The Role of the Preamble: Evidence from the Constitutional Convention and the Ratification Debates

This Article explores the role of the Preamble in constitutional interpretation by looking at how it was perceived at the founding. It does this in three ways. First, it explores how preambles were used in eighteenth-century America. At the time, preambles were almost universally understood to be key to interpreting the laws and constitutions they preceded.

This shared understanding forms the backdrop against which the Preamble was received by the founding generation. Second, it looks at the records of the Constitutional Convention for evidence of what role the drafters expected the Preamble to serve. Unfortunately, the records of the Convention shed little light on the drafting of the Preamble or its intended role. Finally, it looks at the public reception of the Constitution after it was published.

In the period between the release of its text in September 1787 and the end of the ratification debates in early 1790, the Constitution was debated in letters, pamphlets, newspapers, and at the various state conventions. These public debates shed light on how the founding generation viewed the Preamble. It was virtually universally recognized during the ratification debates that the Preamble listed the goals of the new government. There was also discussion of the role of the Preamble in constitutional interpretation.

There were two main camps within that debate. Most Federalists and Anti-Federalists took the position that the Preamble was a direct grant of power and that Congress had the legislative authority to achieve the goals listed in the Preamble. The minority position was that the Preamble would be treated like the preambles of other laws. This camp expected the Constitution to be interpreted to achieve the goals listed in the Preamble but did not consider it a direct grant of power.