Week-end Wrap – Political Economy – July 05, 2026
by Tony Wikrent
UNhappy birthday, America
Reconsidering the Constitution’s Preamble: The Words that Made Us U.S. — University of Wisconsin Legal Studies Research Paper Series Paper No. 1718
David S. Schwartz, September 25, 2021 [37 Constitutional Commentary 2022]
[TW: I now refer to the GOP and its members as (anti)Republicans and the (anti)Republican Party, because they believe in a philosophy of governance that is repugnant to the original principles of civic republicanism on which USA was founded. The two major principles of civic republicanism are promoting the general welfare, and justice, as explained by Senator Charles Sumner in a speech on February 5 and 6, 1866, The Equal Rights of All: The Great Guaranty and Present Necessity, for the Sake of Security, and to Maintain a Republican Government; Speech in the Senate, on the proposed Amendment of the Constitution Fixing the Basis of Representation. (Here are excerpts.)
[(Anti)Republicans have openly and explicitly rejected the founding principle of promoting the general welfare. This rejection is centralt to their attacks on the “welfare state.” See Randall G. Holcombe’s 1992 article arguing that the major improvement of the Confederate Civil War constitution was the elimination of the General Welfare mandate. Holcombe served on Florida Governor Jeb Bush’s Council of Economic Advisors in Bush’s 2016 presidential campaign. Also see Kentucky Sen. Rand Paul’s May, 2011 misinterpretation of James Madison, enumerated powers, and the General Welfare mandate.
[Recovering the meaning of the General Welfare Clause necessarily includes a rebuttal of conservative / neoconfederate / (anti)Federalist attempt rewrite the Constitution with their pet theories of constitutional originalism and enumerated powers.
[Until they were shocked by the Dobbs v. Jackson Women’s Health Organization in 2022, liberals and leaders of the Democratic Party have been blind to this reactionary project. Democrats and “the left” have committed a grievous error of omission by ignoring the historical record of the fight within USA between republicanism and oligarchy, and rejecting out of hand USA Constitutional law and political history as mere instruments of an oppressive and exploitative capitalist system tainted irremediably by slavery, racism and bigotry. This omission has crippled the ability of “the left” – not to mention the leadership of the Democratic Party – to comprehensively understand how thorough, insidious, and deadly the reactionary project is. They mistakenly believed liberalism was a derivative of civic republicanism instead of seeing how much of liberalism — with its emphasis on “private property” and “individual liberty” — was shaped as an oligarchical response to civic republicanism and the rise of the American republic. Thus they were disastrously outflanked by the Rehnquist / Scalia / Thomas assault on the law and persistent undermining of the principles of civic republicanism.
[Nevertheless, some constitutional scholars and historians — such as those listed in the excerpts below — were quite aware of the reactionary assault on the USA justice system, and working to correct a historical record that had been hijacked by the conservative / neoconfederate / (anti)Federalist project. The liberal / Democratic / “left” response to “the right” is bound to fail until it incorporates the work of these constitutional scholars and historians.
[Conservatives and originalists dismiss the Preamble to the U.S. Constitution as a “stylistic flourish with no operative legal significance,” but “the drafting history of the Preamble, observable by comparing the preambles in the Articles of Confederation, the Committee of Detail draft of the Constitution, and the Committee of Style’s final version, demonstrate that the Framers considered the Preamble to be substantively meaningful.” There is room to debate the exact meaning of the Preamble — “it might be viewed as a rejection of compact theory, as an interpretive guide to the powers granted in the body of the Constitution, or as a source of implied powers.” But concluding that the Preamble is “a legally inoperative flourish has no basis as a matter of text or history.”
[In his 1833 three-volume Commentaries on the Constitution of the United States — long considered the most through and faithful exposition of Constitutional interpretation — Justice Joseph Story wrote that while the Preamble does not confer any “substantive power” on the national government, it does “expound the nature, and extent, and application of the powers actually conferred by the
constitution,” and should be used as a guide to interpreting the Constitution when “the terms of a given power admit of two constructions, the one more restrictive, the other more liberal.” Further, interpretation should be “governed by the intent of the power;” that is, Constitutional interpretation of federal powers should “promote” and not restrict — Story uses the word “defeat”” — that power. Schwartz writes,
“For Story, then, the preamble is an argument against strict construction of federal powers: a statement that the Constitution’s grants of powers are to be liberally construed, to promote such things as “the general welfare.”
[This is, of course, the exact opposite of the doctrines of conservatives and originalists such as William Rehnquist, Antonin Scalia, Clarence Thomas, and Samuel Alito, not to mention the entire (anti)Federalist Society. Schwartz makes the important point that
The argument that the preamble meant nothing more than a stylistic flourish … was highly congenial to compact theorists, nullifiers, and secessionists.
[We have seen this throughout American history: the “domestic enemies” of the Constitution have tried repeatedly to have the Constitution reinterpreted in ways that limit and even abrogate the powers of the national government. Today, the “domestic enemies” of the Constitution want to dismantle “the administrative state” and allow “free enterprise” and “private property” free reign to foul our environment, alter our climate, exploit our labor, limit our economic prospects, mute our political participation, and surveil our lives.
[Schwartz ends by noting that at the time of ratification, the Anti-Federalists fully understood that the grand objectives proclaimed in the Preamble meant that the federal government was not at all strictly limited in its powers, but pointed to an expansive realm of implied powers, as Treasury Secretary Alexander Hamilton would argue in his February 1791 report to President Washington on the constitutionality of establishing a national bank.
[Schwartz writes,
The Framers felt they had to clarify that the new government was a truly national government, and moreover, one based on republican principles—that is, authorized by the sovereign people, not by a grand interstate compact.
Significantly, nothing in the Preamble makes “limited enumerated powers” an object, or—pace Madison—an essential characteristic of the national government. The preamble does not list “federalism,” or “state sovereignty” or “balancing national powers with the rights of the states” among its great objects. [p. 10] ….
Federalists and Anti-Federalists during the ratification debates and early republic both understood the Preamble “as reinforcing a theory of sovereignty and national union that expanded the scope of national power, beyond either those powers that were enumerated or those powers that might be aggregated from that enumeration.” This nationalist reading, channeling the constitutional vision most acutely expressed by James Wilson, was thus a prominent reading—although so read with horror by Anti-Federalists—as Federalists in the early post-ratification years argued that the Preamble was indeed a legitimate source of implied powers. [pp. 11-12]
[There is plenty of history that clearly demonstrates the wild inaccuracy of “originalist” interpretation: Hamilton’s reports, Justice James Wilson’s law lectures in the first years of the republic [and it was actually Wilson who wrote most of the Constitution; Madison is better known because he took notes on the proceedings and later became President], Justice Story’s Commentaries, and more. Never forget that yhe Southern slaveholders insisted the slave states were the true republics in their time. Failure to understand what a republic really is at that time, and repudiate the slaveholders accordingly, led to civil war. ]
