Original Post at Real Progressives
The Preamble to the Constitution of the United States of America
“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.”
We all are familiar with the opening three words of the US Constitution, “We the People.” It is from the preamble written to introduce the purpose of the Constitution. The body of the Constitution describes the structure of the government. The preamble describes the purpose. These are two discrete functions. All too often, the Supreme Court only examines if a law adheres to the structural description to qualify as Constitutional. Ignoring whether a law in question qualifies by its purpose as well weakens the Constitution itself.
Reading it, the intention of the preamble is clear: it is America’s mission statement. It stands separate from the details of the Constitution and establishes a set of standards for the United States. A guide for lawmakers and a standard for both executive and judicial actions. For example, the Patriot Act passed after 9/11 obviously provides for the common defense (sic), but it does not secure Liberty. Is that a direct violation of the preamble instructions enough to declare the law unconstitutional?
There is a majority on the Supreme Court who claim to be Originalists. They look at what the framers meant as the guideline to determine if a law is constitutional. The preamble’s wording makes clear the founders knew that conditions change. It is unlikely they believed that why they wrote each clause would decide future Constitutional decisions. The words they placed immediately after “We the people” nullify any idea that the document is to remain static. Instead, contemporary interpretations are anticipated.
“In Order to form a more perfect Union.” Go ahead, back up your eyes, and read it again. Before the US Constitution, the 13 colonies formed a Confederation in 1777, under a document called The Articles of Confederation. After the Revolution, there was unrest across the country because of shortcomings in the Article’s design. The central government was extremely weak, with the power to mint coins, but not to tax. The currency effectively remained worthless. All business transactions used local currencies issued by the states and banks. In the North, local militias were taking up arms against the individual states and the central government. In the South, slaves were escaping in the desire to reach a state that had little or no slavery. James Madison called for a convention to revise the Articles. They met in 1787 in Philadelphia. Instead of just fixing the broken Articles of Confederation, they created the present Constitution. The only reference to the document they intended to make better and ended up replacing was referenced as a “perfect union.” The wording was used to sell the Constitution. Even though the Articles were “perfect,” the new Constitution would be “more perfect.” A deliberate choice of an impossible phrase, but heavy with meaning.
Under the Articles of Confederation, the independent colonies fought a war against the most powerful military in the world and made a treaty with France to improve their chances of victory. And they won the war governed by the Articles and signed a peace treaty with England as well. There was justification in saying The Articles worked perfectly. But as a peacetime independent nation, its weaknesses became clear. The confederate union was in chaos before the convention began as events such as debts paid in worthless money, escaped slaves, the Whiskey Rebellion, and Shay’s Rebellion made the new nation economically unstable and internally without order. More perfection was the cure. The framers who met at the Convention faced the reality that what was perfect only 10 years prior was no longer perfect. That realization helped them recognize that, over time, circumstances change. They also made certain to embed change into the new constitution. They designed three ways to amend the document. That fact alone is a recognition that meanings and usefulness change. Further proof of this recognition is that in the first 20 years after the first 10 amendments passed; itself a recognition that the more perfect document will require updates to retain its more perfect status. They changed presidential elections and how senators are selected. On the tough issue of slavery, the framers inserted an end to the slave trade into the Constitution. A sign they recognized that slavery would not remain forever.
The people that sat and sweated during the summer of 1787 recognized that circumstances would change. The current Originalists on the Supreme Court don’t acknowledge that the Constitution’s clauses’ purpose changes as circumstances change, as indicated both in the preamble and the framers’ own actions. To account for change, they created the preamble as a directive of what laws are supposed to accomplish. The preamble defines the standard by which laws are written and judged. Instead of divining what the framers meant back when the US was predominately an agricultural nation. Or before communications even showed the possibility of happening instantaneously worldwide before medicine had fully elevated itself from the belief that all disease was carried in the blood and sickness cured by bloodletting. It was before anyone dreamed that a single weapon could wipe out dozens of lives in a mere moment. Originalists need to follow the intentions of the framers listed in the preamble in word and spirit. They need to acknowledge their responsibility is to make the union more perfect continually. They would make certain that there is justice for all, and that people should expect to have a comfortable life with little to fear. America should strive to be a nation safe from any enemies, but also provide and assure the welfare of all. Last, the US should do nothing that would jeopardize Liberty in the United States for Posterity.