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In 1833, Mr. Calhoun when voting in the Senate upon the tariff act of that year said that he wished it distinctly understood that he did so upon the condition that a certain construction and application should be given to the measure. Other Senators, however, promptly and properly pointed out that such a qualification would be void of any force, as the act would, after enactment, necessarily be given such a meaning as its words and the Constitution would permit.


§ 19. Resort to the Preamble for Purpose of Construction.

The value of the Preamble to the Constitution for purposes of construction is similar to that given to the preamble of an ordinary statute. It may not be relied upon for giving to the body of the instrument a meaning other than that which its language plainly imports, but may be resorted to in cases of ambiguity, where the intention of the framers does not clearly and definitely Congress in relation to the meaning of the act, and add: “There is, too, a general acquiescence in the doctrine that debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body (United States v. U. P. Railroad Co., 91 U. S. 72; 23 L. ed. 324; Aldridge v. Williams, 3 How. 9; 11 L. ed. 469; Taney, Chief Justice; Mitchell v. Great Works Milling and Manufacturing Co., 2 Story, 648; Queen v. Hertford College, 3 Q. B. D. 693). The reason is that it is impossible to determine with certainty what construction was put upon an act by the members of a legislative body that passed it by resorting to the speeches of individual members thereof. Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other; the result being that the only proper way to construe a legislative act is from the language used in the act, and, upon occasion, by a resort to the history of the times when it was passed.” The opinion then goes on to show that from “ the history of the times” it would appear that the act in question was intended to have the meaning which the court attaches to it.

Justice Brown in Downes v. Bidwell (182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088) says: The arguments of individual legislators are no proper subject for judicial comment. They are so often influenced by personal or political considerations, or by the assumed necessities of the situation, that they can hardly be considered even as the deliberate views of the persons who make them, much less as declaring the construction to be put upon the Constitution by the Courts." (Citing United States v. Union P. R. Co., 91 U. S. 72; 23 L. ed. 324.)

36 Benton, Thirty Years' View, I, 329.

appear. As Story says: “ The preamble of a statute is a key to open the mind of the makers as to the mischiefs which are to be remedied, and the objects which are to be accomplished by the provisions of the statute.” 37

Special significance has at various times been attached to several of the expressions employed in the Preamble to the Constitution. These expressions are:

1. The use of the phrase “We, the People of the United States," as indicating the legislative source of the Constitution.

2. The denomination of the instrument as a “ Constitution."

3. The description of the federation entered into as “a more perfect Union.”

4. The enumeration of the common defense” and “ general welfare” among the objects which the new government is established to promote.

8 20. “We, the People."

As regards the phrase “We, the People," it would seem that little light can be obtained from its use, except to fix the fact, which no one has attempted to deny, that the new government derived its right to be from the consent of the people who were to be controlled by it. But whether by “We, the People ” was meant all the people of the ratifying States considered as one body politic, or whether it referred to the people as organized in several commonwealth communities, it is, so far as this language is concerned, impossible to say.

The framers of the Constitution of the Southern Confederacy avoided this ambiguity by declaring in the Preamble: “We, the People of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice

do ordain and establish this Constitution for the Confederate States of · America."

Commenting upon this change in phraseology, Pomeroy says: “ Thus have the opponents of our nationality by their most

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37 Commentaries, Š 459.

solemn and deliberate act conceded the correctness of the construction which has been placed [by the Northern States] upon this utterance of the sovereign people of the United States.” 38 This is by no means a correct deduction. It was quite proper that the framers of the Confederate Constitution should, without conceding the correctness of the construction of their opponents, from an abundance of caution, use language which no one could misconstrue. In Martin v. Hunter's Lessee39 Justice Story says:

The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by the people of the United States. So far from saying that it is established by the governments of the several States, it does not even say that it is established by the people of the several States, but it pronounces that it is established by the people of the United States in the aggregate.

Words cannot be plainer than the words used.”

This last statement is certainly extreme. It is indeed made plain that the Constitution is not ratified by the Governments of the individual States, but it is not clearly indicated whether the ratifying parties are to be considered singly or as a composite whole. And in contradiction to the fact that a single political whole was meant is the fact that in ratifying the Constitution the people did vote by States. 40

The only way by which the force of this fact is avoided is by the proposition that the ratifying state conventions acted ad hoc as agents of a single united people. But this argument is greatly weakened, if not absolutely destroyed, by the fact that only those States were to be considered members of the new Union whose respective people, acting in convention, should ratify the Constitution.

33 Constitutional Law, $ 95. 391 Wh. 304; 4 L. ed. 97.

40 The fact that the States are not, as in the Articles of Confederation, mentioned, individually, by name, is of no significance for the reason that they coulil not be so mentioned because it could not be known in advance which of the States would ratify.

The use of the phrase “ We, the People of the United States ” as indicating the ordainers and establishers of the Union, is, however, of significance in determining the nature of the Union that was intended to be created when taken in connection with the provision of Article VII that the Constitution is to be ratified, not by the state legislatures, but in conventions, for it indicates that the Union was one that the state legislatures were not competent to create; that, in other words, it was to be not a mere league or confederacy, such as the existing state governments might enter into, but a fundamental Union resulting in the creation of a new National State which, according to the political philosophy of that date, only the people acting in their original sovereign capacity were able to create.

8 21. “Constitution."

The fact that the instrument of 1789 is termed a “Constituie tion” has by some been taken to indicate that a National State, and not a confederacy of States was intended to be created. Thus Webster in his reply to Hayne said: They (the people of the United States) undertook to form a general government which should stand on a new basis; not a confederacy, not a league, not a compact between States, but a Constitution.” And in his reply to Calhoun, he declared: Sir, I must say to the honorable gentleman that, in our American political grammar, Constitution is a noun substantive; it imparts a distinct and clear idea of itself; and it is not to be turned into a poor, ambiguous, senseless, unmeaning adjective, for the purpose of accommodating any new set of political notions.

By the Constitution we mean, not a 'constitutional compact,' but simply and directly the Constitution, the fundamental law; and if there be one word in the language which the people of the United States understand, it is that word.” And later he says: “ Does it call itself a compact ? Certainly not. Does it call itself a league, a confederacy, or subsisting treaty between the States ? Certainly not. But it declares itself a Constitution."

117 Wall. 700; 19 L. ed. 227.

equivalent to a grant to the General Government of all powers, the exercise of which tion of either of these ends.

By members of the school of Webster weight is also given to the fact that it is declared that the people of the United States “ do ordain, and establish” and not that they “ do contract " or enter into a treaty.”

The writer of this treatise is not disposed to ascribe much value to this argument of Webster based upon the use of the word “ Constitution.” At most it can only have a corroborating value. In the first place, it is by no means certain that the term had, in 1789, the definite technical meaning which Webster ascribes to it

. And, in the second place, and more significantly, the nature of the Union provided for by the Constitution is properly to be determined by the distribution of powers actually provided for by it, and not by the title that may have been given to it.

The description of the new federation in the Preamble as more perfect Union,” has occasionally been referred to as an argument of the complete sovereignty of the United States. For example, in Texas v. White,41 Chief Justice Chase, after referring to the fact that the Articles of Confederation had provided for a perpetual Union, says: “And when these articles were found to be inadequate to the exigencies of the country, the Constitution was ordained to form a more perfect Union. It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be more indissoluble if a perpetual Union, made more perfect, is not?” § 22. “Common Defense and General Welfare."

The declaration in the Preamble that the new Union is established for the common defense and general welfare, and the grant by Article I, Section 8, of the Constitution to Congress of the power" to levy and collect taxes, duties, imports, and excises, to pay the debts and provide for the common defense and general welfare of the United States," has at times been argued to be



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