The Preamble in Constitutional Interpretation

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The preamble in constitutional
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interpretation
Liav Orgad*
From Plato’s Laws through common law and until modern legal systems, preambles to con-
stitutions have played an important role in law and policy making. Through a qualitative
analysis of the legal status of preambles in different common law and civil law countries, the
article highlights a recent trend in comparative constitutional law: the growing use of pre-
ambles in constitutional adjudication and constitutional design. The article also explores the
theory of preambles and their functions. It examines the legal status of the U.S. preamble and
shows how the U.S. preamble remains the most neglected section in American constitutional
theory. The article then presents a typology for determining the legal status of preambles: a
symbolic preamble, an interpretive preamble, and a substantive preamble. While focusing on
Macedonia, Israel, Australia, and the Treaty of Lisbon, the article discusses the sociological
function of preambles in top-down and bottom-up constitutional designs.
1. Introduction
The preamble to the United States Constitution has become a legend. The phrase “We
the people of the United States” and the remaining forty-five words of the preamble
are the most well-known part of the Constitution, and the section that has had the
greatest effect on the constitutions of other countries. And yet, the preamble remains
a neglected subject in the study of American constitutional theory and receives scant
attention in the literature. Questions such as: what is a preamble to a constitution?;
what role does it play in constitutional adjudication and constitutional design?;
and why do states add a preamble to the constitution? have been seldom asked or
answered.
* Radzyner School of Law, The Interdisciplinary Center Herzliya. For valuable comments and suggestions,
I thank Mattias Kumm, Sandy Levinson, Barak Medina, Amnon Rubinstein, Adam Shinar, Anna Su, and
Mark Tushnet. The article was presented at the W. G. Hart Legal Workshop on “Comparative Aspects on
Constitutions: Theory and Practice” in the Institute of Advanced Legal Studies in London; I thank the
organizers and participants for their comments. Email: [email protected].
I•CON (2010), Vol. 8 No. 4, 714–738 doi: 10.1093/icon/mor010

The preamble in constitutional interpretation 715
This article highlights the legal and social functions of preambles. First, it discusses
the growing use of preambles in constitutional interpretation. In many countries,
the preamble has been used, increasingly, to constitutionalize unenumerated rights.
A global survey of the function of preambles shows a growing trend toward its hav-
ing greater binding force—either independently, as a substantive source of rights, or
combined with other constitutional provisions, or as a guide for constitutional inter-
pretation. The courts rely, more and more, on preambles as sources of law. While in
some countries this development is not new and dates back several decades, in others
it is a recent development. From a global perspective, the U.S. preamble, which gen-
erally does not enjoy binding legal status, remains the exception rather than the rule.
Second, the article discusses one of the interesting merits of a preamble: its integra-
tive power. A preamble is the part of the constitution that best reflects the constitutional
understandings of the framers, what Carl Schmitt calls the “fundamental political deci-
sions.” Its terms, thus, have far-reaching social effects. Consequently, preambles re-
cently have been added or amended in some countries either due to a popular demand
(a bottom-up change) or because of a government-led constitutional design (a top-
down change). The article illustrates the potential of a consensual preamble to unite,
or a disputable preamble to divide, a people. It emphasizes the sociological reason why
it is necessary to carefully consider what is written in the text of the preamble, in par-
ticular, in those cases in which the preamble is granted binding legal force.
Section 1 explains the concept of preamble based on qualitative research of the
preambles in fifty common law and civil law countries. Section 2 traces the origins
of the U.S. preamble and its legal status. Section 3 presents a typology of three legal
functions of preambles: the ceremonial-symbolic, in which the preamble serves
to consolidate national identity but lacks binding legal force; the interpretive, in
which the preamble is granted a guiding role in statutory and constitutional in-
terpretation; and the substantive, in which the preamble serves as an independent
source for constitutional rights. Section 4 demonstrates the importance of con-
sensual preambles, sketches the risks inherent in nonconsensual preambles, and
describes the benefits and disadvantages in the process of designing a preamble.
Focusing on Macedonia, Israel, Australia, and the Treaty of Lisbon, the article exam-
ines the social function of preambles in top-down and bottom-up designs and suggests
some lessons for a future design of a preamble.
2. How to talk about preambles

What is a preamble to a constitution and how can it be classified? In formal terms,
a preamble constitutes the introduction to the constitution and usually bears the
formal heading “Preamble” or some alternative, equivalent title,1 while in other cases
it appears without a heading. The formal classification provides a simple and technical

1
The preamble to the constitutions of Albania and Bahrain is called “Foreword.” The preamble to the
Constitution of Japan is called “Preface.”
716 I•CON 8 (2010), 714–738
identification of a preamble. Alongside a formal classification, it is possible to identify

a preamble through its content. In substantive terms, a preamble does not require a
specific location in the constitution but, rather, specific content.2 It presents the his-
tory behind the constitution’s enactment, as well as the nation’s core principles and
values.3
Analysis of a nonrepresentative sample of fifty democratic countries revealed that
most have included a formal preamble in their constitutions:4 thirty-seven countries
have a preamble (74 percent)5 while thirteen countries do not (26 percent).6 Countries
that do not have a formal preamble often include introductory articles that may be
regarded, in substantive terms, as a preamble.7 A preamble is, thus, a common constitu-
tional feature. Moreover, most of the countries that have adopted a constitution in re-
cent years, particularly in Eastern and Central Europe, have included a preamble.
The content of preambles can be classified into five categories.
The Sovereign. Most preambles specify the source of sovereignty. In some cases, sov-
ereign power rests with the people (“we the people of . . .”).8 This is a relatively neutral
term with which most of the population can usually identify. Another phrase relates
to the source of sovereignty as stemming from a particular nation (the “Lithuanian
Nation,” the “Spanish Nation,” and the like). This terminology emphasizes a specific
national group and is less neutral.9 Some preambles combine a reference to the people

2
The Charter of the United Nations, for example, has a formal preamble and a substantive preamble; the
latter appears in chapter I of the Charter. See Hans Kelsen, The Preamble of the Charter—a Critical Analysis,
8(2) J. Pol. 134 (1946).

3
Another form of a preamble may be a declaration of independence, which, although not formally part of
a constitution, may have some of the substantive elements of a preamble. Unless otherwise mentioned,
the article does not discuss the declaration of independence as a form of a substantive preamble.

4
Constitution defined here as a group of binding fundamental principles characterizing a state or society
on a permanent basis. Therefore, a constitution could be either a formal document or substantive legal
norms a society refers to as a binding constitution. See, e.g., A.V. Dicey, Introduction to the Study of the Law
of the Constitution 22 (8th ed., 1915).
5
States that have a preamble to their constitution are Andorra, Albania, Argentina, Australia, Bosnia-
Herzegovina, Brazil, Bulgaria, Canada, Croatia, the Czech Republic, Estonia, France, Germany, Greece,
Hong Kong, Hungary, India, Ireland, Japan, Lithuania, Macedonia, Montenegro, New Zealand, Para-
guay, Poland, Portugal, Philippines, Russia, South Africa, Spain, Serbia, Slovakia, Slovenia, Switzerland,
Turkey, Ukraine, and the United States. All the preambles’ phrasings were taken from the International
Constitutional Law Project Information, available at http://www.servat.unibe.ch/icl/.
6
States that do not have a formal preamble to their constitutions are Austria, Belgium, Cyprus, Denmark,
Finland, Italy, Latvia, Luxembourg, the Netherlands, Norway, Romania, Singapore, and Sweden.
7
This is the case of Denmark (arts. 1–4), Italy (arts. 1–3), Norway (art. 1), Romania (art. I), and Sweden
(arts. 1–2). Therefore, it emerges that only eight of the surveyed states (16 percent) do not have a pre-
amble to their constitution, either in a formal or a substantive sense.

8
This is the case in Albania, Estonia, France, Japan, India, Ireland, the Philippines, South Africa, the United
States, and the Czech Republic (in the latter, the reference is to the “citizens”—“We, the citizens of the
Czech Republic”). In Russia, the reference is to “We, the multinational people of the Russian federation.”
9
It is not surprising that some preambles refer to the citizens of all national origins. See, e.g., the preamble
to the Constitution of Bosnia-Herzegovina (“Bosnians, Croats and Serbs, as constituent peoples [along
with others], and citizens of Bosnia and Herzegovina”), Poland (“We, the Polish Nation—all citizens of
the Republic”), Slovakia (“the Slovak nation . . . that is, we, citizens of all Slovak republic”), and Ukraine
(“The Verkhovna Rada of Ukraine, on behalf of the Ukrainian people—citizens of Ukraine of all nationalities”).
with a reference to representative bodies; others refer only to representative bodies;

while others make no reference to a sovereign authority. In federations and unions,
the preamble often identifies the constituent states—and their peoples—as the source
of sovereignty.10
Historical Narratives. Preambles include, typically, historical narratives of a state,
a nation, or a people, telling specific stories that are rooted in language, heritage,
and tradition. These stories shape the common identity (“we”). The reference is
often to past events that influenced the establishment of the state. The South Afri-
can preamble, for example, declares that the people of South Africa “recognise the
injustices of our past,” and “honour those who suffered for justice and freedom in
our land.” The preamble to the Chinese Constitution notes that “China is one of
the countries with the longest histories in the world” and details, at great length,
Chinese history and the nation’s achievements. The Turkish preamble mentions
that the Turkish Constitution is established “in line with the concept of nationalism
outlined and the reforms and principles” introduced by the republic’s founder Ata-
türk. In Eastern and Central Europe—in countries such as Croatia, Estonia, Slovakia,
Slovenia, and Ukraine—the preambles celebrate the nations’ struggles for independ-
ence and self-determination.
Supreme Goals. Preambles often outline a society’s fundamental goals. These may
be universal objectives, such as the advancement of justice, fraternity, and human
rights; economic goals, such as nurturing a socialist agenda or advancing a free
market economy; or others, such as maintaining the union.11 These goals tend to be
abstract ideas, such as happiness or well-being. The preamble to the Constitution of
Japan, for instance, is peace-loving (“never again shall we be visited with the horrors
of war . . . desire peace for all time”), while the preambles to the Constitutions of the
Philippines and of Turkey stress love.
National Identity. Preambles usually contain statements about the national creed.
Understanding the constitutional faith of each country, and its constitutional phil-
osophy, cannot be complete without reading its preamble. Frequently, preambles in-
clude an additional element about future aspirations and may include a commitment
to resolve disputes by peaceful means, to abide by the principles of the UN Charter,
or to further national aspirations as stated in a declaration of independence.12 These
statements often refer to inalienable rights, such as liberty or human dignity.
God or Religion. A preamble may include references to God. Some preambles
emphasize God’s supremacy, such as the preambles to the Canadian Charter (“the
10
See the preamble to the Constitution of Australia (“The people of New South Wales, Victoria, South Aus-
tralia, Queensland, and Tasmania . . . have agreed to unite in one indissoluble Federal Commonwealth”),
and Switzerland (“We, the Swiss People and the Cantons”; emphasis is in original).
11
Preambles that explicitly set a socialist agenda appear in Bulgaria, China, Cuba, India, Laos, Ukraine, and
Vietnam. An example of a preamble declaring a quasi-capitalistic character appears in the Constitution
of Bosnia-Herzegovina.
12
See, respectively, the preambles to the constitutions of Brazil, Bosnia-Herzegovina, and Armenia.
718 I•CON 8 (2010), 714–738
supremacy of God”) or the Swiss Constitution (“in the Name of Almighty God”).13
Other preambles refer to a religion: the Greek preamble refers to the Holy Trinity;14 in
the Irish preamble, the Holy Trinity is mentioned as “our final end” and a source of
authority toward which all actions of “men and states must be referred.”15 Conversely,
the preamble may emphasize the separation of state and religion or the state’s secular
character.16
While common characteristics can be identified, each preamble has its own distin-
guishing features. Preambles come in various lengths,17 harmonize with or contradict
the body of the constitution, and may be enacted together with the body of the consti-
tution as well as in a later constitutional moment.
3. The American preamble

One of the greatest contributions of the United States to the world is the U.S. Constitu-
tion, and, perhaps, the most influential section of the U.S. Constitution is its preamble.
It is, therefore, particularly interesting to trace its origins and legal status. The current
preamble is different from the original introduced in 1787 at the Philadelphia Con-
vention. The original preamble did not include the famous phrase “We the people of
the United States” but, rather, designated the states as the source of authority; also,
it did not specify the Constitution’s objectives. The original preamble stated, simply,
that: “We the people of the States of New-Hampshire, Massachusetts, Rhode-Island
and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania,
Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do or-
dain, declare, and establish the following Constitution for the Government of Our-
selves and our Posterity.”18 The text was changed by the Committee of Style, whose
members were William Samuel Johnson, Alexander Hamilton, Gouverneur Morris,
James Madison, and Rufus King.19 However, there is no historical record of the draft-
ing process of the preamble, or the reasons for the changes made by the Committee of
Style.
13
See also the preamble to the Constitution of South Africa (“May god protect our people . . . God bless South
Africa”), Germany (“Conscious of their responsibility before God and men”), and Argentina (“Invoking
the protection of God, source of all reason and justice”). An interesting wording style appears in the Pol-
ish Constitution (“Both those who believe in God as the source of truth, justice, good and beauty, as well
as those not sharing such faith but respecting those universal values as arising from other sources”).
14
The Greek preamble states: “In the name of the Holy and Consubstantial and Indivisible Trinity, the Fifth
Constitutional Assembly of Greece votes.”
15
The Irish preamble also notes: “We, the people of Ireland, humbly acknowledging all our obligations to
our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial.”
16
See the preamble to the Constitution of Turkey and India. Interestingly, all states’ constitutions in the Unit-
ed States include, or included in the past, an explicit reference to God. See 50 out of 50 States Recognize
God’s Role, available at http://dubyanell.blogspot.com/2004/04/this-just-in-50-out-of-50-states.html.
17
Examples of long preambles include the constitutions of China, Croatia, Egypt, Iran, Pakistan, Serbia,
Syria, Thailand, Turkey, and Vietnam. Examples of terse preambles include the constitutions of Canada,
France, Greece, India, Switzerland, and the United States.
18
See The Records of the Federal Convention of 1787 177 (Max Farrand ed., vol. II, 1937).
19
Id., at 590, 651; Robert J. Peaslee, Our National Constitution: The Preamble, 9 B.U. L. Rev. 2 (1929).
The framers of the American Constitution were well aware of other forms of pre-
ambles. The Petition of Rights of 1628, the Habeas Corpus Act of 1679, the Bill of
Rights of 1689, the Act of Settlement of 1701, the Articles of Confederation of 1777,
and some state constitutions—all preceded the U.S. Constitution and set the pattern
for the U.S. preamble. The question remains: Why was the preamble needed in the
first place? During the Philadelphia Convention, Edmund Randolph argued for the
inclusion of a preamble: “a Preamble seems proper,” he said, but “not for the purpose
of designating the ends of government and human polities.”20 This form of preamble,
which Randolph referred to as a “display of theory,” was not necessary in his view. A
preamble “is unfit here; since we are not working on the natural rights of men not yet
gathered into society, but upon those rights, modified by society, and interwoven with
what we call the rights of states.”21 For Randolph, a preamble was essential as a state-
ment of the reasons for accepting the Constitution: “the object of our preamble ought
to be briefly to declare, that the present foederal government is insufficient to the gen-
eral happiness [and] that the conviction of this fact gave birth to this convention.”22
The preamble refers to the people as the source of authority23 and outlines six lofty
goals: “To form a more perfect Union, establish Justice, insure domestic Tranquility,
provide for the common defense, promote the general Welfare; and secure the Blessings
of Liberty.” Despite its central role in education and in the public debate, courts have
rarely been inclined to rely upon the preamble only rarely. Empirical studies show that
from 1825 to 1990, the sections of the preamble that refer to justice, general welfare,
and liberty were independently mentioned by Supreme Court justices only twenty-
four times, mostly in dissenting opinions (83.3 percent of all references), while only
four justices (Black, Douglas, Burton, and Field) were collectively responsible for half
of those references.24 Courts have rejected, repeatedly, the argument that constitu-
tional rights or limitations can be inferred directly from the preamble. The classic
case establishing its nonbinding nature was decided in 1905. In this case, a convicted
defendant challenged the constitutionality of a statute adopted by the state of
Massachusetts that, in his view, contradicted rights protected by the preamble.
Rejecting this argument, Justice Harlan noted:
Although that Preamble indicates the general purposes for which the people ordained and
established the Constitution, it has never been regarded as the source of any substantive power
conferred on the Government of the United States, or on any of its Departments. Such powers
embrace only those expressly granted in the body of the Constitution, and as such as may be
implied from those so granted.25
20
See Supplement to Max Farrand’s Records of the Federal Convention of 1787 183 (James H. Hutson ed.,
1987) (hereinafter Supplement to Max Farrand).
21
Id. (emphasis is in original).
22
Id.
23
For an historical review, see Morris D. Forkosch, Who Are the “People” in the Preamble to the Constitution?,
19 Case. W. Res. L. Rev. 644 (1967–1968).
24
See Milton Handler, Brian Leiter & Carole E. Handler, A Reconsideration of the Relevance and Materiality of
the Preamble in Constitutional Interpretation, 12 Cardozo L. Rev. 117, 120–121, fn 14 (1990–1991).
25
See Jacobson v. Massachusetts, 197 U.S. 11, 13–14 (1905).
720 I•CON 8 (2010), 714–738
Justice Harlan stripped the preamble of any legal force without providing any his-
torical evidence or textual explanations. While he noted that individuals have no
constitutional rights derived directly from the preamble, he neither stated, expressly,
that the preamble has less significance than other constitutional provisions nor did
he assert that it does not form a binding part of the Constitution. Yet, evidence sug-
gests that the framers anticipated the role the preamble would play in constitutional
interpretation.26 Alexander Hamilton even stated that the Bill of Rights was not ne-
cessary since the preamble was able to function as one.27 Joseph Story argued that the
preamble “is a key to open[ing] the mind of the makers, as to the mischiefs, which are
to be remedied, and the objects, which are to be accomplished.”28 James Monroe , simi-
larly, stated that the preamble is “the Key of the Constitution. Whenever federal power
is exercised, contrary to the spirit breathed by this introduction, it will be unconstitu-
tionally exercised and ought to be resisted.”29 These views, however, were not shared
by everyone, and a dispute arose over the preamble’s role. James Madison, for one,
expressed his reservations about the preamble’s power. “The general terms or phrases
used in the introductory propositions,” he said, “were never meant to be inserted in
their loose form in the text of the Constitution.”30 A debate started over whether and in
what manner the Constitution’s preamble should be used by the Court.31
Nevertheless, U.S. courts have invoked the preamble in constitutional interpret-
ation. Although the references are inconsistent, rhetorical, and far from conferring
independent constitutional rights, they still provide the preamble with some constitu-
tional weight. Courts have used the term “We the people” to define the boundaries of
the Constitution’s applicability,32 hold the powers of the federal government,33 indi-
cate that the people—and not the states—are the source of the federal government’s
power,34 challenge sovereign immunity,35 and define who is a citizen.36 Similarly, the
26
See William W. Crosskey, Politics and the Constitution in the History of the United states 365–366, 374–379
(1953); Eric M. Axler, The Power of the Preamble and the Ninth Amendment: the Restoration of the People’s
Unenumerated Rights, 24 Seton. Hall Legis. J. 431, 435–437 (1999–2000); Raymond Marcin, ‘Posterity’
in the Preamble and a Positivist Pro-Position, 38 Am. J. Juris 273, 281–288 (1993).
27
See The Federalist No. 84.
28
See Joseph Story, Commentaries on the Constitution of the United States 218–219 (1833). In Story’s view,
“there does not seem any reason why, in a fundamental law or constitution of government, an equal
attention should be not given to the intention of the framers, as stated in the preamble.” Id. Story assert-
ed, however, that “the preamble never can be resorted to, to enlarge the powers confided to the general
government, or any of its departments. It cannot confer any power per se . . . 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.” Id.
29
See James Monroe, The Writings of James Monroe 356 (vol. III, 1969).
30
Supplement to Max Farrand, supra note 20, at 313.
31
Id., at 132–145.
32
See United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).
33
See Chisholm v. Georgia, 2 U.S. 419, 465, 471 (1793).
34
See Downes v. Bidwell, 182 U.S. 244, 377–378 (1901).
35
See Employees v. Missouri Public Health Department, 411 U.S. 279, 322–323 (1973).
36
See Dred Scott v. Sanford, 60 U.S. 393, 404, 410–411 (1857).
phrase to “establish Justice” has been invoked to expand federal jurisdiction37 and to
support invalidation of legal tender legislation.38 The phrase to “provide for the com-
mon defense” has likewise been used to broaden congressional power39 and uphold
exclusion from citizenship.40 In addition to its interpretive role, the preamble exerts a
meaningful, although indirect, influence of congressional decision making.41
In spite of these references, the U.S. preamble is not, by and large, a decisive factor in
constitutional interpretation. Its relatively meager use in constitutional adjudication
has been criticized. “It is regrettable that law professors rarely teach and that courts
rarely cite the Preamble,” Sanford Levinson notes, as it is “the single most important
part of the Constitution.”42 For Levinson, the preamble is “the equivalent of our creedal
summary of America’s civil religion.”43 For Mark Tushnet, the “thin” Constitution of
the United States is anchored in the principles of the Declaration of Independence and
the preamble.44 Milton Handler, Brian Leiter, and Carole Handler charge the courts
with ignoring the preamble: “we can discern no reason why [its] rules of construction
should not obtain in the constitutional context.”45 They mention that disregard of the
preamble conflicts with the status of recital clauses of contracts, legislative declarations
of purpose in statutes, and preambles to international treaties46—all of which do guide
the court in judicial decision making.47 For them, the preamble ought to play a more
significant role in constitutional decisions.48 Other scholars have argued that courts
should accord the preamble legal force for the sake of future generations. In refer-
ring to Roe v. Wade, Raymond Marcin has claimed that the question of yet-to-be-born
descendants requires a solution that finds its foundation in the preamble—the bless-
ings of liberty for the people but also for posterity—which includes fetuses, as well.49
While the preamble is written in a manner that appeals to many, it remains difficult
to persuade jurists of its superior legal status.50 Although Justice Harlan stripped the pre-
amble of its legal force, its occasional use in constitutional adjudication indicates that
while it is not an independent source of rights neither is it constitutionally irrelevant.51
37
See Rhode Island v. Massachusetts, 37 U.S. 657, 730 (1838).
38
See Hepburn v. Griswold, 75 U.S. 603, 622–623 (1870).
39
See Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 860–862 (1984).
40
See Kennedy v. Mendoza-Matinez, 372 U.S. 144, 212–213 (1963).
41
See Peter W. Rodino, Jr., Living With The Preamble, 42 Rutgers L. Rev. 685 (1989–1990); Craig M. Lawson,
The Literary Force of the Preamble, 39 Mercer L. Rev. 879 (1987–1988).
42
See Sanford Levinson, Our Undemocratic Constitution 13 (2006) (emphasis is in original).
43
Id.
44
See Mark Tushnet, Taking the Constitution Away from the Courts 181–182, 188–193 (1999).
45
Handler, Leiter & Handler, supra note 24, at 123.
46
For the role of preambles in the interpretation of international treaties, see art. 31(2) of the Vienna
Convention on the Law of Treaties, 1155 U.N.T.S. 331 (1969).
47
Handler, Leiter & Handler, supra note 24, at 123–127.
48
Id., at 131–148.
49
Marcin, supra note 26, at 277–278.
50
The appropriate interpretation of preambles forms a point of disagreement in Heller. See District of Colum-
bia v. Heller, 128 S. Ct. 2783, 2789 n.3, 2826 (2008).
51
See Dan Himmelfarb, The Preamble in Constitutional Interpretation, 2 Seton Hall Const. L.J. 127, 160–166,
193–201 (1991–1992).
722 I•CON 8 (2010), 714–738
4. The legal status of preambles

The preamble has several functions. To begin with, it has an educational purpose:
it is one of the most significant sections of the constitution that is mentioned in edu-
cational and public arenas. Unlike the constitution—usually a very long document
including complex provisions—the preamble is relatively short and is written in a
more accessible language. Next, the preamble has an explanatory purpose: it serves
to specify the reasons for the constitution’s enactment, its raison d’être and eternal
ideals. In addition, the preamble has a formative purpose: it constitutes a political
resource for the consolidation of national identity and serves as a national “calling
card.” The preamble has a legal purpose as well. This section sketches a three-part
typology of preambles: a ceremonial preamble, an interpretive preamble, and a sub-
stantive preamble.52
4.1. Ceremonial-symbolic preamble

The concept of a ceremonial-symbolic preamble was first elaborated in Plato’s Laws.
The preamble, Plato asserted, is designed to convince the people why laws are morally
good. In Plato’s work, laws are intended to establish a self-controlled society; to that
end, laws need to be virtuous. This virtue is established in the preamble—the soul of
the law—which sets the tone for the people to freely comply with the law. It is a vehicle
by means of which the legislator “sells” legislation to the people. As Plato asserted:53
[j]ust as a “free” doctor explains the patient’s illness to him, and tries to make him understand
the reasons for the measures to be prescribed, in order to gain his co-operation, so the legislator
must explain and justify his laws. Hence every law must be headed by a preamble justifying
its provisions; further, the preamble must be rhetorical in character: it must not only instruct,
but persuade. Only if a man ignores the preambles, must the sanction of actual law be applied.
Plato’s notion of a preamble is meant to justify the law. A good preamble would
persuade the people to obey the law, not because of civil or criminal sanctions but be-
cause it is a good law. The purpose of the preamble is to mitigate the harshness of the
law; a law without a persuasive preamble is a “dictatorial prescription.” Plato’s pream-
bles use abstract terms and invoke poetic ideals.54 However, they are not regarded as
integral part of the law and do not create rights or have binding interpretative power.
The preamble of the U.S. Constitution is an example of Plato’s concept of a pre-
amble because it is persuasive, symbolic, and, generally, has no legal force. An opposite
example of a non–legally binding preamble, which has no persuasive power, is the
preamble to the Canadian Charter of Rights and Freedoms. The preamble declares
that Canada “is founded upon principles that recognize the supremacy of God and
52
The classification is not clear-cut, and some preambles fall into more than one category. In addition,
preambles differ in the meaning given to them by courts, not only in and of themselves.
53
See Plato, The Laws 137–145, 424–429 (Trevor J. Saunders ed., 2005).
54
See Kent Roach, The Uses and Audiences of Preambles in Legislation, 47 McGill L. J. 129, 138–140 (2001).
the rule of law.” Courts have not granted the Canadian preamble legal force,55 and
some scholars have opposed granting it any legal weight,56 inter alia because of the
alleged contradiction between the supremacy of God and the rule of law and because
the preamble contradicts some clauses of the Charter.57 Courts refer to the preamble
as a dead letter;58 others, describe it as perfunctory, restricting the liberties embodied
in the Charter and not intended for use even as an interpretative tool.59 Canada, thus,
is an example of a state in which the judiciary dissociates itself from the preamble.60
One reason might be that the preamble is short and lacks significant usable details.
Another reason might be that, unlike Plato’s preamble the preamble to the Can-
adian Charter has no persuasive value. In particular, it does not offer a persuasive
explanation for the unusual reference to the “supremacy of God.”61 Interestingly,
when the legal status of the preamble to the Constitution Act of 1867 was discussed,
the Canadian Supreme Court reached a different conclusion. In order to determine
whether the secession of Quebec was constitutionally valid, the Court analyzed that
preamble’s content to determine the fundamental values underlying the Canadian
Constitution.62
4.2. Interpretive preamble

The interpretive role of preambles is rooted in the common law tradition. Edward Coke
asserted that preambles to an act of parliament are a “good mean to find out the mean-
ing of the statute” and “the key to open understanding thereof”;63 they are “the key to
55
See R. v. Morgentaler, 1 S.C.R. 30, 178 (1988); Zylberberg v. Sudbury Board of Education, 65 O.R. (2d)
641, 657 (C.A.) (1988); R. v. Sharpe, B.C.J. No. 1555 (1999).
56
See Dale Gibson, The Law of the Charter: General Principles 65 (1986); Peter W. Hogg, Canada Act 1982
Annotated 9 (1982).
57
It was argued that the term “supremacy of God” contradicts Canada’s being a “free and democratic society”
(art. I of the Charter), the right to freedom of religion (art. 2[a]), and the rule of law (the preamble).
58
Sharpe, B.C.J. No. 1555, at 78–80.
59
Gibson, supra note 56, at 65–66.
60
See Lorne Sossin, The ‘Supremacy of God’, Human Dignity and the Charter of Rights and Freedoms, 52 U.N.B.
L.J. 227 (2003).
61
Some scholars made a case for a more binding preamble by arguing that the term “supremacy of God”
does not mean religion but indicates a more fundamental principle according to which some rights are
inalienable and derive from a source beyond state’s power. See David M. Brown, Freedom From or Freedom
For? Religion as a Case Study in Defining the Content of Charter Rights, U.B.C. L. Rev. Soc. 551, 560–563,
615 (2000); Jonathon Penney & Robert J. Danay, The Embarrassing Preamble? Understanding the Suprem-
acy of God and the Charter, 39(2) U.B.C. L. Rev. 287 (2006).
62
See Reference re Secession of Quebec [1998] 2.S.C.R. 217, at para 51–54 (“The principles [of the Pre-
amble] dictate major elements of the architecture of the Constitution itself and are as such its lifeblood.
The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the
scope of rights and obligations, and the role of our political institutions . . . the principles are not merely
descriptive, but are also invested with a powerful normative force, and are binding upon both courts and
governments”). See also Reference re Remuneration of Judges of the Provincial Court, [1998] 1 S.C.R, at
para 95.
63
See Edward Coke, Institutes of the Laws of England 79 (1628).
724 I•CON 8 (2010), 714–738
the statute and the key to the makers.”64 William Blackstone referred to preambles as
intended “to help the construction of an act of parliament.”65 Blackstone noted that
whenever the statute is dubious, “the proem, or preamble, is often called in to help
the construction of an act of parliament.”66 However, in a case of conflict between the
preamble and the body of the act, the body of the act prevails.67 This is still considered
good law in common law states.68 Some have a specific clause indicating the signifi-
cant role of preambles in statutory interpretation.69
This common law rule remains effective on the constitutional level in states in
which the constitution’s preamble embodies a guiding framework for constitutional
interpretation. When several interpretations exist, courts prefer the option consonant
with the preamble. For example, section 39 to the South African Constitution declares
that, when interpreting the Bill of Rights, the courts “must promote the values that
underlie an open and democratic society based on human dignity, equality and
freedom”—words that appear in the preamble.70 South Africa’s Constitutional Court
has confirmed the preamble’s status as a guide when interpreting the Bill of Rights.
While the preamble is not an independent source of rights, it is an inspiration for those
rights.71 In Ireland, similarly, the courts have been invoking the preamble to interpret
the Irish Constitution, and as a tool to guide in understanding its spirit.72 A proposal to
amend the preamble by adopting a nonjusticiable preamble, offered by a Constitution
Review Group, was rejected.73
The use of preambles as a tool in constitutional interpretation is common in civil
law systems, as well. In Estonia, the preamble, in which the Estonian people undertake
to “guarantee the preservation of the Estonian nation and its culture throughout the
ages,” has been used by the Supreme Court to confirm the constitutionality of an act
requiring adequate command of the Estonian language as a prerequisite for election
to a local government council. The Court ruled that mastering Estonian—the state’s
official language—is a legitimate requirement in light of the preamble.74 However, in
64
Cited in Anne Winckel, The Contextual Role of a Preamble in Statutory Interpretation, 23 Melbourne L. Rev.
184 (1999).
65
See William Blackstone, Commentaries on the Laws of England 59–60 (1765) (1979).
66
Id.
67
For the common law rule, see Winckel, supra note 64. For civil law rule, see Csaba Varga, The Preamble: A
Question of Jurisprudence, in Law and Philosophy—Selected Papers in Legal Theory 141, 150–161 (1994).
68
See Charles Pearce & R. S. Geddes, Statutory Interpretation in Australia 4.33 (3rd ed., 1988); Winckel,
supra note 64.
69
See, e.g., s. 5(e) to the New Zealand’s Acts Interpretation Act of 1924, 1924 R.S. No. 11; s. 13 to the
Canada’s Interpretation Act, R.S.C. 1985; s. 8 to Canada’s Interpretation Act, R.S.N.L. 1990.; s. 15A(a)
to the Australian Acts Interpretation Act 1901.
70
Article 39, however, does not explicitly refer to the preamble. Therefore, the requirement to promote
these values would remain even if the preamble is repealed.
71
See, e.g., Lourens M. D. Plessis, The Evolution of Constitutionalism and the Emergence of a Constitutional Juris-
prudence in South Africa: An Evaluation of the South African Constitutional Court’s Approach to Constitutional
Interpretation, 62 Sask. L. Rev. 299, 314–315, 321–322 (1999).
72
See John M. Kelly, The Irish Constitution 49–64 (by Gerald Hogan & Gerry Whyte, 4th ed., 2003).
73
See Report of the Constitution Review Group, 1–4, 1996, available at http://www.constitution.ie/
reports/crg.pdf.
74
See EST-1998-3-007 (Official Gazette) 1998, CODICES, available at http://codices.coe.int.
another case, the Supreme Court declared that an act forbidding Estonians to change
their Estonian last name to a non-Estonian last name is unconstitutional, despite the
provision in the preamble regarding the protection of Estonian national identity.75 In
Macedonia, the Supreme Court of the Republic upheld restrictions on the freedom of
political association because certain activities were perceived as contrary to the pre-
amble. It held that a political association that overtly denies the right of Macedonian
self-determination is legally forbidden.76 In the Ukraine, the Supreme Court invoked
the preamble in order to declare the constitutionality of the use of Ukrainian as the
state language, an act requiring its use by central and local government agencies,
and, consequently, greatly restricting the use of other languages, such as Russian.77
A recent example of the interpretive role of preambles comes from Germany.
On June 30, 2009, the German Constitutional Court decided that, in principle, no
incompatibility exists between the German Grundgesetz and the Treaty of Lisbon
and thus laid the groundwork for completion of the ratification process.78 The treaty
grants the European Union (EU) powers in matters of foreign and security policy
and obliges member states to participate in European integration. The question was
whether the treaty overrides the German constitutional order in a way that requires
a constitutional amendment. The Court held that the treaty does not violate German
sovereignty, although its confirmation does require some legislation processes. It re-
ferred to article 23(1) of the Basic Law, as well as to the preamble, taking note of the
latter’s intent “to serve world peace as an equal part in a unified Europe.” In light of
these stipulations, the Court was able to conclude that it is the will of the German
people to be part of the EU. It noted that the preamble emphasizes “not only the moral
basis of responsible self-determination but also the willingness to serve world peace
as an equal partner of a united Europe.”79 The Court observed that Germany breaks
with “political Machiavellianism and with rigid concept of sovereignty” and seeks to
realize “a united Europe, which follows from Article 23.1 of the Basic Law and the Pre-
amble.”80 Therefore, the Constitutional Court held, achieving “European integration
and an international peaceful order” is the will of the preamble.81
The German preamble, generally, does not enjoy legal force in German constitu-
tional law. However, the Treaty of Lisbon decision was not the first to invoke the
preamble. Another example was the decision regarding the treaty signed between
the Federal Republic of Germany and the German Democratic Republic. The 1949
75
This case involved a married Estonian citizen who wished to add her maiden name to her new surname.
The minister of the interior refused to permit this. The Court ruled that the preservation of Estonian iden-
tity, as ordered by the preamble, could not prevent the addition of a maiden family name. See EST-2001-
2-004 (Official Gazette) 2001, CODICES database.
76
See MKD-2001-1-004 (Official Gazette) 27/2001, CODICES database. The decision was made before the
amendment of the preamble of the Macedonian Constitution in 2001.
77
See UKR-2000-1-002 (Official Gazette), CODICES database.
78
See BVerfG, 2 BvE 2/08 vom 30.6.2009, Absatz-Nr. (1—421), available at http://www.bverfg.de/
entscheidungen/es20090630_2bve000208en.html.
79
Id.
80
Id.
81
Id.
726 I•CON 8 (2010), 714–738
preamble lists unification as the highest priority, stating that “the entire German peo-
ple is called upon to accomplish, by free self-determination, the unity and freedom of
Germany.”82 Although the preamble speaks in the name of the German people as a
whole—acting “on behalf of those Germans to whom participation was denied”—it
only applied in West Germany. On December 1972, after the treaty on the relation-
ship between the Federal Republic and the German Democratic Republic was signed,
a petition challenging the treaty was placed before the Constitutional Court claiming
that the treaty, which seemed to support the idea that West and East Germany were
two separate and independent states, violated the unification clause of the preamble.
In determining whether the treaty was compatible with the Basic Law, the Court
addressed the preamble.83 It first decided that the preamble was a decisive source for
determining the case, and then held that “the preamble to the Basic Law has not only
political importance but also legal content.”84 Hence, “reunification is a constitutional
command.”85 The Court noted that the treaty was a starting point for the future rela-
tionship between West and East Germany and gave the political branches wide discre-
tion in deciding further political actions needed to bring about German unification.86
4.3. Substantive preamble

Preambles can also be legally binding constitutional clauses and serve as independent
sources for rights and obligations. In Constitutional Theory, Carl Schmitt distinguishes
between “constitutional laws” and the “constitution.” The former are constitutional
provisions that govern behavior and set norms; the latter contains what Schmitt calls
“fundamental political decisions.”87 These decisions are not constitutional laws but
the “fundamental prerequisite[s] of all subsequent norms”;88 as such, they define the
genuine objectives of a society. While fundamental political decisions may appear in
the text of the constitution, or not be in the text of the constitution at all, they most
often appear in the preamble. Indeed, “it is a typical error of prewar-era state theory
to misconstrue” preambles as “mere statements,” declares Schmitt. Preambles, to a
large extent, represent the society’s “constitution,” while “constitutional law,” as spe-
cified in the body of the constitution, is only “secondary to the fundamental political
decisions.”89
An example of a substantive preamble that governs constitutional interpretation
and represents Schmitt’s notion of “fundamental political decisions” is to be found in
France. The preamble to the Constitution of the Fifth Republic (1958) states that the
82
See at http://www.ena.lu/basic-law-frg-23-1949-020003177.html.
83
See BVerfGE 36, 1 2 BvF 1/73 Grundlagenvertrag-decision East-West Basic Treaty, available at http://
www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?id=589
84
Id.
85
Id. Emphasis added.
86
Id.
87
See Carl Schmitt, Constitutional Theory 77–79 (Jeffrey Seitzer trans. and ed., 2008).
88
Id.
89
Id.
French people “proclaim their attachment to the Rights of Man and the principles of
national sovereignty as defined by the Declaration of 1789, confirmed and comple-
mented by the preamble to the 1946 Constitution.” The founding fathers of the Fifth
Republic did not include a bill of rights in the Constitution.90 Instead, they drafted a
preamble referring to two previous documents: the Declaration on the Rights of Man
and of the Citizen of 1789, and to the preamble to the Constitution of the Fourth Re-
public of 1946. The preamble to the 1958 Constitution did not originally enjoy bind-
ing legal force nor was it even considered an integral part of the Constitution.
On July 16, 1971, the Conseil Constitutionnel recognized the preamble’s binding
force as an independent legal source of human rights. For the first time, the Conseil
found an act passed by the French Parliament to be unconstitutional because it con-
tradicted freedom of association, one of the “fundamental principles recognized by
the laws of the Republic.”91 These fundamental principles were not mentioned in the
1958 Constitution but in the preamble to the 1946 constitution.92 In later decisions,
the Council held that the preamble to the 1946 constitution enjoys legal force and
constitutes an independent source of rights. Interestingly, at the time it was drafted,
the 1946 preamble did not enjoy any legal status. Thus, the Conseil Constitutionnel,
through a reference to the 1946 preamble in the 1958 preamble, effectively granted
the 1946 preamble a higher status than it had previously enjoyed. Although not ex-
plicitly enumerated in the 1958 Constitution, the rights to strike, freedom of associ-
ation, privacy, education, freedom of conscience, freedom of movement, and due pro-
cess were all thereby recognized as constitutionally protected rights.93 Some of these
rights, such as freedom of association, were not even listed in the 1946 preamble but
were incorporated by affirming the doctrine of the “fundamental principles recognized
by the laws of the Republic,” anchored in the 1946 preamble.94 The 1971 decision was
France’s Marbury v. Madison. It applied an interesting method of judicial interpretation
according to which the 1946 preamble, the 1789 declaration, and the fundamental
principles of the Republic were all granted constitutional legal status ex post facto.95
India is another example that illustrates the growing use of preambles in constitu-
tional interpretation. The Indian preamble includes three sections: declarative, in
which the people of India establish the Constitution through the constituent assembly;
principled, in which the people of India establish a socialist, secular, democratic
90
See Michel Troper, Judicial Review and International Law, 4 San Diego Int’l L.J. 39, 50–53 (2003).
91
See Decision of the Constitutional Council No. 44–71 (1971), available at http://www.conseil-constitutio
nnel.fr/decision/1971/7144dc.htm.
92
The preamble of the Fourth Republic (1946) stated that the people of France “solemnly reaffirm the rights
and freedoms of man and the citizen enshrined in the Declaration of Rights of 1789 and the fundamental
principles acknowledged in the laws of the Republic.”
93
Troper, supra note 90, at 52.
94
See, e.g., The Press Law (1881), the Trade Unions Law (1884), The Unions and Freedom of Association
Law (1901), and The Separation of Religion and State Law (1905). These laws have political signifi-
cance, sometimes even more importance than the Constitution.
95
See Alec Stone, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective
40–45, 66–78 (1992). Stone mentions that seven out of sixteen annulments made by the Council be-
tween 1971 and 1981 were based on the Council’s interpretation of the 1958 preamble.
728 I•CON 8 (2010), 714–738
republic; and operative, in which the people of India sanctify four supreme aims:
“Justice, Liberty, Equality, and Fraternity.” The original preamble was adopted on Oc-
tober 17, 1949, and was subsequently amended in 1977 with the addition of the terms
“secular” and “socialist.” These changes brought about a constitutional revolution
and have been interpreted since to formally provide India with a social character.96
In a nearly thousand-page benchmark decision,97 the Indian Supreme Court ruled
that the preamble is part of the Constitution and enjoys legal force. The justices
inquired into the theory of preambles and their uses. Some even cited American case
law and Joseph Story’s Commentaries on the Constitution of the United States to con-
clude that the preamble is the key to understanding the Constitution and interpreting
its clauses. The preamble, together with the Fundamental Rights and the Directive
Principles of State Policy—the most important parts of the Indian Constitution—
constitute the core of the constitution. Unlike France, India declared that the pre-
amble cannot, in and of itself, impose additional rights to those explicitly stipulated
in the Constitution. Nevertheless, the courts regularly resort to using the preamble
when the text of the Constitution is vague. For example, the Supreme Court relied on
the preamble in establishing that the constitutional authorities draw their strength
directly from the people of India, clarifying the character of India as a socialist re-
public, recognizing the possibility of the nationalization of private industries in order
to secure equality and justice, and granting the expression “social justice” the status
of a constitutional right.98 These references are interpretive, yet their quantity and
length indicate a more substantive role of the Indian preamble in constitutional in-
terpretation.99
A unique example of a substantive preamble appears in Nepal. Article 116(1) of
the Nepalese Constitution proclaims that “a bill to amend or repeal any Article of this
Constitution, without prejudicing the spirit of the Preamble of this Constitution, may
be introduced in either House of Parliament.” This clause invalidates even a constitu-
tional amendment that violates that spirit of the preamble. Nepal is unique not only
for the specific provision indicating the legal status of the preamble but also for tak-
ing additional measures to protect the preamble’s spirit.100 The concept of a constitu-
tional amendment that is unconstitutional vis-à-vis the spirit of the constitution is
found in Schmitt’s theory. For Schmitt, constitutional laws may be amended, and
96
See Ramesh C. Lahoti, Preamble: The Spirit and Backbone of the Constitution of India (2004).
97
See Kesavanada Baharati v. State of Kerala (1973) 4 S.C.C. 225.
98
Lahoti, supra note 96, at 38–41, 54–55, 63–86.
99
India’s preamble should be treated as lying between the interpretative and the substantive models. For
the growing reliance on the preamble in constitutional interpretation in India, see Aparajita Baruah, Pre-
amble of the Constitution of India: An Insight and Comparison with other Constitutions 176–224 (2007);
K. C. Markandan, The Preamble: Key to the Mind of the Makers of the Indian Constitution 76–97 (1984). The
preamble in India has at least three interpretive values: (a) assisting in interpretation of the Constitution;
(b) assisting in interpretation of statutes; (c) assisting in judicial thinking process.
100
Article 116(1) to the Constitution also says that “this Article shall not be subject to amendment.” Similar
articles exist in article 176(1) to the Turkish Constitution (“The Preamble, which states the basic views
and principles underlying the Constitution, shall form an integral part of the Constitution”), and art. 81
to the constitution of the French Fourth Republic (1946).
even eliminated, by adhering to the amendment procedure of the constitution. Fun-

damental political decisions, however, cannot be amended or eliminated in the same
way. “The German Reich cannot be transformed into an absolute monarchy or into
a Soviet republic through a two-thirds majority decision of the Reichstag,” Schmitt
declared, just as “a majority decision of the English Parliament would not suffice to
make England into a Soviet state.”101 Legislators are not omnipotent; only the peo-
ple, acting directly or through a constitutional assembly, can change fundamental
decisions. In Nepal, this concept has been influenced by the Indian concept of “basic
structure.”102 A number of dissenting justices in India ruled that the preamble is not a
regular constitutional clause and, therefore, its “basic structure” cannot be amended;
representing eternal law, it cannot be set aside by an amendment, not even by the
amendment procedure of article 368 to the Indian Constitution.103 The fundamental
values of the Constitution, as they appear in the preamble, cannot be altered. 104 In
Schmitt’s terms, the amendment procedure of the constitution can amend constitu-
tional laws but not the Constitution; a new constitution would have to be created and
accepted.105 The preamble “walks before the Constitution.”106 Hence, it is not only a
source of rights and powers but also of entrenchment.
An interesting case of a substantive preamble appears in the Constitution of the
Republic of Bosnia-Herzegovina (BiH). The Dayton Agreement (1995) divided
the republic into two separate entities: the Federation of Bosnia-Herzegovina and the
Republic of Srpska (RS), each with its own constitution. In an important decision,
the BiH Constitutional Court found four sections of the preamble to RS’s Constitu-
tion unconstitutional because of its contradictions of the BiH Constitution. The Court
decided that certain statements or phrases in RS’s preamble conflicted with the body
of the BiH and its preamble; for example, “a state of the Serbian people,” “the Serb peo-
ple’s self-determination,” “state independence,” and the like.107 The Court held that
the Constitution of BiH had established two independent political entities, not two
101
Schmitt, supra note 87, at 79–80.
102
See Richard Stith, Unconstitutional Constitutional Amendments: The Extraordinary Power of Nepal’s Supreme
Court, Am. U. J. Int’l L. & Pol’y 47, 57 (1996).
103
See Kesavananda Bharati v. State of Kerala, 4 SCC 225 (Shelat and Grover JJ., dissenting); Lahoti, supra
note 96, at 41–46, 49.
104
The concept of the unamendable “basic structure” of the Constitution appears in other constitutions.
Article 89(5) of the French Constitution forbids a constitutional amendment that violates the republican
form of France; article 79(3) of the German Basic Law forbids a constitutional amendment that violates
human dignity or the nature of Germany as a republic, democracy, and social federal state; and article
4 of the Turkish Constitution forbids a constitutional amendment relating to the republic, democratic,
secular, and social nature of Turkey. While the basic structure of the constitution in these cases does not
appear in a formal preamble, one may treat this basic structure as a substantive form of preamble.
105
Schmitt, supra note 87, at 79.
106
Kesavananda Bharati 4 SCC 225 (Khanna J). In Khanna’s opinion, only the provisions in the preamble
that pertain to the basic structure of the Constitution are unalterable; other parts of the preamble are
amendable as are other parts of the Constitution.
107
See BIH-2000-3-003 (Official Gazette), CODICES database. Since Srpska’s preamble infringed upon the
Constitution of BiH, the Court left open the question of whether it also infringed the preamble to the Con-
stitution of BiH. Id., at para 12.
730 I•CON 8 (2010), 714–738
separate nation-states.108 The Republic of Srpska was part of the entire republic and
did not belong exclusively to the Serb people. The Court dismissed RS’s argument
according to which its “preamble was not an operative part of the Constitution of
Republic [of] Srpska and had no normative character,” noting that:
As any provision of an Entity’s Constitution [RS] must be consistent with the Constitution of
BiH, including its Preamble, the provisions of the Preamble are thus a legal basis for reviewing
all normative acts lower in rank in relation to the Constitution of BiH for as long as the aforesaid
Preamble contains constitutional principles . . . the provisions of the preamble are therefore not
merely descriptive, but are also invested with a powerful normative force, thereby serving as a
sound standard of judicial review for the Constitutional Court. Hence, the Constitutional Court
must establish in substance what specific rights or obligations follow from the constitutional
principles of the Preambles of both the Constitution of BiH and the Constitution of RS.109
This survey demonstrates the growing use of preambles in constitutional adjudica-

tion. Nevertheless, it is difficult to generalize under what circumstances it is likely that
a preamble may play a functional role, whether interpretive or substantive. In some
cases, preambles are more substantive when there is no explicit bill of rights in the
constitution, as in France. In other cases, as in India, preambles are more likely to be
substantive when they set up concrete norms rather than abstract ideas, such as hap-
piness or love. On the other hand, when a gap between the content of the preamble
and the text of the constitution exists, as in Canada, the preamble is less likely to play
a role in constitutional interpretation. Nonetheless, going back to Hans Kelsen, the
legal status of the preamble is still to be considered functional. In principle, a preamble
“usually does not stipulate any definite norms for human behavior and thus lacks le-
gally relevant contents. It has an ideological rather than a juristic character.”110 How-
ever, the legal status of the preamble depends on various criteria; among them is its
content. A preamble may have a normative character whenever “its meaning is to
establish . . . an obligation. A statement whose meaning is to establish an obligation
is a norm.”111
One question that arises is why would a preamble not be regarded as binding in the
first place? Why is it required of those who want the preamble to have a legal mean-
ing to make a case for its functionality? In many instances, it is clear that justices in
various states have paid particular attention to the legal status of the U.S. preamble
when determining the case before them. It does appear peculiar that one of the most
comprehensive studies on the legal status of the U.S. preamble was not conducted by
American scholars but by Indian justices in Delhi.112 One thing, however, is clear: in
many countries, it is no longer possible to treat the preamble as a prefatory rather
108
The Court ruled that the reference to the “Serb people” is troubling since the Dayton Accords and the
Constitution of BiH establish that all three peoples—Bosniaks, Croatians, and Serbs—share equal rights
throughout the territory of the Republic of Bosnia-Herzegovina.
109
Id., at para 10.
110
See Hans Kelsen, General Theory of Law and State, 260–261 (2007).
111
Id., at 142.
112
Kesavanada Baharati, 4 SCC 225.
than as a dispositive piece of the constitution. Preambles are playing an increasing

role in constitutional interpretation.113 At least two lessons can be drawn: (a) parties
to litigation should be aware of the growing role of preambles in constitutional adjudi-
cation, which means that they can invoke the preamble as a source of law; (b) future
constitutional design must consider the legal status of the preamble. Constitutional
framers either can determine the legal status of the preamble in the constitution them-
selves or let the courts decide the issue.
5. Integrative and disintegrative power of preambles

The preamble’s strength lies not only in the legal sphere but also in its social func-
tion and effect.114 The United States probably has the best example of an integrative
preamble. However, just as preambles can foster integration by forging a common
identity, so also they can be disintegrative, driving people apart and contributing
to social tension. This occurs when a preamble reflects only the story of a dominant
group. If the preamble states the fundamental principles underlying the constitution
and enjoys legal status—that is, these principles are no longer political morality or
nonbinding historical statements—it is necessary to consider what is written therein.
Four cases are briefly discussed here: Macedonia, Israel, Australia, and the EU.
5.1. The Macedonian experience

Macedonia was established as an independent state after the dissolution of Yugo-
slavia. The state includes a substantial Albanian national minority (as well as other
minorities), variously estimated at from one-fourth to one-third of the population. The
preamble to the 1991 Constitution established Macedonia as “the national state of
the Macedonian people” and referred at length to their history, culture, and identity.
It was a strictly Macedonian preamble in the ethnic sense, noting only the “historical,
cultural, spiritual, and statehood of the Macedonian people.” The preamble stated that
Macedonia was founded in order to serve as the “national state of the Macedonian
people” as well as other nationalities that reside therein.115 The preamble secured full
equality for all citizens, yet the Albanian minority fiercely opposed the nationalistic
statements in the preamble and, in particular, the reference to Albanians as a national
minority. During the 1990s, Albanian factions began to employ violence in order to
113
See Kim L. Scheppele, Declarations of Independence: Judicial Reactions to Political Pressure, in Judicial Inde-
pendence at the Crossroads: an Interdisciplinary Approach 227, 248–251 (Stephen B. Burbank & Barry
Friedman eds., 2002).
114
See Dieter Grimm, Integration by Constitution, 3(2) Int’l J. Con. L. 193, 199 (2005).
115
For the Macedonian case, see Biljana Belamaric, Attempting to Resolve and Ethnic Conflict: The Language of
the 2001 Macedonian Constitution, 4(1) S.e. Eur. Pol. 25 (2003); Zhidas Daskalovski, Language and Iden-
tity: The Ohrid Framework Agreement and Liberal Notions of Citizenship and Nationality in Macedonia, JEMIE
1/2002; Jenny Engstrom, Multi-ethnicity or Bi-nationalism? The Framework Agreement and the Future of the
Macedonian State, JEMIE 1/2002.
732 I•CON 8 (2010), 714–738
force a constitutional amendment that would transform Macedonia into a binational

state and grant Albanians full territorial and political autonomy in areas with an
Albanian majority. Under pressure from the Albanian minority and the international
community, the Macedonian preamble was amended in November 2001 following
the Ohrid Agreement in August 2001. The Macedonian national statements were
omitted, and the Albanian minority was listed as “part of the Albanian nation.”116 The
amended preamble is more inclusive and embraces a broader concept of civic identity:
The citizens of the Republic of Macedonia, the Macedonian people, as well as the citizens living
within its borders, which are part of the Albanian nation, the Turkish nation, the Vlah nation,
the Serbian nation, the Roma nation, the Bosnian nation and others . . . have decided to estab-
lish the Republic of Macedonia as an independent, sovereign state.
By including only a limited national narrative and expressing future aspirations of

a specific national group, the original Macedonian preamble had excluded the Alba-
nian minority from the mainstream of Macedonian life; it thereby weakened the Con-
stitution’s political legitimacy.117 The Albanians demand was for a more consensual,
less partisan preamble with which all citizens could identify. Yet, one can be skeptical
regarding the efficacy of such a preamble in those nation-states that, by definition,
are not equally accepting of all national groups. More importantly, the amendment
to the preamble has not resolved the social conflict. On the contrary, the deletion of
Macedonia as a nation-state caused resentment among ethnic Macedonians, who felt
that this change had been forced upon them by violence and international pressure.
Similarly, ethnic Albanians continue to challenge their linkage to other minorities
and their inferior status, which is derived, in their view, from the term “as well as” that
appears in the preamble. They object to any preamble that falls short of referring to a
fully binational Macedonia. This case thus emphasizes the power of preambles either
to unify or to divide political resources; it also sheds light on the limits of constitutional
design to ameliorate ethnic conflicts or foster a common national identity.
5.2. The Israeli experience

Israel is considered to be among the few democracies not having a formal written
constitution. In fact, one of the historical reasons for the failure to establish a con-
stitution stems from the inability to achieve consent regarding the preamble’s con-
tent.118 The Israeli parliament (the Knesset) preferred to create a constitution in stages
116
See the preamble as well as articles 7 and 48 of the 2001 Macedonian Constitution.
117
In Slovakia, similarly, the preamble to the Constitution declared that the Slovak Republic embodies
national Slovak statehood. The Hungarian minority opposed the preamble and demanded that it be
amended from “We, the Slovak nation” to “We, the citizens of the Slovak Republic.” See Farimah Daftary
& Kinga Gal, The 1999 Slovak Minority Language Law: Internal or External Politics?, in Nation-Building,
Ethnicity and Language Politics in Transition Countries 39, 43–45 (2003). For a similar clash in Poland,
see Geneviève Zubrzycki, ‘We, the Polish Nation’: Ethnic and Civic Visions of Nationhood in Post-Communist
Constitutional Debates, 30 Theory & Society 629 (2001).
118
See Session 41/I9 of the Provisional Government, Feb. 2, 1949 (in Hebrew); Session 16/I10 of the
Government, Dec. 13, 1949 (in Hebrew); Knesset Protocols, 5710, at p. 10, 726, 728, 731, 784,
801–804, 1711–1722, 1262–1263.
through the adoption of separate Basic Laws,119 which—following the enactment of

the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation
in 1992—have been declared by the Supreme Court a constitutional revolution and
“substantive constitution.”120 As a quasi preamble, the courts have used the 1948
Declaration of Independence. In 1994, the Knesset amended the Basic Law: Freedom
of Occupation and the Basic Law: Human Dignity and Liberty. These amendments
included two important sections declaring, for the first time, that Israel is a Jewish and
democratic state and that human rights are to be respected in the spirit of the princi-
ples set forth in the Declaration of Independence. Articles 1 and 1A of the Basic Laws
read as follows:121
I. Fundamental human rights in Israel are founded upon recognition of the value of the human
being, the sanctity of human life, and the principle that all persons are free; these rights shall
be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the
State of Israel.
IA. The purpose of this Basic Law is to protect human dignity and liberty, in order to establish
in a Basic Law the values of the State of Israel as a Jewish and democratic state.
This amendment is consonant with most of the substantive requirements of a pre-

amble; it recognizes the fundamental values of the state of Israel and its national char-
acter. While it is not a formal preamble—bearing the title “preamble” or a similar
title (“foreword,” “preface,” and the like)—it may constitute, in effect, a substantive
preamble. It was also the first time in Israel’s legislative history that the Declaration
of Independence was incorporated into law. The legal status of the Declaration of In-
dependence has changed over the years. Soon after the state’s foundation, the Su-
preme Court refused to grant it legal status;122 however, this attitude changed with the
Supreme Court’s progressive reliance on the human rights guaranteed in the declar-
ation for constitutional interpretation. The Court has repeatedly ruled that the dec-
laration serves as a political act with legal implications that should be respected by all
authorities, although it could not disqualify acts of parliament. The Court adopted a
Blackstonian reading of preambles under which a law, interpretable in different ways,
would be interpreted in the manner compatible with the preamble’s spirit or, in this
case, the declaration’s.123 Following the 1994 amendments, a few judges ruled that
the legal status of the Declaration of Independence had been altered, significantly, and
held that the Court may declare rights recognized by the declaration as constitutional
119
See Dafna Barak-Erez, From an Unwritten to a Written Constitution: The Israeli Challenge in American Per-
spective, 26 Colum. Hum. Rts. L. Rev. 309 (1995).
120
See C.A. 6821/93, Bank Hamizrachi Hameuhad Ltd. v. Migdal Cooperative Village, 49(4) P.D. 221 (in Heb-
rew).
121
In article 2 of Basic Law: Freedom of Occupation the text is almost identical.
122
See HCJ Zeev v. District Commissioner of the Urban Area of Tel Aviv, 1 P.D. 85, 89 (Hebrew).
123
See HCJ 73/53 Kol Ha’am v. the Minister of the Interior (1953) 7(2) P.D. 871, 884; C.A. 450/70
Rogozinksy v. State of Israel, 26(1) P.D. 129, 135; EA 1/65 Yardor v. Central Elections Committee, 19(3)
P.D. 365; HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa, 42(2) P.D. 309, 332; HCJ 262/62 Perez v. Kfar
Shemariahu, 16 P.D. 2101, 2113 (in Hebrew).
734 I•CON 8 (2010), 714–738
rights.124 In one case, a dissenting judge even ruled that the Disengagement Plan
regarding the unilateral withdrawal from the Gaza Strip was unconstitutional, because
it conflicted with “the right” of the Jewish people to settle in all the territories of the
Land of Israel/Palestine, protected, in his view, by the Declaration of Independence.125
The Jewish and democratic character of Israel is its basic constitutional structure.
This structure, as former president of the Supreme Court Aharon Barak argues, is
eternal and, therefore, an amendment that denies it would be an unconstitutional
constitutional amendment.126 In fact, Israel has been a Jewish state from its foun-
dation but, until 1994, it was an unwritten convention rather than a constitu-
tional imperative. Legalization of the term “Jewish state” has granted the courts
the power to decide the meaning of this character and has triggered social ten-
sion between secular and ultraorthodox Jews and between Jewish and Arab citi-
zens. Arab citizens feel that the Basic Laws have excluded them from Israel’s social
arrangement and have ignored their identity, culture, and heritage. By adopting a
constitutional definition of Israel as a Jewish State, the Basic Laws exclude them from
the Israeli mainstream and treat them as “second-class citizens.”127 The Israeli experi-
ence demonstrates how the preamble’s design can raise ideological barriers to social
integration as well as produce feelings of not belonging.128 The “Purpose Clause,” con-
sidered Israel’s substantive preamble,129 is not ideologically neutral; it does not state
“we, the people of Israel,” and its meaning is the focus of ongoing disputes and social
divisions.130
5.3. The Australian experience

Australia was established in 1900 through the Commonwealth of Australia Consti-
tution Act that was passed by the British Parliament and established Australia as an
indissoluble federal commonwealth; the act’s preamble has been regarded as equiva-
lent to a constitution’s preamble. The preamble outlines the structure and powers of
the government. It is very short and lacks any substantive content. Toward the end of
124
See HCJ 726/94 Klal Insurance Company v. The Minister of Finance, 48(5) P.D. 441, 461; HCJ 1554/95
Gilat Ass. v. The Minter of Education, 50(3) P.D. 2, 24–25 (in Hebrew).
125
See HCJ 1661/05 The Regional Council of Gaza v. The Knesset, 59(2) P.D. 481 (in Hebrew). The Supreme
Court, however, has not yet decided the legal status of the Declaration.
126
See Aharon Barak, Unconstitutional Constitutional Amendment, Isr. L. Rev. (forthcoming, 2011) (holding
that Israel has a basic structure of fundamental principles that cannot be amended by a constitutional
assembly; this basic structure includes the character of Israel as a Jewish and democratic state).
127
See Jousef T. Jabareen, Constitution Building and Equality in Deeply-Divided Societies, The Case of the Palestin-
ian-Arab Minority in Israel, 26(2) Wis. Int’l L. Rev. 345 (2008).
128
This is not to say there are no other reasons for current tensions between Jewish and Arab citizens;
ongoing discrimination against Arab-Palestinian citizens is, no doubt, a central reason.
129
See Amnon Rubinstein & Liav Orgad, The Legal Status of the Constitutional Preamble: The Israeli Case, 20
Hamishpat L. Rev 38 (2005) (in Hebrew).
130
See Amnon Rubinstein, The Curious Case of Jewish Democracy, Azure 33 (2010).
the twentieth century, the preamble was criticized for no longer reflecting Australia’s
values. On November 6, 1999, a referendum was held on the question of adopting a
new preamble.131
As in the Macedonian case, a legal change was triggered by a new reality. One of
the reasons motivating the referendum was the need to reconsider the legal status of
Australian Aborigines. In February 1998, a constitutional convention adopted a new
preamble that would enable minority groups to identify with Australia.132 The con-
vention decided that a separate referendum would be held on the question of replacing
the existing preamble along with the question whether Australia would become a Re-
public. Prime Minister John Howard announced his intention to abide by the deci-
sion regarding a separate referendum on the new preamble. His draft, published in
February 1999, was met with criticism mainly from minority leaders, who requested
that the Australian Aborigines not be mentioned as a “native minority” but as “the
custodian[s] of our land.” Howard, thereafter, drafted a second version of the pre-
amble; however, it was rejected in the referendum—60.7 percent voted against it.133
The Australian experiences differ from those of Macedonia and Israel. First, it is
very difficult to gain broad public support for a new preamble at a later constitutional
moment, especially in multicultural societies. Second, the plan to adopt a nation-
building preamble—that is, to use the preamble as a symbol for promoting national
identity, similar to a flag or an anthem—requires public involvement. In the Austra-
lian case, expressions such as “recognising the nation-building contribution of gen-
erations of immigrants,” or “honouring Aborigines and Torres Strait Islanders, the
nation’s first people[s], for their deep kinship with their lands”134 were inadequate to
compensate for the isolation in which the prime minister drafted the document. If the
goal is to secure reconciliation between the state and its minorities, representatives
of the minorities have to be involved in the drafting process. Third, the intention was
not to replace the old preamble but to adopt a new preamble, devoid of legal power,
to accompany the old one that enjoyed interpretative force. Yet, if the preamble is
intended from the outset to be purely symbolic, and absent legal force,135 the publics’
interest in the preamble is likely to decrease. In addition, the insistence on a nonjusti-
131
See Bruce Stone, A Preamble to the Australian Constitution: A Criticism of the Recent Debate, 35 Australian J.
of Pol. Science 291 (2000); Mark McKenna, First Words: A Brief History of Public Debate on a New Pre-
amble to the Australian Constitution 1991–1999 (2000), available at http://www.aph.gov.au/library/
pubs/RP/1999-2000/2000rp16.htm.
132
See Report of the Constitutional Convention (Old Parliament House, 1998).
133
The referendum was held on November 6, 1999. For the reasons for its failure, see Anne Winckel, A 21st
Century Constitutional Preamble—An Opportunity for Unity rather than Partisan Politics, 24(3) U.N.S.W. L. J.
636, 638–48 (2001); Mark McKenna, Amelia Simpson & George Williams, With Hope in God, the Prime Min-
ister and the Poet: Lessons from the 1999 Referendum on the Preamble, 24 U.N.S.W. L.J. 401, 415–16 (2001).
134
See Alex Reilly, Preparing a Preamble: The Timorous Approach of the Convention to the Inclusion of Civic Val-
ues, 21 U.S.N.W. L.J. 903 (1998).
135
The new preamble asserted that “the preamble to this Constitution has no legal force and shall not be
considered in interpreting this Constitution or the law in force in the Commonwealth or any part of the
Commonwealth.” See McKenna, Simpson & Williams, supra note 133, at 411.
736 I•CON 8 (2010), 714–738
ciable preamble revealed deep concern regarding the role of the preamble in judicial
empowerment.136
5.4. The EU experience
On December 1, 2009, the Treaty of Lisbon entered into force. The changes inserted in
the Treaty of Lisbon’s preamble express the differences in the conceptual framework of
the rejected draft Treaty Establishing a Constitution for Europe. A process that began
with high expectations and romantic visions concluded, essentially, in a watered-
down product. It is interesting to compare the long, detailed version of the preamble of
the draft constitutional treaty with the short, almost valueless preamble of the Lisbon
treaty, whose almost sole purpose is to allow the EU more efficient functioning.137
At the end of 2004, representatives of the EU signed the draft Treaty Establishing a
Constitution for Europe. The discussions during the drafting of the preamble revived
old disputes forcing member states to address historical narratives, common motives,
shared values, and future destinies.138 In a document of approximately three-hundred
pages, the preamble is particularly interesting. It includes the values and objectives of
the EU’s citizens, features that were fiercely debated within the framework of historical
narratives, a reference to God or Christianity, and issues of identity.
It was first necessary to determine who speaks for EU citizens: the states themselves,
the parliaments, or the citizenry. It was decided to refer to the heads of the state—his
Majesty the King of the Belgians, the president of the Czech Republic, her Majesty the
Queen of Denmark, and so on—as the entities ratifying the treaty. In the preamble to
the Lisbon treaty, the people of Europe do not speak directly as one political body; no
united “people of Europe” exists. By way of comparison, in the United States, one sug-
gestion considered at the Philadelphia Convention had been to name the Union the
“United People and States of America.”139 The framers eventually adopted the phrase
“We the people of the United States” because they were uncertain how many states
would join the Union, and this term was more flexible.140 Yet, in Europe, it seems that
adding a new member state would require amending the preamble in order to insert
another head of state.
Another interesting discussion took place regarding the question of whether to refer
to Christianity. Poland and Italy advocated adding a reference to God whereas secular
France and Belgium strongly opposed such a reference. At the end, it was decided
to mention neither God nor Europe’s Christian heritage. A similar debate arose sur-
136
Winckel, supra note 64, at 644–648.
137
For the text of the Treaty Establishing a Constitution for Europe, see http://en.constitution.com/. For the
text of the Treaty of Lisbon, see http://europa.eu/lisbon_treaty/full_text/index_en.htm.
138
On the discussions relating to the EU preamble, see Armin V. Bogdandy, The Preamble, in Ten Reflections
on the Constitutional Treaty for Europe 3 (Bruno D. Witte ed., 2003); Ingolf Pernice, Integrating the Charter
of Fundamental Rights into the Constitution of the European Union: Practical and Theoretical Propositions, 10
Colum. J. Eur. L. 5, 18–22, 45 (2003); Armin V. Bogdandy, The European Constitution and European Iden-
tity: Text and Subtext establishing a Constitution for Europe, 3(2) Int’l J. Const. L. 295, 300–305 (2005).
139
Supplement to Max Farrand, supra note 20, at 152.
140
See Sanford Levinson, Do Constitutions Have a Point? Reflections on ‘Parchment Barriers’ and Preambles, 28
Soc. Phil. & Pol. 150 (2011).
rounding Europe’s common history. The question was whether the horrors of the
two world wars should be mentioned as a motivation for the creation of the EU. The
member states first decided to adopt a terse reference to Europe as “reunited after bit-
ter experiences” and to declare that “the peoples of Europe are determined to tran-
scend their former divisions.” However, this formulation was dropped in the Treaty of
Lisbon, to be replaced by a thin statement according to which member states “draw
[. . .] inspiration from the cultural, religious, and humanist inheritance of Europe, from
which have developed the universal values of the inviolable and inalienable rights of
the human person, freedom, democracy, equality and the rule of law.”
A major challenge was how to frame common European goals. The preamble to the
draft Treaty Establishing a Constitution for Europe was very detailed. It described com-
mon aspirations—such as “forging a common destiny” or “striv[ing] for peace, justice
and solidarity throughout the world”—while declaring that the peoples of Europe are
“united ever more closely” in the lofty goals of “continu[ing] along the path of civ-
ilization, progress and prosperity” and of accepting responsibilities toward “future
generations.” It celebrated the member states as “united in diversity.” This formula,
which is the official motto of the EU, indicates that Europe chooses unification in the
realization of common goals while sustaining its diverse national identities; thus the
peoples of Europe “remain [. . .] proud of their own national identities and history.” In
the Treaty of Lisbon, however, all these goals have been completely omitted. The pre-
amble is much shorter. It merely declares a modest goal of “enhancing the efficiency
and democratic legitimacy of the Union and to improving the coherence of its action.”
With no united people of Europe, little common history, and fewer shared goals,
the question of having a European identity became more significant. Should the pre-
amble define a collective European identity or be neutral on the subject? In the first
draft adopted in July 2003, the preamble began with a quote from the writing of Thu-
cydides, in ancient Greek.141 Its purpose was to refer to one of the historical sources
of democracy as an enduring unifying symbol. With no overt desire to develop a col-
lective idea of Europeanness, the Treaty of Lisbon’s preamble avoids directly address-
ing Europe’s collective identity.
The debate concerning the EU’s preamble demonstrates the difficulties of forging a
consensus around common values against a background of diverse national histories.
It remains unclear as to whether the preamble will have any normative influence or
foster a unified European identity. For now, the preamble’s main merit is that it shows
the importance of the drafting process, which, in turn, will demonstrate the purposes
of the preamble. From a legal perspective, there is little difference between the draft
Treaty Establishing a Constitution for Europe and the Treaty of Lisbon. The significant
difference, after years of ongoing debates, is to be found in the content of the preamble.
See Armin V. Bogdandy, The European Constitution and European Identity: A Critical Analysis of the Con-
141
vention’s Draft Preamble, in Altneuland: The EU Constitution in a Contextual Perspective (Joseph H.H.
Weiler & Christopher L. Eisgruber, eds., 2004), available at http://centers.law.nyu.edu/jeanmonnet/
papers/04/040501-07a.pdf.
738 I•CON 8 (2010), 714–738
6. Conclusion
Do preambles have a point? They surely do. For Plato, preambles are the soul of the
laws, a device through which the legislator convinces the people to obey the law. For
Schmitt, preambles express the society’s fundamental political decisions. For Black-
stone, preambles are the key to opening up to us the minds of the lawmakers. For
individuals, preambles are the national consciousness; they define the constitutional
identity and, as such, they define who the “we” is.
For a long time, preambles have been disregarded as symbolic statements. Students
at American law schools do not learn that they can win a case by invoking the Pre-
amble. This article shows that, in a global perspective, this premise is no longer valid.
A growing number of countries have legalized the language of the preamble. The pre-
amble’s rights and principles have become more and more legally enforceable, rights
that lawyers can bring to court (whether this is a desirable practice is a separate ques-
tion). And yet, preambles are not simply legal provisions, like the other provisions of
the constitution. The motives for writing preambles, their design process, and their
sociological functions are different. The preamble’s purpose is not only—perhaps not
mainly—to guarantee rights or provide legal arguments but to set down the basic
structure of the society and its constitutional faith. In no other place than the
preamble is the constitutional understanding of the founding fathers and the national
creed so clearly reflected.
Preambles have an important nonlegal purpose, as well. They reflect and affect so-
cial and political norms. They encourage cohesion or exacerbate divisions, express
the constitutional identity, and are called upon to serve as a device of national con-
solidation or to reconcile past wrongs. Their impact depends on their wording but
also on the political environment that once gave them life. Preambles may acquire a
unique force, generally at a constitutional moment. The classic case is the U.S. Consti-
tution. This was also the case with the preamble to the German Grundgesetz in which
a defeated and shattered Germany, recuperating from the Nazi nightmare, was able to
proclaim its attachment to a new Europe. In those moments, preambles enjoy popular
consent. When those moments pass, popular consent is more difficult to achieve.

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The preamble in constitutional

I•CON (2010), Vol. 8 No. 4, 714–738 doi: 10.1093/icon/mor010

2. How to talk about preambles

identification of a preamble. Alongside a formal classification, it is possible to identify

with a reference to representative bodies; others refer only to representative bodies;

3. The American preamble

4. The legal status of preambles

4.1. Ceremonial-symbolic preamble

4.2. Interpretive preamble

4.3. Substantive preamble

even eliminated, by adhering to the amendment procedure of the constitution. Fun-

This survey demonstrates the growing use of preambles in constitutional adjudica-

than as a dispositive piece of the constitution. Preambles are playing an increasing

5. Integrative and disintegrative power of preambles

5.1. The Macedonian experience

force a constitutional amendment that would transform Macedonia into a binational

By including only a limited national narrative and expressing future aspirations of

5.2. The Israeli experience

through the adoption of separate Basic Laws,119 which—following the enactment of

This amendment is consonant with most of the substantive requirements of a pre-

5.3. The Australian experience

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