(This article was originally published on realprogressivesusa.com)
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. These are two discrete functions and all too often, the Supreme Court neglects to examine if a law that qualifies as Constitutional when it adheres to the structural description also satisfies the purpose. In fact, the preamble has never been applied by the Supreme Court in any ruling, and has been mentioned very infrequently. Reading it, the intention of the preamble is pretty 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. For example, the Patriot Act passed after 9/11 obviously provides for the common defense (sic), but it does not secure Liberty. Is that 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. Their guideline for determining if a law is Constitutional is grounded in establishing what the framers meant when they wrote whatever clause or clauses gave Congress the authority to pass the law. The preamble makes it apparent that the founders were well aware that conditions would change over time. It is rather unlikely they believed why they wrote each clause would determine future Supreme Court decisions. The very words they chose to place immediately after “We the people”nullifies the idea that the document is intended to remain static, and closed to interpretation to fit the times.
“In Order to form a more perfect Union”. Go, ahead, back up your eyes and read it again. Prior to 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 due to shortcomings in the Article’s design. The central government was extremely weak, with the power to mint coins, but not to tax. US currency effectively remained worthless and all business transactions used local currencies issued by the states and banks. In the North there were local militias 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 in order to revise the Articles. They met in 1787 in Philadelphia. Instead of fixing what was broken, 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 self-declared independent colonies fought a war against the most powerful military in the world; they also made a treaty with France to improve their chances of victory. And, they won the war under the Articles and signed a peace treaty with England. There was justification in saying The Articles operated perfectly. But as a peacetime independent nation, it’s weaknesses became evident. Unpaid debts or debt paid in worthless money, escaped slaves, the Whiskey Rebellion and finally just prior to the convention Shay’s Rebellion, made it evident that the country was in chaos. More perfection was the necessary cure.
The framers who met in Convention faced the reality that what was perfect only 10 years prior was no longer perfect. With that realization, not only did they recognize that over time circumstances change, but they also made certain to embed change into the new Constitution. They wrote in three ways to amend the Constitution. That fact alone is a recognition that meanings and usefulness change over time. Further proof of this recognition is that in the first 20 years after the first 10 amendments were passed – itself a recognition that the more perfect document itself, could be made more perfect – there were multiple changes made to Presidential elections and how Senators are chosen. On the difficult issue of slavery, the framers inserted an end to the slave trade into the Constitution. An indication that they recognized that slavery was not going to remain forever.
The people that sat and sweated during the summer of 1787 recognized that circumstances would change. The Originalists on our current Supreme Court do not recognize the lesson, pointed out by the framers themselves in the preamble, that as circumstances change so does the purpose of individual clauses in the Constitution. To account for change they created the preamble as the standard by which laws are made and judged. Instead of attempting to divine what the framers meant back when the US was predominately an agricultural nation. Or before communications even indicated 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 could be cured by bloodletting, and before anyone dreamed that a single weapon could wipe out dozens of lives in a mere moment. If Originalists follow the declared intentions of the framers provided in the preamble, they would recognize that their responsibility is to continually make the union more perfect. They would make certain that there is justice for all, and 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 that the welfare of all be assured. Lastly, the US should do nothing that would jeopardize Liberty in the United States for Posterity. So, when anyone asks “what is a Progressive”? – Tell them it is the preamble to the US Constitution.