Preamble: relevance to Environmental Law

Does the United States Constitution Provide Environmental Protection?

—The Obligations of the Federal Government —page 2

2) The Preamble has the same binding force upon the federal government as the substantive provisions of, and the amendments to, the Constitution.

Jacobson v. Mass., 197 US 11 (1904), is the only case in which the Supreme Court has directly addressed a claim based on the Preamble. In this case the court examined the Constitutional rights of Jacobson, and rejected his claim to a personal right, derived from then Preamble, to the "blessings of liberty". In rejecting Jacobson’s claim, the Court wrote that "the Preamble indicates the general purpose for which the people ordained and established the Constitution" and went on to point out that "[the Preamble] has never been regarded as the source of any substantive power conferred on the Government..." . They made no suggestion, and none should be made, that the Preamble should be accorded less weight, or is in any way less significant, than any other portion of the Constitution, nor did they suggest that the Preamble does not direct the government to pursue the goals that it proclaims. The Court simply said that Jacobson did not have a claim to individually benefit from government action. The Preambles lofty goals are not guaranteed to each individual, but rather to "ourselves and our Posterity" in the aggregate.

No suggestion of substantive government power derived from the Preamble is suggested by the statement that the Government is obligated to protect the interests of posterity. The Government must, when applying the substantive powers conferred in the Constitution, fully respect the Preamble’s statement of "general purpose". This leads, without implying substantive power conferred by the Preamble itself, to the conclusion that all substantive powers of the Government are subject to the Preamble’s indication that "We the people" act for "ourselves and our Posterity"

3) The Preamble’s directives are enforceable by the Federal Courts.

See Marbury v. Madison The Constitution is enforceable by the courts.

4) The Preamble directs the Federal Government to protect posterity.

There is a syntactical question to be resolved. How does "ourselves and our Posterity" fit into the one sentence Preamble? Does it relate to the entire sentence, or only a portion?

There are three ways to construe the list of objectives stated in the Preamble. All support a conclusion that the Constitution was intended to, and should be construed to, protect posterity. The three, ranked in order of plausibility, are:

a) The goals listed are all independent clauses, and should be parsed as: (form a more perfect union), (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 this construction, it is clear that "ourselves and our Posterity" applies to all objectives of the Constitution.

b) There is a set of goals stated as independent clauses, followed by a clause summarizing the preceding clauses: (form a more perfect union), (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 ), where the "blessings of liberty" serves to summarize the preceding goals. i.e.: the blessings of liberty are "common good" , "domestic tranquillity" etc. In this construction, all of the goals of the Constitution are summarized as "the blessings of liberty" and the "blessings of liberty" are to be secured for "ourselves and our Posterity". This would be equivalent to a restatement of the Preamble as: …form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure THESE blessings of liberty to ourselves and our posterity.

c) There is a set of goals stated as independent clauses, followed by a clause that stands on its own: (form a more perfect union), (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 this construction, only the "blessings of liberty" are to be secured for "ourselves and our Posterity", the other goals are thus left without stated beneficiaries.

In the first two constructions, it is clear that all of the Constitution’s directives and goals apply directly to "ourselves and our Posterity" and that all government action must thus be directed at "ourselves and our Posterity". In these two cases there is no need to explore just what is meant by "the blessings of liberty" . If "secure…. to ourselves and our Posterity" applies to the entire list of goals, it applies to all substantive powers of the government, and it is not necessary to determine which powers are controlled by which goal.

In the third case, only the "blessings of liberty" are specifically sought for "ourselves and our Posterity". In this case it is important to define the "blessings", as in this case only those government powers derived from substantive provisions of the Constitution relating to the "blessings" are constrained by the "ourselves and our Posterity" provision.

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