Steve G.

HOW I THINK THE CONSTITUTION CAN BE FIXED (Part II: The Preamble)

In Activism, Congress, Constitutional Rights, Democracy, History, Law, Libertarian, Libertarian Politics, Military, Politics, US Government, War on May 26, 2009 at 8:00 am

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.

At 53 words (1.15% of the total words in The Constitution), The Preamble to The Constitution of The United States is, not counting any of the Amendments, the shortest section of The Constitution after Article VII (Ratification). It has never, to my knowledge, ever been used as a basis for any constitutional court case, or for any decision (majority, dissenting, or separate) made by The Supreme Court. The Preamble is essentially considered to be the ‘pretty words’ before the ‘actual’ Constitution. That is kind of like seeing it as a short, light poetry reading for entertainment purposes before the start of the ‘real business’ part of the program. I think that such a view is a tragic mistake.

First of all, The Preamble is fully a part of The Constitution, written with it and subjected to the same ratification process as every other part of The Constitution was. It is a shame, at best, and short-sighted, at worst to not give it the same respect and standing as every other part of The Constitution. For example, for the hawks and for those in the Bush administration, it provides the best justification in the entirety of The Constitution for their aggressive military views and focus on defense issues (“We the People of the United States, in Order to…, provide for the common defence). In my view, the ‘Commander-in-Chief” clause (which I will talk about in my part of this article which will deal with Article II – The Executive Branch) does NOT give the Executive Branch the power or authority that it wants to claim under that clause. Their best arguments can be made using the relevant words in The Preamble.

Unfortunately, for those same hawks and those conservatives who are against progressive social policies, if they want to use the ‘common defence’ wording of The Preamble upon which to build a case, they must also concede equal standing to all of the other provisions of The Preamble. To me, The Preamble is an active part of The Constitution which establishes objectives which our government under The Constitution is obligated to strive to try to achieve. I will discuss this idea in more detail in the part of the article which will deal with Article I (The Legislative Branch) but, briefly goals and objectives are the same as strategies and tactics. Objectives / tactics are the broad, general, rather nebulous overarching purpose of something which cannot be quantifiably measured or ever be truly achieved… we will make the world a better place, we will create a more perfect union, we will explore space, we will end sickness and disease, etc.… these are all objectives. You cannot measure them, you cannot quantify them, you can ONLY work towards them. What helps you work towards achieving your objectives / tactics are your goals / strategies. Goals / strategies are the specific, quantifiable and measurable and specifically achievable progress points which are established as as ways to help us achieve our objectives / strategies … we will reach the moon by the end of the decade, we will give the vote to eighteen year-olds, we will defeat Hitler, we will wipe out smallpox, etc…. these are all goals.

For my section on the Legislature, I will advocate, and give my rationale for making goals and objectives a specific part of the legislative process. For this section on The Preamble, I will simply say that it is where I see the founders listing the objectives which they wanted us to work towards. To me, this makes The Preamble one of the, if not the, single most important parts of the entire Constitution. All that WE need to do is pay attention to it and give it the same respect and standing that we give to any and every other part of The Constitution.

The lack of consideration given to The Preamble is yet another shining example of what I see as the base hypocrisy of those who cry and scream that The Constitution needs to be read literally and without interpretation (the second part of which is, of course, impossible) but do not practice what they demand. The Preamble is just as much a part of The Constitution as any other part is. It was subjected to the same ratification procedure and cannot be changed without such changes going through the same amendment procedure as any other changes to The Constitution would have to go through.

The only change that I would make with regards to The Preamble would not be to change any of its words, it would be to change what respect and legal standing we give those words among our other laws and constitutional provisions.

Rhys M. Blavier

Romayor, Texas

Truth, Justice and Honor… but, above all, Honor

© copyright 2009 by Rhys M. Blavier
________________________________________________________________________________________

Thank you for reading this article. Please read my other articles and let me know what you think. I am writing them not to preach or to hear myself think but to try to create dialogs, debates and discussions on the nature of our government and how we can build upon and improve it based on what we have seen and learned over the course of the 225 years of The American Experiment.

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  1. The preamble is our true Constitution. The rest of it is merely the framework of government.The Bill of Rights was insisted upon to secure the preamble from abuses and usurpations. The ignoring of the preamble in federal jurisprudence enabled the evisceration of natural rights we see today.

  2. Mr. Blavier,

    You write, “To me, The Preamble is an active part of The Constitution which establishes objectives which our government under The Constitution is obligated to strive to try to achieve.”

    This is, as far as I’m concerned, wholly incorrect. The words “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” are merely there to explain why “We the People…do ordain and establish this Constitution for the United States of America.” Since “this Constitution for the United States of America” has been hence “ordain[ed] and establish[ed],” nothing more is required by the text to be done “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.” Everything that needs to be done “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” has already been completed in the “ordain[ing] and establish[ing of] this Constitution.” In a phrase: mission complete.

    Now, some may disagree that a more perfect union has been formed, that justice has been established, that domestic tranquility has been insured, that the common defence has been provided for, that the general welfare has been promoted, or that the blessings of liberty have been secured. But such disagreements are irrelevant. The point is not that these goals have actually been achieved, but rather that the preamble does not grant any power whatsoever to our statist overlords; it merely “ordain[s] and establish[es] this Constitution for the United States of America” and explains why the “ordain[ing] and establish[ment of] this Constitution for the United States of America” is supposedly a good thing—nothing more. It is not a grant of power, the framers did not consider it a grant of power, and our third president definitely also did not view it to be a grant of power.

    Respectfully,
    Alex Peak

  3. Alex,

    Thank you for your comment. I sense that over time you and I might have some interesting discussions.

    You said:

    “The point is not that these goals have actually been achieved, but rather that the preamble does not grant any power whatsoever to our statist overlords;”

    and:

    “It is not a grant of power, the framers did not consider it a grant of power, and our third president definitely also did not view it to be a grant of power.”

    I do not believe that anywhere in my article did I say that The Preamble DID grant POWER to any branch of the government, or to the government, in general. What I DID say is:

    “To me, The Preamble is an active part of The Constitution which establishes objectives which our government under The Constitution is obligated to strive to try to achieve.”

    What I think that The Preamble does, and why I think it should be considered an active part of The Constitution, is that it provides the context of what follows and unifies ALL of the branches and operations of our government in common purpose.

    I think that whenever Congress or The Executive want to make an agrument or pass a law, or debate and power, they should be guided by that view which is most in line with the stated onjectives of The Preamble. Likewise, whenever the Supreme Court, or any court or judge, for that matter, rules on the Constitutionality of any case before them they should be guided by what result or interpretation best accomplishes the objectives given to the government within The Preamble. For example
    When Judge Bork make his infamous ‘inkblot’ assessment of the 9th Amendment, his opinion and statement were indefensible if you consider it as an embodiment of The Preamble, if you judge it based on how it would best help us achieve the objective of The Preamble.

    I said that The Constitution has both goals AND objectives… I also defined what I meant by those two terms:

    “goals and objectives are the same as strategies and tactics. Objectives / tactics are the broad, general, rather nebulous overarching purpose of something which cannot be quantifiably measured or ever be truly achieved… we will make the world a better place, we will create a more perfect union, we will explore space, we will end sickness and disease, etc.… these are all objectives. You cannot measure them, you cannot quantify them, you can ONLY work towards them. What helps you work towards achieving your objectives / tactics are your goals / strategies. Goals / strategies are the specific, quantifiable and measurable and specifically achievable progress points which are established as as ways to help us achieve our objectives / strategies … we will reach the moon by the end of the decade, we will give the vote to eighteen year-olds, we will defeat Hitler, we will wipe out smallpox, etc…. these are all goals.”

    Some people advocate legislation which would require all other legislation to specify what the Constitutional basis is of that legislation. I think that it should also be required to tell us how it is intended to help us move closer to the onjectives established for us in The Preamble.

    Sincerely,

    Rhys M. Blavier

  4. Hmm.

    Mr. Blavier, I’m sorry for misinterpreting your position. I interpreted you to mean that the preamble established powers for the central government, not that it established objectives that we should strive for within the context of the limited powers the Constitution elsewhere affords to the central government. This latter approach seems far more reasonable.

    Nevertheless, I still find objection to your position. Specifically, you write, “Likewise, whenever the Supreme Court, or any court or judge, for that matter, rules on the Constitutionality of any case before them they should be guided by what result or interpretation best accomplishes the objectives given to the government within The Preamble.”

    This runs grave risks. Currently, the SCOTUS avoids basing its decision on whether a given law is a “good” or “bad” law, considering such questions to be “political questions” and thus the rightful jurisdiction of the other two branches, particularly the legislative branch. What it rules on is how the law is interpreted and whether the given law of probvision thereof conforms to the limitations placed upon governmnet policy by the Constitution. This is not to say that the SCOTUS is perfect, of course. It (1) does let its constituent political views influence its decisions and (2) interprets the powers of the central state far too broadly (while interpreting the rights of the people often too narrowly). But I still find the prohibition on deciding political questions an important self-limitation that it sometimes uses, since it would be clearly violating the separation of powers to consider them.

    So how does this play into the preamble? If the SCOTUS is to now start deciding whether a given policy “establishes Justice,” e.g., it will inevitably have to decide political questions. I far prefer this to be decided by the Congress, which is at least slightly-responsible to the people. The SCOTUS, notably, is fully insolated from the people.

    If Ms. Sotomayor is rejected and Mr. Obama surprises the world by nominating me to the SCOTUS, I honestly have to say that I would maintain the precedent in not citing the Preamble. I believe abandoning this precedent would be dangerous, although I do now understand your perspective on the matter better, I believe, and I do have to say I have much more respect for it than I had when I previously misinterpreted you.

    Conversely, however, if I were in Congress, I might go ahead and cite aspects of the Preamble (in addition to the more important citations from Art. I, Sec. 8) in my findings clauses.

    Yours truly,
    Alex Peak

  5. This guy is about as dumb as a box of rocks….. Who ever suggested to you in your past that you should write your ridiculous opinions.

  6. Shawn, are you another incaration of Radar News from Newsvine and Michael Hulmes from Facebook who is cyberstalking me after getting booted off of Newsvine? Since your timing on showing up here is too coincidental, I will simply assume that you are and will be reporting your comment as harrassment and cyberstaking.

    Have a nice day.

    Rhys M. Blavier

  7. Alex,

    I want to apologize to you. You have written some outstanding comments which I need to reply to if, for no other reason, than to return to you the honor and respect you have shown me with the quality of your comments. RL has been keeping me from things on line (and from off-line writing) which require much time and concentration. I am not ignoring you and will, hopefully soon, be replying back to you.

    In the meantime, thank you for adding your thoughts and outstanding comments to my threads. They are appreaciated.

    Sincerely,

    Rhys M. Blavier

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