Rediscovering the Constitutional Preamble? How Judges Enlist Preambles to Legitimate Transformative Interpretations

Despite being increasingly ubiquitous inhabitants of the constitutional realm, the role of preambles in judicial decision-making remains under-studied in comparative constitutional scholarship. In this Article, we look at how these texts have been employed by courts, regardless of—and often contrary to—their formal legal status and the political expectations of constitution-makers. We show how courts resort to constitutional preambles—whatever their preceding formal legal status—to provide justification and legitimation for expansive views of the judicial function vis-à-vis the political branches. We argue that certain characteristics of preambles make them particularly attractive to courts in this regard: their broad language, their symbolic content and connection with national narratives, and the fact that they often contain elements that are not found elsewhere in the constitution. Moreover, their usefulness for judicial empowerment is independent from (and sometimes in tension with) the understanding of the preamble’s (non-binding) legal status when it was enacted (as in the cases of France and India), and sometimes in contrast to established caselaw (as in the case of Brazil). Accordingly, there is a need to closely examine how preambles have been judicially utilized in order to narrow the gap between drafting assumptions and the interpretive realities in constitutional adjudication.