By Akhil Reed Amar and Douglas W. Kmiec
It is especially fitting that your copy of the Constitution originates with the National Constitution Center in Philadelphia. Signed in Independence Hall on September 17, 1787, the Constitution is a truly remarkable means to advance the premises of the American Republic stated eloquently in 1776 in the Declaration of Independence. A great Chief Justice once said, "the Declaration is the promise, the Constitution, its fulfillment," and nothing could be more true. To fairly apply the Constitution and its structure to contemporary problems, one must never travel very far from the "self-evident truths" that men and women are "created equal;" that unalienable human rights flow from the "Laws of Nature and Nature's God;" and that the purpose of any government, including the one established under the American Constitution, is "to secure these rights."
In the Constitution as originally drafted, our "life, liberty, and the pursuit of happiness" were secured in two essential, but structural ways: first, by the careful division and enumeration of power, and second, by the reservation of authority to the governmental entities closest to us-the States. As reflected below, the Declaration's triad of unalienable guarantees would later be made explicit by amendment in a "Bill of Rights" affirming among other matters that the federal government lacks power to abridge particularly sensitive matters of religion, speech, due process, and the capacity to own property and engage in related economic activity. The very important Fourteenth Amendment following the Civil War resolves to protect "privileges or immunities" and the equality of all persons under the law.
But before our "rights" were listed, the Constitution enumerated or allocated power among those that make policy judgment (the legislative), those that implement and propose new initiatives (the executive), and those that resolve dispute and render interpretation (the judicial). Aided by the best of ancient and modern philosophy, the Founders understood that tyranny can only be avoided if no one person or group comes to possess the power to make, enforce, and interpret the law. Even more insightfully, the powers separated by the Constitution are predisposed to remain separate. Political abuse is avoided because to a carefully limited degree, governmental power is "blended" or made overlapping. A foolish law enacted by Congress can be vetoed by the President, but an obstinate President can be overcome by a two-thirds majority of both Houses of Congress.
We are a nation of "dual sovereigns"-the federal government is given specific responsibilities to coin money, raise armies, and regulate interstate and foreign commerce, for example, but as Madison reflected, these powers are ". . .few and defined. Those which remain in the State governments are numerous and indefinite."
This vertical division of authority reflects the healthy variation and diversity of the American people. Coming from many lands, races, ethnicities, and perspectives, our dreams and aspirations can be differently stated. One single, uniform view is seldom enough for all of us, and "federalism"-or the reservation of power in the States-allows these different approaches to be tried with less imposition of view on others. The federal Constitution envisions unity where it is necessary as a people to speak with one voice-for example, where our national security or trade interests are jeopardized by a foreign power, but it allows countless voices to be heard on matters pertaining to the day-to-day general welfare. And lest it be overlooked, dividing power between federal and State governments also protects liberty by giving States an incentive to check federal abuses, and vice versa.
As important as the structural aspects of the Constitution are, when Americans are asked what the Constitution means to them, they will likely invoke some of the phrases and ideas inscribed in the celebrated Bill of Rights-freedom of speech and of the press, religious liberty, freedom from unreasonable searches, jury trials, and due process, to name a few. But as noted above, this Bill of Rights did not appear in the original Constitution that emerged from the 1787 Philadelphia Convention. The original document did not think these "rights" unimportant-far from it. Rather, as Hamilton wrote, "the Constitution is itself, in every rational sense, and to every useful purpose, a bill of rights." Nevertheless, skeptics wanted something
The federal Constitution envisions unity where it is necessary as a people to speak with one voice... but it allows countless voices to be heard on matters pertaining to the day-to-day general welfare.
more explicit. Americans may sometimes do business on a handshake, but more often than not, they believe that good governments, like good personal relationships, can also be assisted by "putting it in writing." Thus, soon after the Philadelphia Constitution went into effect in 1789, its friends composed what became the first ten amendments-America's "Bill of Rights" (though this phrase itself does not appear in the document). Two things about this "Bill" might surprise present-day Americans. First, these early amendments emphasized "States" rights and majority rights alongside those of the minority. The Bill limited the newly created federal government, but imposed no express restrictions on the States. Thus, the First Amendment barred Congress from creating a national church, but many States at the Founding openly promoted particular religious belief. The Second Amendment protected local militias (like the Minutemen who had fought at Lexington and Concord), and several other amendments protected local juries. No phrase appeared in more amendments than the phrase, "the people"-echoing the Preamble's famous opening words, "We the People," and reaffirming the Constitution's basic idea of popular sovereignty. This emphasis on localism and populism becomes less surprising when we remember that Americans had recently fought a War of Independence against a British government seen as distant, undemocratic and oppressive. Local communities had mobilized citizens against central tyranny, and in 1789 many Americans still feared central authority and linked liberty with local direction.
The second surprise is that the Bill of Rights played little role in courts or in the lives of ordinary Americans before the Civil War. All that began to change when yet another amendment-the Fourteenth Amendment-was ratified in 1868. That Amendment reaffirmed the freedoms of the Bill of Rights, and made most of these rights and privileges applicable against State and local governments. This new birth of freedom responded to the abuses of the proslavery State governments before the Civil War: in order to support the slave system, these governments had censored anti-slavery newspapers, repressed abolitionist preachers, conducted unreasonable searches, and abridged other fundamental rights. The Fourteenth Amendment crystallized a more national vision of freedom that at its core has come to give considerable latitude to individual citizens. The Revolutionary War had reflected suspicion of the federal or central government, but the Civil War era proved that States, too, needed watching. Thus, the national government pledged to protect the fundamental freedoms of individual "citizens" and "persons," even if they were in the minority against local majority rule.
The Fourteenth Amendment helped pave the way for vigorous judicial protection of the Bill of Rights. Whereas the original Bill operated only against federal officials, today's judges invoke the Bill-as redefined by the Fourteenth Amendment-far more often against local ordinances and State laws than against Congressional statutes. In addition, the Amendment chiseled into our Constitution a phrase close to the hearts of modern Americans: it promises "equal protection of the laws" to all. Perhaps ashamed of their complicity with slavery, the Philadelphia Framers and the early amenders had omitted all mention of the "equality" referenced in the Declaration of Independence. Today the concept of equality-for all persons, regardless of race, sex, or religion-animates everything in the Constitution. Ours is a system of equal justice under law.
The Bill of Rights is remarkably compact: the first ten amendments plus Section One of the Fourteenth Amendment are shorter than the introduction you have just read. Now would be a good time-any time would be a good time-to read or reread the Bill of Rights itself.
So, then, does the Constitution as amended really advance human good-our "pursuit of happiness?" Are we capable of being better citizens, workers and business owners, neighbors, and fathers and mothers because of it? Yes, a well-structured federal government of enumerated power and explicit rights invites every voice to be heard in the political process, secures investments and the jobs they yield, defends us from foreign and domestic threats to peace, and most of all, because of these refined limits of governmental power, leaves to each citizen a great expanse of freedom.
Of course, it is up to each of us to employ that freedom wisely. Madison and others in the founding generation knew, for example, that free speech permits both the search for truth and wisdom as well as falsehood and libel. Property can lend economic security to family and human flourishing, but it can also be abused to magnify environmental harms or deny just wages and working conditions. In the final consideration, the Founders understood that only a virtuous people can be free, and if the American constitutional story has thus far unfolded well-and we believe it has-it is because "we the people" have largely resolved to be so.
We believe a visit to the National Constitution Center, when it opens in two years, will give you a better appreciation of the Constitution's significance to our lives. We know greater familiarity with the provisions of our wonderful charter does also, and we hope you will have occasion to make use of your "Pocket Copy" often.
Akhil Amar is a professor of law at the Yale University Law School in New Haven, Connecticut. Douglas Kmiec is dean of Catholic University Law School. Professor Amar and Dean Kmiec served as NCC's 2000 – 2001 Senior Visiting Scholars and continue to serve as members of NCC's Distinguished Scholars Advisory Panel.
Grade:12, 11, 10, 9, 8, 7, 6, 5, 4, 3, 2, 1, K
Standards:1 - Culture, 2 - Time, Continuity, and Change, 6 - Power, Authority, and Governance, 10 - Civic Ideals and Practices
From Plato's Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy making. Through a qualitative analysis of the legal status of preambles in different common law and civil law countries, the article highlights a recent trend in comparative constitutional law: the growing use of preambles in constitutional adjudication and constitutional design. The article also explores the theory of preambles and their functions. It examines the legal status of the U.S. preamble and shows how the U.S. preamble remains the most neglected section in American constitutional theory. The article then presents a typology for determining the legal status of preambles: a symbolic preamble, an interpretive preamble, and a substantive preamble. While focusing on Macedonia, Israel, Australia, and the Treaty of Lisbon, the article discusses the sociological function of preambles in top-down and bottom-up constitutional designs.
The preamble to the United States Constitution has become a legend. The phrase “We the people of the United States” and the remaining forty-five words of the preamble are the most well-known part of the Constitution, and the section that has had the greatest effect on the constitutions of other countries. And yet, the preamble remains a neglected subject in the study of American constitutional theory and receives scant attention in the literature. Questions such as: what is a preamble to a constitution?; what role does it play in constitutional adjudication and constitutional design?; and why do states add a preamble to the constitution? have been seldom asked or answered.
This article highlights the legal and social functions of preambles. First, it discusses the growing use of preambles in constitutional interpretation. In many countries, the preamble has been used, increasingly, to constitutionalize unenumerated rights. A global survey of the function of preambles shows a growing trend toward its having greater binding force—either independently, as a substantive source of rights, or combined with other constitutional provisions, or as a guide for constitutional interpretation. The courts rely, more and more, on preambles as sources of law. While in some countries this development is not new and dates back several decades, in others it is a recent development. From a global perspective, the U.S. preamble, which generally does not enjoy binding legal status, remains the exception rather than the rule.
Second, the article discusses one of the interesting merits of a preamble: its integrative power. A preamble is the part of the constitution that best reflects the constitutional understandings of the framers, what Carl Schmitt calls the “fundamental political decisions.” Its terms, thus, have far-reaching social effects. Consequently, preambles recently have been added or amended in some countries either due to a popular demand (a bottom-up change) or because of a government-led constitutional design (a top-down change). The article illustrates the potential of a consensual preamble to unite, or a disputable preamble to divide, a people. It emphasizes the sociological reason why it is necessary to carefully consider what is written in the text of the preamble, in particular, in those cases in which the preamble is granted binding legal force.
Section 1 explains the concept of preamble based on qualitative research of the preambles in fifty common law and civil law countries. Section 2 traces the origins of the U.S. preamble and its legal status. Section 3 presents a typology of three legal functions of preambles: the ceremonial-symbolic, in which the preamble serves to consolidate national identity but lacks binding legal force; the interpretive, in which the preamble is granted a guiding role in statutory and constitutional interpretation; and the substantive, in which the preamble serves as an independent source for constitutional rights. Section 4 demonstrates the importance of consensual preambles, sketches the risks inherent in nonconsensual preambles, and describes the benefits and disadvantages in the process of designing a preamble. Focusing on Macedonia, Israel, Australia, and the Treaty of Lisbon, the article examines the social function of preambles in top-down and bottom-up designs and suggests some lessons for a future design of a preamble.
2. How to talk about preambles
What is a preamble to a constitution and how can it be classified? In formal terms, a preamble constitutes the introduction to the constitution and usually bears the formal heading “Preamble” or some alternative, equivalent title,1 while in other cases it appears without a heading. The formal classification provides a simple and technical identification of a preamble. Alongside a formal classification, it is possible to identify a preamble through its content. In substantive terms, a preamble does not require a specific location in the constitution but, rather, specific content.2 It presents the history behind the constitution's enactment, as well as the nation's core principles and values.3
Analysis of a nonrepresentative sample of fifty democratic countries revealed that most have included a formal preamble in their constitutions:4 thirty-seven countries have a preamble (74 percent)5 while thirteen countries do not (26 percent).6 Countries that do not have a formal preamble often include introductory articles that may be regarded, in substantive terms, as a preamble.7 A preamble is, thus, a common constitutional feature. Moreover, most of the countries that have adopted a constitution in recent years, particularly in Eastern and Central Europe, have included a preamble.
The content of preambles can be classified into five categories.
The Sovereign. Most preambles specify the source of sovereignty. In some cases, sovereign power rests with the people (“we the people of …”).8 This is a relatively neutral term with which most of the population can usually identify. Another phrase relates to the source of sovereignty as stemming from a particular nation (the “Lithuanian Nation,” the “Spanish Nation,” and the like). This terminology emphasizes a specific national group and is less neutral.9 Some preambles combine a reference to the people with a reference to representative bodies; others refer only to representative bodies; while others make no reference to a sovereign authority. In federations and unions, the preamble often identifies the constituent states—and their peoples—as the source of sovereignty.10
Historical Narratives. Preambles include, typically, historical narratives of a state, a nation, or a people, telling specific stories that are rooted in language, heritage, and tradition. These stories shape the common identity (“we”). The reference is often to past events that influenced the establishment of the state. The South African preamble, for example, declares that the people of South Africa “recognise the injustices of our past,” and “honour those who suffered for justice and freedom in our land.” The preamble to the Chinese Constitution notes that “China is one of the countries with the longest histories in the world” and details, at great length, Chinese history and the nation's achievements. The Turkish preamble mentions that the Turkish Constitution is established “in line with the concept of nationalism outlined and the reforms and principles” introduced by the republic's founder Atatürk. In Eastern and Central Europe—in countries such as Croatia, Estonia, Slovakia, Slovenia, and Ukraine—the preambles celebrate the nations’ struggles for independence and self-determination.
Supreme Goals. Preambles often outline a society's fundamental goals. These may be universal objectives, such as the advancement of justice, fraternity, and human rights; economic goals, such as nurturing a socialist agenda or advancing a free market economy; or others, such as maintaining the union.11 These goals tend to be abstract ideas, such as happiness or well-being. The preamble to the Constitution of Japan, for instance, is peace-loving (“never again shall we be visited with the horrors of war … desire peace for all time”), while the preambles to the Constitutions of the Philippines and of Turkey stress love.
National Identity. Preambles usually contain statements about the national creed. Understanding the constitutional faith of each country, and its constitutional philosophy, cannot be complete without reading its preamble. Frequently, preambles include an additional element about future aspirations and may include a commitment to resolve disputes by peaceful means, to abide by the principles of the UN Charter, or to further national aspirations as stated in a declaration of independence.12 These statements often refer to inalienable rights, such as liberty or human dignity.
God or Religion. A preamble may include references to God. Some preambles emphasize God's supremacy, such as the preambles to the Canadian Charter (“the supremacy of God”) or the Swiss Constitution (“in the Name of Almighty God”).13 Other preambles refer to a religion: the Greek preamble refers to the Holy Trinity;14 in the Irish preamble, the Holy Trinity is mentioned as “our final end” and a source of authority toward which all actions of “men and states must be referred.”15 Conversely, the preamble may emphasize the separation of state and religion or the state's secular character.16
While common characteristics can be identified, each preamble has its own distinguishing features. Preambles come in various lengths,17 harmonize with or contradict the body of the constitution, and may be enacted together with the body of the constitution as well as in a later constitutional moment.
3. The American preamble
One of the greatest contributions of the United States to the world is the U.S. Constitution, and, perhaps, the most influential section of the U.S. Constitution is its preamble. It is, therefore, particularly interesting to trace its origins and legal status. The current preamble is different from the original introduced in 1787 at the Philadelphia Convention. The original preamble did not include the famous phrase “We the people of the United States” but, rather, designated the states as the source of authority; also, it did not specify the Constitution's objectives. The original preamble stated, simply, that: “We the people of the States of New-Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.”18 The text was changed by the Committee of Style, whose members were William Samuel Johnson, Alexander Hamilton, Gouverneur Morris, James Madison, and Rufus King.19 However, there is no historical record of the drafting process of the preamble, or the reasons for the changes made by the Committee of Style.
The framers of the American Constitution were well aware of other forms of preambles. The Petition of Rights of 1628, the Habeas Corpus Act of 1679, the Bill of Rights of 1689, the Act of Settlement of 1701, the Articles of Confederation of 1777, and some state constitutions—all preceded the U.S. Constitution and set the pattern for the U.S. preamble. The question remains: Why was the preamble needed in the first place? During the Philadelphia Convention, Edmund Randolph argued for the inclusion of a preamble: “a Preamble seems proper,” he said, but “not for the purpose of designating the ends of government and human polities.”20 This form of preamble, which Randolph referred to as a “display of theory,” was not necessary in his view. A preamble “is unfit here; since we are not working on the natural rights of men not yet gathered into society, but upon those rights, modified by society, and interwoven with what we call the rights of states.”21 For Randolph, a preamble was essential as a statement of the reasons for accepting the Constitution: “the object of our preamble ought to be briefly to declare, that the present foederal government is insufficient to the general happiness [and] that the conviction of this fact gave birth to this convention.”22
The preamble refers to the people as the source of authority23 and outlines six lofty goals: “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.” Despite its central role in education and in the public debate, courts have rarely been inclined to rely upon the preamble only rarely. Empirical studies show that from 1825 to 1990, the sections of the preamble that refer to justice, general welfare, and liberty were independently mentioned by Supreme Court justices only twenty-four times, mostly in dissenting opinions (83.3 percent of all references), while only four justices (Black, Douglas, Burton, and Field) were collectively responsible for half of those references.24 Courts have rejected, repeatedly, the argument that constitutional rights or limitations can be inferred directly from the preamble. The classic case establishing its nonbinding nature was decided in 1905. In this case, a convicted defendant challenged the constitutionality of a statute adopted by the state of Massachusetts that, in his view, contradicted rights protected by the preamble. Rejecting this argument, Justice Harlan noted:
Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States, or on any of its Departments. Such powers embrace only those expressly granted in the body of the Constitution, and as such as may be implied from those so granted.25
Justice Harlan stripped the preamble of any legal force without providing any historical evidence or textual explanations. While he noted that individuals have no constitutional rights derived directly from the preamble, he neither stated, expressly, that the preamble has less significance than other constitutional provisions nor did he assert that it does not form a binding part of the Constitution. Yet, evidence suggests that the framers anticipated the role the preamble would play in constitutional interpretation.26 Alexander Hamilton even stated that the Bill of Rights was not necessary since the preamble was able to function as one.27 Joseph Story argued that the preamble “is a key to open[ing] the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished.”28 James Monroe , similarly, stated that the preamble is “the Key of the Constitution. Whenever federal power is exercised, contrary to the spirit breathed by this introduction, it will be unconstitutionally exercised and ought to be resisted.”29 These views, however, were not shared by everyone, and a dispute arose over the preamble's role. James Madison, for one, expressed his reservations about the preamble's power. “The general terms or phrases used in the introductory propositions,” he said, “were never meant to be inserted in their loose form in the text of the Constitution.”30 A debate started over whether and in what manner the Constitution's preamble should be used by the Court.31
Nevertheless, U.S. courts have invoked the preamble in constitutional interpretation. Although the references are inconsistent, rhetorical, and far from conferring independent constitutional rights, they still provide the preamble with some constitutional weight. Courts have used the term “We the people” to define the boundaries of the Constitution's applicability,32 hold the powers of the federal government,33 indicate that the people—and not the states—are the source of the federal government's power,34 challenge sovereign immunity,35 and define who is a citizen.36 Similarly, the phrase to “establish Justice” has been invoked to expand federal jurisdiction37 and to support invalidation of legal tender legislation.38 The phrase to “provide for the common defense” has likewise been used to broaden congressional power39 and uphold exclusion from citizenship.40 In addition to its interpretive role, the preamble exerts a meaningful, although indirect, influence of congressional decision making.41
In spite of these references, the U.S. preamble is not, by and large, a decisive factor in constitutional interpretation. Its relatively meager use in constitutional adjudication has been criticized. “It is regrettable that law professors rarely teach and that courts rarely cite the Preamble,” Sanford Levinson notes, as it is “the single most important part of the Constitution.”42 For Levinson, the preamble is “the equivalent of our creedal summary of America's civil religion.”43 For Mark Tushnet, the “thin” Constitution of the United States is anchored in the principles of the Declaration of Independence and the preamble.44 Milton Handler, Brian Leiter, and Carole Handler charge the courts with ignoring the preamble: “we can discern no reason why [its] rules of construction should not obtain in the constitutional context.”45 They mention that disregard of the preamble conflicts with the status of recital clauses of contracts, legislative declarations of purpose in statutes, and preambles to international treaties46—all of which do guide the court in judicial decision making.47 For them, the preamble ought to play a more significant role in constitutional decisions.48 Other scholars have argued that courts should accord the preamble legal force for the sake of future generations. In referring to Roe v. Wade, Raymond Marcin has claimed that the question of yet-to-be-born descendants requires a solution that finds its foundation in the preamble—the blessings of liberty for the people but also for posterity—which includes fetuses, as well.49
While the preamble is written in a manner that appeals to many, it remains difficult to persuade jurists of its superior legal status.50 Although Justice Harlan stripped the preamble of its legal force, its occasional use in constitutional adjudication indicates that while it is not an independent source of rights neither is it constitutionally irrelevant.51
4. The legal status of preambles
The preamble has several functions. To begin with, it has an educational purpose: it is one of the most significant sections of the constitution that is mentioned in educational and public arenas. Unlike the constitution—usually a very long document including complex provisions—the preamble is relatively short and is written in a more accessible language. Next, the preamble has an explanatory purpose: it serves to specify the reasons for the constitution's enactment, its raison d’être and eternal ideals. In addition, the preamble has a formative purpose: it constitutes a political resource for the consolidation of national identity and serves as a national “calling card.” The preamble has a legal purpose as well. This section sketches a three-part typology of preambles: a ceremonial preamble, an interpretive preamble, and a substantive preamble.52
4.1. Ceremonial-symbolic preamble
The concept of a ceremonial-symbolic preamble was first elaborated in Plato's Laws. The preamble, Plato asserted, is designed to convince the people why laws are morally good. In Plato's work, laws are intended to establish a self-controlled society; to that end, laws need to be virtuous. This virtue is established in the preamble—the soul of the law—which sets the tone for the people to freely comply with the law. It is a vehicle by means of which the legislator “sells” legislation to the people. As Plato asserted:53
[j]ust as a “free” doctor explains the patient's illness to him, and tries to make him understand the reasons for the measures to be prescribed, in order to gain his co-operation, so the legislator must explain and justify his laws. Hence every law must be headed by a preamble justifying its provisions; further, the preamble must be rhetorical in character: it must not only instruct, but persuade. Only if a man ignores the preambles, must the sanction of actual law be applied.
Plato's notion of a preamble is meant to justify the law. A good preamble would persuade the people to obey the law, not because of civil or criminal sanctions but because it is a good law. The purpose of the preamble is to mitigate the harshness of the law; a law without a persuasive preamble is a “dictatorial prescription.” Plato's preambles use abstract terms and invoke poetic ideals.54 However, they are not regarded as integral part of the law and do not create rights or have binding interpretative power.
The preamble of the U.S. Constitution is an example of Plato's concept of a preamble because it is persuasive, symbolic, and, generally, has no legal force. An opposite example of a non–legally binding preamble, which has no persuasive power, is the preamble to the Canadian Charter of Rights and Freedoms. The preamble declares that Canada “is founded upon principles that recognize the supremacy of God and the rule of law.” Courts have not granted the Canadian preamble legal force,55 and some scholars have opposed granting it any legal weight,56 inter alia because of the alleged contradiction between the supremacy of God and the rule of law and because the preamble contradicts some clauses of the Charter.57 Courts refer to the preamble as a dead letter;58 others, describe it as perfunctory, restricting the liberties embodied in the Charter and not intended for use even as an interpretative tool.59 Canada, thus, is an example of a state in which the judiciary dissociates itself from the preamble.60 One reason might be that the preamble is short and lacks significant usable details. Another reason might be that, unlike Plato's preamble the preamble to the Canadian Charter has no persuasive value. In particular, it does not offer a persuasive explanation for the unusual reference to the “supremacy of God.”61 Interestingly, when the legal status of the preamble to the Constitution Act of 1867 was discussed, the Canadian Supreme Court reached a different conclusion. In order to determine whether the secession of Quebec was constitutionally valid, the Court analyzed that preamble's content to determine the fundamental values underlying the Canadian Constitution.62
4.2. Interpretive preamble
The interpretive role of preambles is rooted in the common law tradition. Edward Coke asserted that preambles to an act of parliament are a “good mean to find out the meaning of the statute” and “the key to open understanding thereof”;63 they are “the key to the statute and the key to the makers.”64 William Blackstone referred to preambles as intended “to help the construction of an act of parliament.”65 Blackstone noted that whenever the statute is dubious, “the proem, or preamble, is often called in to help the construction of an act of parliament.”66 However, in a case of conflict between the preamble and the body of the act, the body of the act prevails.67 This is still considered good law in common law states.68 Some have a specific clause indicating the significant role of preambles in statutory interpretation.69
This common law rule remains effective on the constitutional level in states in which the constitution's preamble embodies a guiding framework for constitutional interpretation. When several interpretations exist, courts prefer the option consonant with the preamble. For example, section 39 to the South African Constitution declares that, when interpreting the Bill of Rights, the courts “must promote the values that underlie an open and democratic society based on human dignity, equality and freedom”—words that appear in the preamble.70 South Africa's Constitutional Court has confirmed the preamble's status as a guide when interpreting the Bill of Rights. While the preamble is not an independent source of rights, it is an inspiration for those rights.71 In Ireland, similarly, the courts have been invoking the preamble to interpret the Irish Constitution, and as a tool to guide in understanding its spirit.72 A proposal to amend the preamble by adopting a nonjusticiable preamble, offered by a Constitution Review Group, was rejected.73
The use of preambles as a tool in constitutional interpretation is common in civil law systems, as well. In Estonia, the preamble, in which the Estonian people undertake to “guarantee the preservation of the Estonian nation and its culture throughout the ages,” has been used by the Supreme Court to confirm the constitutionality of an act requiring adequate command of the Estonian language as a prerequisite for election to a local government council. The Court ruled that mastering Estonian—the state's official language—is a legitimate requirement in light of the preamble.74 However, in another case, the Supreme Court declared that an act forbidding Estonians to change their Estonian last name to a non-Estonian last name is unconstitutional, despite the provision in the preamble regarding the protection of Estonian national identity.75 In Macedonia, the Supreme Court of the Republic upheld restrictions on the freedom of political association because certain activities were perceived as contrary to the preamble. It held that a political association that overtly denies the right of Macedonian self-determination is legally forbidden.76 In the Ukraine, the Supreme Court invoked the preamble in order to declare the constitutionality of the use of Ukrainian as the state language, an act requiring its use by central and local government agencies, and, consequently, greatly restricting the use of other languages, such as Russian.77
A recent example of the interpretive role of preambles comes from Germany. On June 30, 2009, the German Constitutional Court decided that, in principle, no incompatibility exists between the German Grundgesetz and the Treaty of Lisbon and thus laid the groundwork for completion of the ratification process.78 The treaty grants the European Union (EU) powers in matters of foreign and security policy and obliges member states to participate in European integration. The question was whether the treaty overrides the German constitutional order in a way that requires a constitutional amendment. The Court held that the treaty does not violate German sovereignty, although its confirmation does require some legislation processes. It referred to article 23(1) of the Basic Law, as well as to the preamble, taking note of the latter's intent “to serve world peace as an equal part in a unified Europe.” In light of these stipulations, the Court was able to conclude that it is the will of the German people to be part of the EU. It noted that the preamble emphasizes “not only the moral basis of responsible self-determination but also the willingness to serve world peace as an equal partner of a united Europe.”79 The Court observed that Germany breaks with “political Machiavellianism and with rigid concept of sovereignty” and seeks to realize “a united Europe, which follows from Article 23.1 of the Basic Law and the Preamble.”80 Therefore, the Constitutional Court held, achieving “European integration and an international peaceful order” is the will of the preamble.81
The German preamble, generally, does not enjoy legal force in German constitutional law. However, the Treaty of Lisbon decision was not the first to invoke the preamble. Another example was the decision regarding the treaty signed between the Federal Republic of Germany and the German Democratic Republic. The 1949 preamble lists unification as the highest priority, stating that “the entire German people is called upon to accomplish, by free self-determination, the unity and freedom of Germany.”82 Although the preamble speaks in the name of the German people as a whole—acting “on behalf of those Germans to whom participation was denied”—it only applied in West Germany. On December 1972, after the treaty on the relationship between the Federal Republic and the German Democratic Republic was signed, a petition challenging the treaty was placed before the Constitutional Court claiming that the treaty, which seemed to support the idea that West and East Germany were two separate and independent states, violated the unification clause of the preamble. In determining whether the treaty was compatible with the Basic Law, the Court addressed the preamble.83 It first decided that the preamble was a decisive source for determining the case, and then held that “the preamble to the Basic Law has not only political importance but also legal content.”84 Hence, “reunification is a constitutional command.”85 The Court noted that the treaty was a starting point for the future relationship between West and East Germany and gave the political branches wide discretion in deciding further political actions needed to bring about German unification.86
4.3. Substantive preamble
Preambles can also be legally binding constitutional clauses and serve as independent sources for rights and obligations. In Constitutional Theory, Carl Schmitt distinguishes between “constitutional laws” and the “constitution.” The former are constitutional provisions that govern behavior and set norms; the latter contains what Schmitt calls “fundamental political decisions.”87 These decisions are not constitutional laws but the “fundamental prerequisite[s] of all subsequent norms”;88 as such, they define the genuine objectives of a society. While fundamental political decisions may appear in the text of the constitution, or not be in the text of the constitution at all, they most often appear in the preamble. Indeed, “it is a typical error of prewar-era state theory to misconstrue” preambles as “mere statements,” declares Schmitt. Preambles, to a large extent, represent the society's “constitution,” while “constitutional law,” as specified in the body of the constitution, is only “secondary to the fundamental political decisions.”89
An example of a substantive preamble that governs constitutional interpretation and represents Schmitt's notion of “fundamental political decisions” is to be found in France. The preamble to the Constitution of the Fifth Republic (1958) states that the French people “proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the preamble to the 1946 Constitution.” The founding fathers of the Fifth Republic did not include a bill of rights in the Constitution.90 Instead, they drafted a preamble referring to two previous documents: the Declaration on the Rights of Man and of the Citizen of 1789, and to the preamble to the Constitution of the Fourth Republic of 1946. The preamble to the 1958 Constitution did not originally enjoy binding legal force nor was it even considered an integral part of the Constitution.
On July 16, 1971, the Conseil Constitutionnel recognized the preamble's binding force as an independent legal source of human rights. For the first time, the Conseil found an act passed by the French Parliament to be unconstitutional because it contradicted freedom of association, one of the “fundamental principles recognized by the laws of the Republic.”91 These fundamental principles were not mentioned in the 1958 Constitution but in the preamble to the 1946 constitution.92 In later decisions, the Council held that the preamble to the 1946 constitution enjoys legal force and constitutes an independent source of rights. Interestingly, at the time it was drafted, the 1946 preamble did not enjoy any legal status. Thus, the Conseil Constitutionnel, through a reference to the 1946 preamble in the 1958 preamble, effectively granted the 1946 preamble a higher status than it had previously enjoyed. Although not explicitly enumerated in the 1958 Constitution, the rights to strike, freedom of association, privacy, education, freedom of conscience, freedom of movement, and due process were all thereby recognized as constitutionally protected rights.93 Some of these rights, such as freedom of association, were not even listed in the 1946 preamble but were incorporated by affirming the doctrine of the “fundamental principles recognized by the laws of the Republic,” anchored in the 1946 preamble.94 The 1971 decision was France's Marbury v. Madison. It applied an interesting method of judicial interpretation according to which the 1946 preamble, the 1789 declaration, and the fundamental principles of the Republic were all granted constitutional legal status ex post facto.95
India is another example that illustrates the growing use of preambles in constitutional interpretation. The Indian preamble includes three sections: declarative, in which the people of India establish the Constitution through the constituent assembly; principled, in which the people of India establish a socialist, secular, democratic republic; and operative, in which the people of India sanctify four supreme aims: “Justice, Liberty, Equality, and Fraternity.” The original preamble was adopted on October 17, 1949, and was subsequently amended in 1977 with the addition of the terms “secular” and “socialist.” These changes brought about a constitutional revolution and have been interpreted since to formally provide India with a social character.96
In a nearly thousand-page benchmark decision,97 the Indian Supreme Court ruled that the preamble is part of the Constitution and enjoys legal force. The justices inquired into the theory of preambles and their uses. Some even cited American case law and Joseph Story's Commentaries on the Constitution of the United States to conclude that the preamble is the key to understanding the Constitution and interpreting its clauses. The preamble, together with the Fundamental Rights and the Directive Principles of State Policy—the most important parts of the Indian Constitution—constitute the core of the constitution. Unlike France, India declared that the preamble cannot, in and of itself, impose additional rights to those explicitly stipulated in the Constitution. Nevertheless, the courts regularly resort to using the preamble when the text of the Constitution is vague. For example, the Supreme Court relied on the preamble in establishing that the constitutional authorities draw their strength directly from the people of India, clarifying the character of India as a socialist republic, recognizing the possibility of the nationalization of private industries in order to secure equality and justice, and granting the expression “social justice” the status of a constitutional right.98 These references are interpretive, yet their quantity and length indicate a more substantive role of the Indian preamble in constitutional interpretation.99
A unique example of a substantive preamble appears in Nepal. Article 116(1) of the Nepalese Constitution proclaims that “a bill to amend or repeal any Article of this Constitution, without prejudicing the spirit of the Preamble of this Constitution, may be introduced in either House of Parliament.” This clause invalidates even a constitutional amendment that violates that spirit of the preamble. Nepal is unique not only for the specific provision indicating the legal status of the preamble but also for taking additional measures to protect the preamble's spirit.100 The concept of a constitutional amendment that is unconstitutional vis-à-vis the spirit of the constitution is found in Schmitt's theory. For Schmitt, constitutional laws may be amended, and even eliminated, by adhering to the amendment procedure of the constitution. Fundamental political decisions, however, cannot be amended or eliminated in the same way. “The German Reich cannot be transformed into an absolute monarchy or into a Soviet republic through a two-thirds majority decision of the Reichstag,” Schmitt declared, just as “a majority decision of the English Parliament would not suffice to make England into a Soviet state.”101 Legislators are not omnipotent; only the people, acting directly or through a constitutional assembly, can change fundamental decisions. In Nepal, this concept has been influenced by the Indian concept of “basic structure.”102 A number of dissenting justices in India ruled that the preamble is not a regular constitutional clause and, therefore, its “basic structure” cannot be amended; representing eternal law, it cannot be set aside by an amendment, not even by the amendment procedure of article 368 to the Indian Constitution.103 The fundamental values of the Constitution, as they appear in the preamble, cannot be altered. 104 In Schmitt's terms, the amendment procedure of the constitution can amend constitutional laws but not the Constitution; a new constitution would have to be created and accepted.105 The preamble “walks before the Constitution.”106 Hence, it is not only a source of rights and powers but also of entrenchment.
An interesting case of a substantive preamble appears in the Constitution of the Republic of Bosnia-Herzegovina (BiH). The Dayton Agreement (1995) divided the republic into two separate entities: the Federation of Bosnia-Herzegovina and the Republic of Srpska (RS), each with its own constitution. In an important decision, the BiH Constitutional Court found four sections of the preamble to RS's Constitution unconstitutional because of its contradictions of the BiH Constitution. The Court decided that certain statements or phrases in RS's preamble conflicted with the body of the BiH and its preamble; for example, “a state of the Serbian people,” “the Serb people's self-determination,” “state independence,” and the like.107 The Court held that the Constitution of BiH had established two independent political entities, not two separate nation-states.108 The Republic of Srpska was part of the entire republic and did not belong exclusively to the Serb people. The Court dismissed RS's argument according to which its “preamble was not an operative part of the Constitution of Republic [of] Srpska and had no normative character,” noting that:
As any provision of an Entity's Constitution [RS] must be consistent with the Constitution of BiH, including its Preamble, the provisions of the Preamble are thus a legal basis for reviewing all normative acts lower in rank in relation to the Constitution of BiH for as long as the aforesaid Preamble contains constitutional principles … the provisions of the preamble are therefore not merely descriptive, but are also invested with a powerful normative force, thereby serving as a sound standard of judicial review for the Constitutional Court. Hence, the Constitutional Court must establish in substance what specific rights or obligations follow from the constitutional principles of the Preambles of both the Constitution of BiH and the Constitution of RS.109
This survey demonstrates the growing use of preambles in constitutional adjudication. Nevertheless, it is difficult to generalize under what circumstances it is likely that a preamble may play a functional role, whether interpretive or substantive. In some cases, preambles are more substantive when there is no explicit bill of rights in the constitution, as in France. In other cases, as in India, preambles are more likely to be substantive when they set up concrete norms rather than abstract ideas, such as happiness or love. On the other hand, when a gap between the content of the preamble and the text of the constitution exists, as in Canada, the preamble is less likely to play a role in constitutional interpretation. Nonetheless, going back to Hans Kelsen, the legal status of the preamble is still to be considered functional. In principle, a preamble “usually does not stipulate any definite norms for human behavior and thus lacks legally relevant contents. It has an ideological rather than a juristic character.”110 However, the legal status of the preamble depends on various criteria; among them is its content. A preamble may have a normative character whenever “its meaning is to establish … an obligation. A statement whose meaning is to establish an obligation is a norm.”111
One question that arises is why would a preamble not be regarded as binding in the first place? Why is it required of those who want the preamble to have a legal meaning to make a case for its functionality? In many instances, it is clear that justices in various states have paid particular attention to the legal status of the U.S. preamble when determining the case before them. It does appear peculiar that one of the most comprehensive studies on the legal status of the U.S. preamble was not conducted by American scholars but by Indian justices in Delhi.112 One thing, however, is clear: in many countries, it is no longer possible to treat the preamble as a prefatory rather than as a dispositive piece of the constitution. Preambles are playing an increasing role in constitutional interpretation.113 At least two lessons can be drawn: (a) parties to litigation should be aware of the growing role of preambles in constitutional adjudication, which means that they can invoke the preamble as a source of law; (b) future constitutional design must consider the legal status of the preamble. Constitutional framers either can determine the legal status of the preamble in the constitution themselves or let the courts decide the issue.
5. Integrative and disintegrative power of preambles
The preamble's strength lies not only in the legal sphere but also in its social function and effect.114 The United States probably has the best example of an integrative preamble. However, just as preambles can foster integration by forging a common identity, so also they can be disintegrative, driving people apart and contributing to social tension. This occurs when a preamble reflects only the story of a dominant group. If the preamble states the fundamental principles underlying the constitution and enjoys legal status—that is, these principles are no longer political morality or nonbinding historical statements—it is necessary to consider what is written therein. Four cases are briefly discussed here: Macedonia, Israel, Australia, and the EU.
5.1. The Macedonian experience
Macedonia was established as an independent state after the dissolution of Yugoslavia. The state includes a substantial Albanian national minority (as well as other minorities), variously estimated at from one-fourth to one-third of the population. The preamble to the 1991 Constitution established Macedonia as “the national state of the Macedonian people” and referred at length to their history, culture, and identity. It was a strictly Macedonian preamble in the ethnic sense, noting only the “historical, cultural, spiritual, and statehood of the Macedonian people.” The preamble stated that Macedonia was founded in order to serve as the “national state of the Macedonian people” as well as other nationalities that reside therein.115 The preamble secured full equality for all citizens, yet the Albanian minority fiercely opposed the nationalistic statements in the preamble and, in particular, the reference to Albanians as a national minority. During the 1990s, Albanian factions began to employ violence in order to force a constitutional amendment that would transform Macedonia into a binational state and grant Albanians full territorial and political autonomy in areas with an Albanian majority. Under pressure from the Albanian minority and the international community, the Macedonian preamble was amended in November 2001 following the Ohrid Agreement in August 2001. The Macedonian national statements were omitted, and the Albanian minority was listed as “part of the Albanian nation.”116 The amended preamble is more inclusive and embraces a broader concept of civic identity:
The citizens of the Republic of Macedonia, the Macedonian people, as well as the citizens living within its borders, which are part of the Albanian nation, the Turkish nation, the Vlah nation, the Serbian nation, the Roma nation, the Bosnian nation and others … have decided to establish the Republic of Macedonia as an independent, sovereign state.
By including only a limited national narrative and expressing future aspirations of a specific national group, the original Macedonian preamble had excluded the Albanian minority from the mainstream of Macedonian life; it thereby weakened the Constitution's political legitimacy.117 The Albanians demand was for a more consensual, less partisan preamble with which all citizens could identify. Yet, one can be skeptical regarding the efficacy of such a preamble in those nation-states that, by definition, are not equally accepting of all national groups. More importantly, the amendment to the preamble has not resolved the social conflict. On the contrary, the deletion of Macedonia as a nation-state caused resentment among ethnic Macedonians, who felt that this change had been forced upon them by violence and international pressure. Similarly, ethnic Albanians continue to challenge their linkage to other minorities and their inferior status, which is derived, in their view, from the term “as well as” that appears in the preamble. They object to any preamble that falls short of referring to a fully binational Macedonia. This case thus emphasizes the power of preambles either to unify or to divide political resources; it also sheds light on the limits of constitutional design to ameliorate ethnic conflicts or foster a common national identity.
5.2. The Israeli experience
Israel is considered to be among the few democracies not having a formal written constitution. In fact, one of the historical reasons for the failure to establish a constitution stems from the inability to achieve consent regarding the preamble's content.118 The Israeli parliament (the Knesset) preferred to create a constitution in stages through the adoption of separate Basic Laws,119 which—following the enactment of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation in 1992—have been declared by the Supreme Court a constitutional revolution and “substantive constitution.”120 As a quasi preamble, the courts have used the 1948 Declaration of Independence. In 1994, the Knesset amended the Basic Law: Freedom of Occupation and the Basic Law: Human Dignity and Liberty. These amendments included two important sections declaring, for the first time, that Israel is a Jewish and democratic state and that human rights are to be respected in the spirit of the principles set forth in the Declaration of Independence. Articles 1 and 1A of the Basic Laws read as follows:121
I. Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.
IA. The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.
This amendment is consonant with most of the substantive requirements of a preamble; it recognizes the fundamental values of the state of Israel and its national character. While it is not a formal preamble—bearing the title “preamble” or a similar title (“foreword,” “preface,” and the like)—it may constitute, in effect, a substantive preamble. It was also the first time in Israel's legislative history that the Declaration of Independence was incorporated into law. The legal status of the Declaration of Independence has changed over the years. Soon after the state's foundation, the Supreme Court refused to grant it legal status;122 however, this attitude changed with the Supreme Court's progressive reliance on the human rights guaranteed in the declaration for constitutional interpretation. The Court has repeatedly ruled that the declaration serves as a political act with legal implications that should be respected by all authorities, although it could not disqualify acts of parliament. The Court adopted a Blackstonian reading of preambles under which a law, interpretable in different ways, would be interpreted in the manner compatible with the preamble's spirit or, in this case, the declaration’s.123 Following the 1994 amendments, a few judges ruled that the legal status of the Declaration of Independence had been altered, significantly, and held that the Court may declare rights recognized by the declaration as constitutional rights.124 In one case, a dissenting judge even ruled that the Disengagement Plan regarding the unilateral withdrawal from the Gaza Strip was unconstitutional, because it conflicted with “the right” of the Jewish people to settle in all the territories of the Land of Israel/Palestine, protected, in his view, by the Declaration of Independence.125
The Jewish and democratic character of Israel is its basic constitutional structure. This structure, as former president of the Supreme Court Aharon Barak argues, is eternal and, therefore, an amendment that denies it would be an unconstitutional constitutional amendment.126 In fact, Israel has been a Jewish state from its foundation but, until 1994, it was an unwritten convention rather than a constitutional imperative. Legalization of the term “Jewish state” has granted the courts the power to decide the meaning of this character and has triggered social tension between secular and ultraorthodox Jews and between Jewish and Arab citizens. Arab citizens feel that the Basic Laws have excluded them from Israel's social arrangement and have ignored their identity, culture, and heritage. By adopting a constitutional definition of Israel as a Jewish State, the Basic Laws exclude them from the Israeli mainstream and treat them as “second-class citizens.”127 The Israeli experience demonstrates how the preamble's design can raise ideological barriers to social integration as well as produce feelings of not belonging.128 The “Purpose Clause,” considered Israel's substantive preamble,129 is not ideologically neutral; it does not state “we, the people of Israel,” and its meaning is the focus of ongoing disputes and social divisions.130