Preamble to the Bill of Rights

People are familiar with the Preamble to the Constitution.  But not that many know that Congress included a Preamble in the Bill of Rights when it sent the proposed amendments to the States for ratification:

“The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added:  And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

I think that this text is interesting in two respects.  First, the Preamble makes it clear that parts of the Bill of Rights are declaratory (this is not shocking, but you rarely see that sort of thing stated so openly). Second, I wonder whether the current interpretation of the Bill is consistent with Congress’s stated goal of “extending the ground of public confidence in the Government.”

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1 Response

  1. Jordan J. Paust says:

    Interesting, especially in view of the fact that the Ninth Amendment was a “savings clause” designed to assure that “human rights” that were not expressly enumerated would not be irrelevant as constitutionally-based rights.
    See 60 Cornell L. Rev. 231 (1975).
    For other views of the Founders and Framers with respect to the binding nature of customary international law, see, e.g., http://ssrn.com/abstract=1485703
    for a free download.
    JJP