The Preamble – Part III: “to form a more perfect union”

November 26, 2017 Frank Kuchar

When you read the Preamble to our Constitution, you should not just gloss over it so as to “get to the meat” of the Constitution. As I’ve pointed out in previous essays – and especially last week’s (The Preamble – Part II) – the Preamble serves introduce the reason for the Constitution, and the ordering of the six reasons listed in the Preamble are, in my opinion, no accident. In an eloquent stroke of genius, Gouverneur Morris captured in his edit of the Preamble the historical reason for the Constitution as well as the philosophical basis for free government. All of the reasons he lists flow out of the first, for without it, none of the other five would have been possible.

This first reason sets forth the historical basis for the need of a new constitution. When the Constitutional Convention (as it is called) convened in Philadelphia in the spring of 1787, 12 of the 13 states sent representatives to it as they had come to the realization that as 13 separate, sovereign and independent entities, their confederation was not fulfilling the promise for which they had fought to gain their independence from Great Britain.

The states were at odds with each other at every turn it seemed. From the perspective of commerce, things were a mess. They were charging each other tariffs on the transportation of goods when one state wished to transport their goods across another’s borders, hampering commerce throughout the confederation. Each state was free to negotiate trade deals with the other nations of the world, even if those trade treaties would be to the detriment of their sister states.

The Continental Congress to which the states sent representatives was very weak and unable to enforce any tenets of the Articles of Confederation (our “first constitution) if not enough of the states agreed to back their resolutions or attempts of enforcement. This was especially evident in states not willing to support the confederation financially as they should have to pay off debts incurred during the War of Independence.

Perhaps the most serious defect, however, was the lack of a solid defensive unity, making all of the states vulnerable to the manipulation and even military domination of the much stronger European powers who were “licking their chops” at how they could exert their influence on these “upstart” former colonies.

Were the states united at the time of the Convention of 1787? Yes, but not very well. However, in order to accomplish the following five reasons for the Constitution and its new form of government, it was necessary to, as the Preamble begins, “to form a more perfect union.”

-November 25, 2017

The Preamble – Part II

November 17, 2017 Frank Kuchar

As I pointed out in the past essay in this series (The Preamble – Part I), the Preamble is not an actual part of the Constitution, meaning it carries no weight as “law”, but rather serves as a broad, thematic statement as to the purpose for which the Constitution’s articles (and subsequent amendments) were written, and in turn, the purpose for which those citizens in 1787 were forming the new government which sprang from the Constitution.

This understanding of the function of a preamble to any document and how broad, general statements, cannot be applied to mean anything and everything is to be permitted, is critical to grasping how the intent of the Constitution was to limit the power of government and expand the freedom and liberties of the citizenry.

This is clear from two perspectives. One is grammatical, the other is from the pen of James Madison. Grammatically, the Preamble states that what is to follow in the Constitution has a distinct and limited purpose as indicated by the phrase “in Order to.” This would indicate that anything outside the scope of the six actions that follow is not something within the purview of the national government. The Constitution charges the government to perform six actions, indicated by the verbs “form”, “establish”, “ensure”, “provide”, “promote” and “secure.” I will be examining each of these six functions in the weeks to come, but, as we go through a study of them, remember these words of Madison when he was expounding on the structure of Article I, Section 8 of the Constitution in The Federarlist No. 41 regarding how to interpret general phrases:

“But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.”

It is the specifics delineated in the Constitution that explain in what manner the government is to carry out these six broad commissions given to it by “We the People” that we will be examining in the coming essays.

November 17, 2017

The Preamble – Part I

November 12, 2017November 15, 2017 Frank Kuchar

Most people, if you were to stop them on the street and ask them to recite the Preamble of our Constitution, would (I hope) at least remember the first three words, “We the People.” If you were to read the original wording of the Preamble you would be surprised at the stilted and wordiness of it. We owe the eloquence of what it came to be to the young delegate from Pennsylvania, Gouverneur Morris. It was he who took that awkward draft of the preamble and gave it the wings on which it soars today.

Whereas some constitutions of other nations have either been explicitly incorporated to be a part of their constitution or by interpretation by their courts to carry the same weight as their constitution, the preamble of the US Constitution is not a part of constitutional law and has never been applied as such, even though many progressives attempt to use it as such.

A preamble merely sets for the purpose or objectives of what is to follow in the document to which it is the introduction. When attached to a statute (or law) a preamble merely sets forth the intention that was in the minds of the legislature when it was enacted. Inasmuch as the Constitution is the “supreme law of the land” according to Article VI, Section 2, then the Preamble is not law, but merely sets forth the intent for which our government was formulated and shaped by the following seven articles (and subsequent amendments) of it.

The Preamble has two parts: the origin from whence it (and subsequently the government it established) came, and six objectives of the Constitution which follows it is to achieve. The origin is not the states, as the wording in the original draft indicated, but rather, thanks to Gouverneur Morris, us – “We the People” (see my last essay “We the People”). The following six “goals” if you will that the authors of the Constitution envisioned it would achieve are stated in broad, general terms – just as a thematic statement should be. So when it mentions, for example, “to promote for the general welfare”, it was not the intention of the founders to be giving carte blanche to the government to do whatever it felt would be good for the general welfare of the country (but more on this in a subsequent essay).

Over the next six weeks, then, it will be my intent to look at each of these six objectives in the light in which the founders intended and not as progressives would have us believe we are to understand and apply them today.

-November 11, 2017