Thoughts About Constitution Day
Saturday was Constitution Day. It is the day in the year when we should pause to consider the wondrous document which established the first government created to derive its powers from the consent of the governed.
One part of the Constitution that is often overlooked, especially it seems when the Supreme Court is deciding an issue requiring interpretation of what the Constitution requires and does not permit within our laws, is the Preamble to the Constitution. In case you don’t have a copy of the Constitution handy, or have forgotten what you learned in elementary school, here’s what the Preamble says:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic
Tranquility, provide for the common defence, 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.”
What seems to be controversial about the Preamble is its relevance to making valid laws and the obligations of government under the Constitution. A statement on a government website (uscourts.gov) indicates while the Preamble clearly states the purposes of the Constitution, and serves as an introduction to the highest law of the land, that it is NOT the law. This is not surprising, since neither the articles nor amendments in the Constitution are law, but must be implemented into law by acts of Congress. But it would seem this purpose statement should be considered as governing the direction and outcomes of the laws.
Specifically, shouldn’t laws implementing Constitutional articles and amendments be required to be consistent with the purposes of the Constitution as stated in the Preamble”? Consider these points of language in the Preamble:
1. “… in Order to …”. These 3 words are pretty important, and are the most overlooked part of the Preamble. In the context of the Preamble, what does “in order to” mean? Doesn’t this mean that the statements that follow are the stated purposes for the entire Constitution; that is, the outcomes the Constitution and the government it establishes are intended to achieve? And if these statements are indeed the purpose for the Constitution, doesn’t that seem to be more than just an introduction to the highest law of the land? Doesn’t it follow logically that the application of the Constitutional articles and amendments in making laws should be consistent with and achieve the purposes stated in the Preamble?
Further, doesn’t it also follow logically that if certain laws that have been judged to be Constitutional, are not consistent with or actually violate or undermine the purposes stated in the Preamble, that these laws should be changed or overturned, so that all laws implemented under the Constitution are consistent with and don’t undermine the stated purposes of the Constitution itself?
2. “…insure domestic Tranquility, …”. What is the state of our domestic tranquility today? Are we doing a good job of making laws under the Constitution that are insuring tranquility in our society today? What laws might be contributing to undermining domestic tranquility that could and should be changed to be consistent with the purpose of the Constitution? Are changes such as the increasing levels of violent crime, hate crimes, or mass shootings an indication that we are falling well short as a government in “insuring domestic Tranquility”.
3. “… promote the general Welfare …”. What does the purpose under the Preamble, as part of the Constitution, require the government established by the Constitution to do to “promote the general Welfare”? Are changes such as rising homelessness an indication that we are not fulfilling that requirement? Is a high level of poverty, or increasing infant mortality, or decreasing levels of educational achievement, an indication that we are falling well short as a government in “promoting the general Welfare”?
4. “… and secure the Blessings of Liberty to ourselves …”. What does it mean to enjoy “the blessings of liberty”? What laws under the Constitution represent our rights to liberty? Can these rights ever be limited? Aren’t there aspects of personal liberty that would undermine domestic tranquility or the general welfare that if not limited, would compromise or interfere with the rights or liberties of others in our society or community? If this were not true, free speech would never be limited by laws regulating speech if such speech damages another person (such as defamation, fraud, hate, obscenity, incitement to violence, threatening of violence, etc.).
We recently had a Supreme Court decision that stated that a right to privacy did not exist under the Constitution because it was not specifically stated as a right in the Constitution. But the Ninth Amendment in the Bill of Rights states “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
This would seem to indicate that our rights under the “blessings of liberty” are expressly NOT limited to those rights explicitly stated in the Constitution. Under this logic, do the people enjoy the “blessings of liberty” if they do not have a right to privacy in their personal lives to make choices and take actions that do not undermine either “domestic tranquility” or the “general welfare”? Isn’t the right to privacy an essential element of personal liberty that is “inseparable” from liberty itself, and is thus clearly a right “retained by the people” under the Ninth Amendment?
If the Constitution is an essential element of our national unity, in that it is something that all citizens agree should guide the direction of our laws and the outcomes they are designed to achieve, then shouldn’t we look to the purposes of the Preamble more frequently to resolve the fractious differences in the interpretations of other parts of the Constitution? After all, the first purpose of the Constitution as stated in the Preamble is to “form a more perfect union”. If we keep this and the other purposes of the Preamble in front of us as we develop laws, policies and programs, perhaps the level of divisiveness and dysfunction in governing that we experience today might well be minimized, if not averted.