, August 7, 1787, In Convention: The Preamble to the U.S. Constitution. On this day, the Convention proceeded to take up the Report of the Committee of Detail, section by section. There was little occasion for debate over Article I, that “the stile of the Government shall be ‘The United States of America.’” The name “United States of America” was, of course, that which appeared in the Articles of Confederation, where it appeared as “the stile of this Confederacy.” In the final draft made by the committee of Style on September 12, this provision disappeared as a separate Article and was embodied in a new Preamble. [***]
The wording of the Preamble, though it was never discussed by the Convention, deserves some attention. Randolph’s first draft of a Constitution submitted to the Committee of Detail had opened with the following suggestion: “In the draught of a fundamental Constitution two things deserve attention. 1. To insert essential principles only, lest the operation of government should be clogged by rendering those provisions permanent and unalterable which ought to be accommodated to times and events. 2. to use simple and precise language, and general propositions, according to the example of the Constitution of the several States.”
Randolph had then proceeded to state his ideas of what a Preamble should contain: “A Preamble seems proper, not for the purpose of designating the ends of government and human politics. This display, however proper in the first formation of State Governments, is unfit here; since we are not working on the natural rights of men not yet gathered into society and interwoven with what we call the rights of States, nor yet is it proper for the purpose of mutually pledging the faith of the parties for the observance of the Articles. This may be done more solemnly at the close of the draft as in the Confederation.
But the object of our Preamble ought to be briefly, to declare that the present Federal Government is insufficient to the general happiness, that the conviction of this fact gave birth to this Convention, and that the only effectual mode which they can devise for curing this insufficiency is the establishment of supreme Legislative, Executive and Judiciary.
Let it be next declared that the following are the Constitution and fundamentals of Government for the United States.”
The Preamble as finally drafted by the Committee of Detail, was much simpler and shorter than Randolph proposed. It began, “We, the people of the States of New Hampshire, Massachusetts, Rhode Island”, etc., and ended, “do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity--.”1 This wording should be contrasted with the Articles of Confederation, which had begun with the words: “Articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts, Rhode Island”, etc.
When, at the close of the Convention, the Committee of Style appointed to prepare a final draft of the Constitution made its Report on September 12, it entirely changed the phraseology of the Preamble. The words, “We, the people of the States of New Hampshire”, etc., became, “We, the people of the United States.”
The final clause, “declare and establish the following Constitution for the Government of Ourselves and our Posterity”, became “do ordain and establish this Constitution for the United States of America.”
Between these two clauses, there was then inserted a statement of the purpose of the Constitution, taken from the first Resolution of Randolph’s Plan of May 29, as follows: “Resolved, that the Articles of Confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution, namely, ‘common defense, security of liberty, and general welfare’”,——which in turn had been taken from Article III of the Articles of Confederation averring the purpose of that “league of States” to be “for their common defense, the security of their liberties and their mutual and general welfare.”
In the Report of the Committee of Style of September 12, this part of the Preamble became: “in order to form a more perfect union, to establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”
In later years, an attempt was made to attribute great significance to the change made by the Committee of Style in substituting the phrase “We, the people of the United States”, for the phrase, “We, the people of the States of New Hampshire, Massachusetts, Rhode Island”, etc. But this change was not intended by the Convention to anything more than a matter of form.
As the phrase was originally drafted, reciting the people of each of the thirteen States separately by name, it was then intended by the Convention that this new Constitution, before it should become effective, must be ratified by all the thirteen States, and that the requirement of the Articles of Confederation for unanimity of States on any Amendment should be complied with, this new Constitution being regarded in the light of such an amendment.
But when, on August 31, the Convention decided that the new Government should go into operation upon ratification of the Constitution by nine of the thirteen States, such action made it necessary to eliminate from the Preamble the names of the specific States; for it could not be known, at the date of the signing of the Preamble and the rest of the Constitution by the delegates, just which of the thirteen States would ratify. Hence, the language, “We, the people of the United States”, was used, the meaning being, “We, the people of the States united”, i.e., the people of those States which would agree to unite, by ratifying the new Constitution. “No other intent was suggested or contemplated” by this change of language. Charles Warren, The Making of the Constitution (Little, Brown, and Company, 1928), pp. 391-396.
The articles of confederation formed an agreement “between the States of New Hampshire, Massachusetts, Rhode Island, . . .” and the rest of the thirteen. At one stage of the development of its report, the committee of detail tried in the preamble “We the People of and the States of New Hampshire, Massachusetts, Rhode Island,” etc., but later the “and” was dropped out. * * *
The simple fact remains that the committee of style cleverly avoided the difficulty before them by phrasing the preamble:——”We, the People of the United States.” Viewed in this light the preamble loses something of the importance often ascribed to it, and yet the opening words remains among the most significant in the constitution. pp. 190-191.
On Monday, the 17th, the convention met for the last time. The engrossed constitution was read and in order to disguise the fact that a few of the delegates present were unwilling to sign the document, Gouverneur Morris devised a form that would make the action appear to be unanimous: Done in Convention, by the unanimous consent of the States present the 17th of September . . . In Witness whereof we have hereunto subscribed our names.” Farrand (ed.), The Framing of the Constitution (Yale University Press, 1913), p. 192.
“Whether the constitution was made and adopted by the States, or by its people of the States, [is] a political question, [and] of no importance for any purpose of judicial investigation.” Hawkins v. Filkins, 24 Arkansas Reports 286 (1866).
“Who, then, are those persons of whom the United States as body politic consists, and who constitute its members? Clearly they must be either the States in their corporate capacity, i.e., artificial and legal persons, or citizens of all the States in their aggregate; and it is not difficult to see that they are the former. Indeed, the latter do not form a political unit for any purpose. The citizens of each State form the body politic of that State, and the States form the body politic of the United States. The latter, therefore, consisted at first of the original thirteen States, just as the Confederation did . . .” C. C. Langdell, The Status of Our New Territories, 12 Harv.L.Rev., No. 6, 365, 369 (1899).
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“The atmosphere of the Convention was, in fact, almost scandalously secular. Despite the social preeminence of the cloth in 1787, not a clergyman was listed among its fifty-five members; and when Franklin suggested that one be recruited to open the meetings with prayer, the proposal was shelved by his obviously embarrassed associates with almost comical celerity.” Edward S. Corwin, “The Constitution as Instrument and as Symbol*,” 30 The American Political Science Review, No. 6, 1071, 1073 (December, 1936). *A paper delivered at the Tercentenary Conference of Arts and Sciences at Harvard University, September, 1936
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