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the force of single words, as philologists or critics, and not whole clauses and objects, as statesmen and practical reasoners. And yet nothing has been more common than to subject the Constitution to this narrow and mischievous criticism. Men of ingenious and subtle minds, who seek for symmetry and harmony in language, having found in the Constitution a word used in some sense which falls in with their favorite theory of interpreting it, have made that the standard by which to measure its use in every other part of the instrument. They have thus stretched it, as it were, on the bed of Procrustos, lopping off its incaning when it seemed too large for their purposes, and extending it when it scemed too short. They have thus distorted it to the most unnatural shapes, and crippled where they have sought only to adjust its proportions according to their own opinions. It was very justly observed by Mr. Chief Justice Marshall, in The Cherokee Nation v. The State of Georgia, 1 that "it has been said that the same words have not necessarily the same meaning attached to them when found in different parts of the same instrument. Their meaning is controlled by the context. This is undoubtedly true. In common language the same word has various meanings, and the peculiar sense in which it is used in any sentence is to be determined by the context." A very easy example of this sort will be found in the use of the word “establish,” which is found in various places in the Constitution. Thus, in the preamble, one object of the Constitution is avowed to be “to establish justice,” which seems here to mean to settle firmly, to fix unalterably, or rather, perhaps, as justice, abstractly considered, must be considered as forever fixed and unalterable, to dispense or administer justice. Again, the Constitution declares that Congress shall have power “to establish an uniform rule of naturalization and uniform laws on the subject of bankruptcies,” where it is manifestly used as equivalent to make, or form, and not to fix or settle unalterably and forever. Again, “ Congress shall have power to establish post-offices and post-roads,” where the appropriate sense would seem to be to create, to found, and to regulate, not so much with a view to permanence of form as to convenience of action. Again, it is declared that “Congress shall make no law respecting an establishment of religion,” which seems to prohibit any laws which shall recognize, found,
1 5 Peters's Rep. 1, 19.
confirm, or patronize any particular religion, or form of religion, whether permanent or temporary, whether already existing or to arise in future. In this clause, establishment seems equivalent in meaning to settlement, recognition, or support. And again, in the preamble, it is said, “We the people, &c., do ordain and establish this Constitution," &c., where the most appropriate sense seems to be to create, to ratify, and to confirm. So the word “ State” will be found used in the Constitution in all the various senses to which we have before alluded. It sometimes means the separate sections of territory occupied by the political societies within cach; sometimes the particular governments established by these societies; sometimes these societies as organized into these particular governments; and, lastly, sometimes the people composing these political societies in their highest sovereign capacity. 1
§ 455. XIX. But tho most important rule in cases of this nature is, that a constitution of government does not, and cannot, from its nature, depend in any great degree upon mere verbal criticism, or upon the import of single words. Such criticism may not be wholly without uso; it may sometimes illustrate or unfold the appropriato sense; but unless it stands well with the context and subject-matter, it must yield to the latter. While, then, we may well resort to the meaning of single words to assist our inquiries, we should never forget that it is an instrument of government we are to construe; and, as has been already stated, that must be the truest exposition which best harmonizes with its design, its objects, and its general structure.(a)
§ 456. The remark of Mr. Burke may, with a very slight change of phrase, be addressed as an admonition to all those who are called upon to frame or to interpret a constitution. Government is a practical thing made for the happiness of mankind, and not to furnish out a spectacle of uniformity to gratify the schemes of visionary politicians. The business of those who are called to administer it is to rule, and not to wrangle. It would be a poor compensation that one had triumphed in a dis
1 Mr. Madison's Virginia Report, January 7, 1800, p. 5; ante, § 208, p. 193. 2 See Vattel, B. 2, ch. 17, SS 285, 286.
(a) See Henshaw v. Foster, 9 Pick. 316, for forcible remarks on this subject by Chief Justice Parker.
pute whilst we had lost an empire; that we had frittered down a power, and at the same time had destroyed the Republic. (a)
1 Burke's Letter to the Sheriffs of Bristol in 1777.
(a) We must not then confine the pow state of the community and at the same ers of the federal State within the limits time capable of being expanded to embrace of a narrow and partisan construction. more extensive relations, should not be re“We are to suppose that those who are strained to their more obvious and immedelegated to the great business of distrib- diate sense, if, consistently with the uting the powers which einanated from the general object of the authors and the true sovereignty of the people, and to the estab- principles of tho compact, they can be ex. lishment of rules for the perpetual security tended to other relations and circumstances of the rights of person and property, had which an improved state of society may the wisdom to adapt their language to fu- produce.” Henshaw v. Foster, 9 Pick. ture as well as existing emergencies ; so 317, per Parker, Ch. J. that words competent to the then existing
§ 457. Having disposed of these preliminary inquiries, we are now arrived at that part of our labors which involves a commentary upon the actual provisions of the Constitution of the United States. It is proposed to take up the successive clauses in the order in which they stand in the instrument itself, so that the exposition may naturally flow from the terms of the text.
§ 458. We begin then with the preamble of the Constitution. It is in the following words :
“We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and cstablish this Constitution for the United States of America.”
§ 459. The importance of examining the preamble, for the purpose of expounding the language of a statute, has been long felt, and universally conceded in all juridical discussions. It is an adınitted maxim in the ordinary course of the administration of justice, that 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. We find it laid down in some of our earliest authorities in the common law, and civilians are accustomed to a similar expression, cessante legis præmio, cessat et ipsa lex.? Probably it has a foundation in the expression of every code of written law, from the universal principle of interpretation, that the will and intention of the legislature are to be regarded and followed. It is properly resorted to where doubts or ambiguities arise upon the words of the enacting part; for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the preamble.
1 Bac. Abridg. Statute I. ; 2 Plowden, R. 369 ; 1 Inst. 79.
§ 460. There does not seem any reason why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble. And accordingly we find that it has been constantly referred to by statesmen and jurists to aid them in the exposition of its provisions.
§ 461. The language of the preamble of the Constitution was probably in a good measure drawn from that of the third article of the confederation, which declared that “The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare.” And we accordingly find that the first resolution proposed in the convention which framed the Constitution was, that the Articles of the Confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution, namely, common defence, security of liberty, and general welfare.?
$ 462. And here we must guard ourselves against an error which is too often allowed to creep into the discussions upon this subject. The preamble never can be resorted to to enlarge the powers consided to the general government or any of its departmcnts. It cannot confor any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. Its true office is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, “to provide for the common defence." No onc can doubt that this does not enlarge the powers of Congress to pass any mcasures which they may decm useful for the common defence. 3 But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one would promote and the other defeat the common defence, ought not the former, upon
I See Chisholm v. Georgia, Chief Justice Jay's opinion, 2 Dall. 419. 2 Journal of Convention, 67 ; Id. 88.
9 Yet, strangely enough, this objection was urged very strenuously against the adoption of the Constitution. 1 Elliot's Debates, 293, 300.