Bork dabbled with—and rejected—“judicial activism” before founding modern originalism
The preamble to the United States Constitution is something that is widely employed within political and theoretical arguments but is virtually never relied upon in court cases interpreting the Constitution. Is this treatment correct under the Constitution’s original meaning?
The preamble provides that “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.”
This stirring language is well known by the public but has rarely been used in constitutional argument. Its main use is to support popular sovereignty (“We the People”) and to support the claim that the people of the nation rather than the states are sovereign (“We the People of the United States”). Some people challenge this practice, while others defend it. I defend something of a middle position.
There are three main positions one can have about the preamble:
- The preamble is a source of power for the national government. Under this view, Congress has the power to, for example, promote the general welfare and to insure domestic tranquility. The enumerated powers are thus supplemented by the preamble.
- The preamble is simply symbolic language that has no function. It is philosophical language that states the purpose of the Constitution, but it should not be used when interpreting the Constitution. This position seems in practice to be the one that the courts employ since they almost never refer to the preamble when interpreting the Constitution.
- The preamble has a significant, but limited function. It states the purposes of the Constitution and therefore should be used to resolve ambiguity in constitutional provisions, but not as an independent source of power.
In my view, this last position is the correct one. At the time of the Constitution, preambles to statutes were understood to have this function. They were not independent sources of power but could be employed to resolve ambiguity. They have the same function within the Constitution and should be employed in that manner.
My position suggests that Congress is limited to the enumerated powers. But that when we interpret those powers, we can use the preamble to discover the purposes of the Constitution and therefore to resolve ambiguities within the constitutional language by reference to those purposes.
Under this view, then, one might expect frequent reference to the preamble in constitutional interpretation. Yet, one rarely sees this, even in originalist writings. This might seem to be problematic, but there is a possible justification for this failure to reference the preamble. It is not often that the preamble will actually help resolve an interpretive uncertainty. For example, the purpose of promoting a more perfect union does not tell us how far towards union one ought to move. It is simply a more secure and greater union than the Articles of Confederation provided. Similarly, the term “general welfare” is often unhelpful, because it too requires interpretation to know what the general welfare is.
One can imagine situations where the preamble helps. For example, one might argue that state sovereign immunity would work an injustice to someone who is owed money by the state. Thus, Justice Wilson in Chisholm v. Georgia properly invoked the establish justice language when interpreting Article III in a case involving a contract claim against Georgia. So sometimes the preamble is applicable, even though it is rarely invoked.