Opinion No. (1992) ( 1992 )

RE: OPINION REQUEST REGARDING PRECEDENTIAL VALUE OF PORTIONS OF THE PREAMBLE OF THE UNITED STATES CONSTITUTION OVER PROVISIONS IN THE OKLAHOMA CONSTITUTION

ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR RECENT REQUEST SEEKING AN ATTORNEY GENERAL'S OPINION IN WHICH YOU, IN EFFECT, ASK:

DO PROVISIONS OF THE PREAMBLE OF THE UNITED STATES CONSTITUTION TAKE PRECEDENT OVER PROVISIONS OF THE OKLAHOMA STATE CONSTITUTION?

BECAUSE THE QUESTION YOU POSE IS WELL SETTLED, WE ARE RESPONDING BY WAY OF AN INFORMAL OPINION, WHICH IS THE OPINION OF THE UNDERSIGNED COUNSEL RATHER THAN A FORMAL OPINION OF THE ATTORNEY GENERAL.

LONG AGO, THE UNITED STATES SUPREME COURT DETERMINED THE ROLE OF THE PREAMBLE TO THE UNITED STATES CONSTITUTION. IN JACOBSON V. MASSACHUSETTS, 197 U.S. 11, 22 (1905), THE SUPREME COURT ADDRESSED THE VALIDITY OF AN ARGUMENT THAT A PARTICULAR SECTION OF A MASSACHUSETTS STATUTE WAS IN DEGRADATION OF THE RIGHTS SECURED BY THE PREAMBLE TO THE UNITED STATES CONSTITUTION. IN FINDING THAT THE PREAMBLE WAS NOT THE SOURCE OF SUBSTANTIVE LAW, THE COURT STATED:

"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 SUCH AS MAY BE IMPLIED FROM THOSE SO GRANTED. ALTHOUGH, THEREFORE, ONE OF THE DECLARED OBJECTS OF THE CONSTITUTION WAS TO SECURE THE BLESSINGS OF LIBERTY TO ALL UNDER THE SOVEREIGN JURISDICTION AND AUTHORITY OF THE UNITED STATES, NO POWER CAN BE EXERTED TO THAT END BY THE UNITED STATES, UNLESS, APART FROM THE PREAMBLE, IT BE FOUND IN SOME EXPRESS DELEGATION OF POWER, OR IN SOME POWER TO BE PROPERLY IMPLIED THEREFROM."

SINCE THE SUPREME COURT'S OPINION IN JACOBSON, COURTS HAVE UNIFORMLY HELD THAT THE PREAMBLE TO THE UNITED STATES CONSTITUTION IS NOT THE SOURCE OF SUBSTANTIVE OR CONTROLLING LAW. SEE, FOR EXAMPLE, UNITED STATES V. KINNEBREW MOTOR CO., 8 F.SUPP. 535, 539 (W.D. OKLA. 1934).

FOR THE ABOVE STATED REASONS, IT IS THE OPINION OF THE UNDERSIGNED COUNSEL THAT THE PROVISIONS OF THE PREAMBLE TO THE UNITED STATES CONSTITUTION, NOT BEING THE SOURCE OF SUBSTANTIVE LAW, DO NOT TAKE PRECEDENT OVER PROVISIONS OF A STATE CONSTITUTION.

(NEAL LEADER)