The Preamble is the Least Important Part of the Constitution

By: Mike Maharrey

Most people are familiar with the Constitution’s preamble. A lot of people were required to memorize it in school. But while the preamble is arguably the best-known part of the Constitution, it is the least important.

Like so many other parts of the constitution, many people today believe that the preamble authorizes all kinds of federal power it never authorized in the first place.

For all of its poetic beauty and the sweeping principles it highlights, the Constitution’s preamble doesn’t actually do anything. You could cut the preamble completely out of the Constitution and it wouldn’t change the makeup or operation of the federal government one iota. That’s because a preamble doesn’t grant, delegate or restrict any government power.

In a legal document, a preamble does not carry the force of law. Black’s Law Dictionary describes a preamble this way.

“A clause at the beginning of a constitution or statute explanatory of the reasons for its enactment and the objects sought to be accomplished.”

While they do not confer any power or carry legal force, preambles do serve a purpose. They act as “a key to open the mind of the makers.” In other words, the preamble is not a source of substantive rules, but a statement of assumptions and purposes that sheds light on the main body of the document.

In simplest terms, the preambles serve as a guide on how to read a constitution or a statute. They identify the parties to the legal document, recite crucial facts related to the document and explain its purpose. The Constitution’s preamble serves all three of these purposes.

While the preamble reveals the “why” of the Constitution — “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” — it does not tell us how the new governmental structure will accomplish these goals. And again, I can’t emphasize this enough – while the preamble outlines the broad objectives of the federal government, it does not confer any authority to the government at all.

The structure of the government and the delegation of powers follow in the various articles of the Constitution. For instance, Article 1 Sec. 8 assigns specific enumerated powers to Congress. Article II delegates specific powers to the president. Article III establishes the authority of the judiciary. Without the delegation of powers that follow, the preamble is nothing but a poetic list of objectives with no mechanism to carry them into effect.

Many Americans don’t understand this. They believe the preamble empowers the federal government to take any action conceivable to achieve the Constitution’s stated objectives. As a result, they point to it to justify all kinds of unconstitutional federal actions. They believe that the federal government can do anything and everything to “provide for the common defense,” to “promote the general welfare,” or to “secure the blessings of liberty.”

Conniving politicians take advantage of this ignorance.

In fact, politicians began abusing the words of the preamble to justify federal actions almost before the ink was dry on the Constitution. Defenders of the Alien and Sedition Acts appealed to the preamble, claiming it supported federal laws that criminalized criticism of the government, ignored due process, and assumed power over immigration that was not delegated. James Madison dispensed with their arguments in the Report of 1800.

“They will waste but little time on the attempt to cover the act by the preamble to the constitution; it being contrary to every acknowledged rule of construction, to set up this part of an instrument, in opposition to the plain meaning, expressed in the body of the instrument. A preamble usually contains the general motives or reasons, for the particular regulations or measures which follow it; and is always understood to be explained and limited by them. In the present instance, a contrary interpretation would have the inadmissible effect, of rendering nugatory or improper, every part of the constitution which succeeds the preamble.” [Emphasis added]

The preamble is like the introduction to a book. It gives you a general idea as to what the book is about. But you would never write a book report just by reading the introduction – that is if you care about getting a decent grade.

Anybody trying to justify this or that federal action through the words of the preamble almost certainly hopes to expand government power beyond its constitutional bounds. The preamble tells us a little, but it doesn’t reveal a lot. People need to keep those well-known words in their proper context.