Posted by KatNip on October 01, 1998 at 14:43:26:
In Reply to: Re: We the People posted by New Kid on October 01, 1998 at 03:10:08:
“The next day, August 14, the debate on the first provision continued. Thomas Tucker of South Carolina wondered how you could amend a preamble. It would be like amending George Washington’s letter of transmittal to the president of Congress. Thomas Sumter of South Carolina urged the Committee to pass over the preamble until they had gone through all the amendments. John Page of Virginia could not see the need for additional language. After all, the preamble was not a part of the Constitution, but if it was, “the words, ‘We the people,’ had a neatness and simplicity, while its expression was the most forcible of any he had ever seen prefixed to any Constitution.” Taken from the debate of August 14, House Proceedings, pp. 424-50. Richard T. Burress, The Bill of Rights: James Madison’s Legacy (Stanford University, 1989), pp. 37-38.
Preamble as a Source of Substantive Power. “No power to enact any statute is derived from the preamble. The Constitution is the only source of power authorizing action by any branch [department] of the Federal Government.” The Constitution of the United States of America (Annotated), p. 77, USGPO (Washington: 1938). Cases cited: In re Ross, 140 U.S. 464 (1891); Dorr v. United States, 195 U.S. 140 (1904); Jacobson v. Massachusetts, 197 U.S. 22 (1905).
“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.” The Constitution as Reported by the Committee of Detail in Carl Van Doren’s, The Great Rehearsal: The Story of the Making and Ratifying of the Constitution of the United States (N.Y.: Viking Press, 1948), pp. 278-287. This constitution later went to the Committee of Style and arranged in such manner as the present CONSTITUTION for the United States of America now reads.
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.
Tuesday, August 7, 1787, In Convention: The Preamble to the U.S. Constitution. On this day, the Convention proceeded to take up the Report of the Committee of Detail, section by section. There was little occasion for debate over Article I, that “the stile of the Government shall be ‘The United States of America.’” The name “United States of America” was, of course, that which appeared in the Articles of Confederation, where it appeared as “the stile of this Confederacy.” In the final draft made by the committee of Style on September 12, this provision disappeared as a separate Article and was embodied in a new Preamble.
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The wording of the Preamble, though it was never discussed by the Convention, deserves some attention. Randolph’s first draft of a Constitution submitted to the Committee of Detail had opened with the following suggestion: “In the draught of a fundamental Constitution two things deserve attention. 1. To insert essential principles only, lest the operation of government should be clogged by rendering those provisions permanent and unalterable which ought to be accommodated to times and events. 2. to use simple and precise language, and general propositions, according to the example of the Constitution of the several States.”
Randolph had then proceeded to state his ideas of what a Preamble should contain: “A Preamble seems proper, not for the purpose of designating the ends of government and human politics. This display, however proper in the first formation of State Governments, is unfit here; since we are not working on the natural rights of men not yet gathered into society and interwoven with what we call the rights of States, nor yet is it proper for the purpose of mutually pledging the faith of the parties for the observance of the Articles. This may be done more solemnly at the close of the draft as in the Confederation. But the object of our Preamble ought to be briefly, to declare that the present Foederal Government is insufficient to the general happiness, that the conviction of this fact gave birth to this Convention, and that the only effectual mode which they can devise for curing this insufficiency is the establishment of supreme Legislative, Executive and Judiciary. Let it be next declared that the following are the Constitution and fundamentals of Government for the United States.”
The Preamble as finally drafted by the Committee of Detail, was much simpler and shorter than Randolph proposed. It began, “We, the people of the States of New Hampshire, Massachusetts, Rhode Island”, etc., and ended, “do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity .”1 This wording should be contrasted with the Articles of Confederation, which had begun with the words: “Articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts, Rhode Island”, etc.
When, at the close of the Convention, the Committee of Style appointed to prepare a final draft of the Constitution made its Report on September 12, it entirely changed the phraseology of the Preamble. The words, “We, the people of the States of New Hampshire”, etc., became, “We, the people of the United States.” The final clause, “declare and establish the following Constitution for the Government of Ourselves and our Posterity”, became “do ordain and establish this Constitution for the United States of America.” Between these two clauses, there was then inserted a statement of the purpose of the Constitution, taken from the first Resolution of Randolph’s Plan of May 29, as follows: “Resolved, that the Articles of Confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution, namely, ‘common defense, security of liberty, and general welfare’”,——which in turn had been taken from Article III of the Articles of Confederation averring the purpose of that “league of States” to be “for their common defense, the security of their liberties and their mutual and general welfare.” In the Report of the Committee of Style of September 12, this part of the Preamble became: “in order to form a more perfect union, to establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”
In later years, an attempt was made to attribute great significance to the change made by the Committee of Style in substituting the phrase “We, the people of the United States”, for the phrase, “We, the people of the States of New Hampshire, Massachusetts, Rhode Island”, etc. But this change was not intended by the Convention to anything more than a matter of form. As the phrase was originally drafted, reciting the people of each of the thirteen States separately by name, it was then intended by the Convention that this new Constitution, before it should become effective, must be ratified by all the thirteen States, and that the requirement of the Articles of Confederation for unanimity of States on any Amendment should be complied with, this new Constitution being regarded in the light of such an amendment. But when, on August 31, the Convention decided that the new Government should go into operation upon ratification of the Constitution by nine of the thirteen States, such action made it necessary to eliminate from the Preamble the names of the specific States; for it could not be known, at the date of the signing of the Preamble and the rest of the Constitution by the delegates, just which of the thirteen States would ratify. Hence, the language, “We, the people of the United States”, was used, the meaning being, “We, the people of the States united”, i.e., the people of those States which would agree to unite, by ratifying the new Constitution. “No other intent was suggested or contemplated” by this change of language. Charles Warren, The Making of the Constitution (Little, Brown, and Company, 1928), pp. 391-396.
The articles of confederation formed an agreement “between the States of New Hampshire, Massachusetts, Rhode Island, . . .” and the rest of the thirteen. At one stage of the development of its report, the committee of detail tried in the preamble “We the People of and the States of New Hampshire, Massachusetts, Rhode Island,” etc., but later the “and” was dropped out. * * * The simple fact remains that the committee of style cleverly avoided the difficulty before them by phrasing the preamble:——”We, the People of the United States.” Viewed in this light the preamble loses something of the importance often ascribed to it, and yet the opening words remains among the most significant in the constitution. pp. 190-191. On Monday, the 17th, the convention met for the last time. The engrossed constitution was read and in order to disguise the fact that a few of the delegates present were unwilling to sign the document, Gouverneur Morris devised a form that would make the action appear to be unanimous: Done in Convention, by the unanimous consent of the States present the 17th of September . . . In Witness whereof we have hereunto subscribed our names.” Farrand (ed.), The Framing of the Constitution (Yale University Press, 1913), p. 192.
“Whether the constitution was made and adopted by the States, or by its people of the States, [is] a political question, [and] of no importance for any purpose of judicial investigation.” Hawkins v. Filkins, 24 Arkansas Reports 286 (1866).
“Who, then, are those persons of whom the United States as body politic consists, and who constitute its members? Clearly they must be either the States in their corporate capacity, i.e., artificial and legal persons, or citizens of all the States in their aggregate; and it is not difficult to see that they are the former. Indeed, the latter do not form a political unit for any purpose. The citizens of each State form the body politic of that State, and the States form the body politic of the United States. The latter, therefore, consisted at first of the original thirteen States, just as the Confederation did . . .” C. C. Langdell, The Status of Our New Territories, 12 Harv.L.Rev., No. 6, 365, 369 (1899).
New Kid, if you’d like I can post the original CONSTITUTION
before the Committee of Style got hold of it.
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: : The significance of the term "People", as found
: : in the Preamble, has not changed, for purposes
: : of the supreme Law in America."
: My understanding is that a preamble is not considered part of the law, it is explanatory, just as whereas statements are not part of the law, only the declaration.
: What exactly was the purpose of the preamble when in the text it states, "in Order to form a more perfect Union, establish Justice, in sure domestic Tranquility, provide for the common defense, promote the general Welfare, etc..." If you are modifying the original compact as declared in Texas v. White [a perpetual union] what is the purpose of a preamble?
: If you are declaring something beyond the scope of the original compact then I understand. But it seems to me that you have created something other than the perpetual union of confederate states.
: New Kid