Section 1 explains the concept of the preamble based on qualitative studies of preambles in fifty common law and civil law countries. Section 2 traces the origins of the U.S. Preamble and its legal status. Article 3 contains a typology of three legal functions of preambles: ceremonial-symbolic, in which the preamble serves to consolidate national identity, but has no binding legal force; the interpretation in which the preamble plays a preponderant role in the interpretation of the law and the Constitution; and the substance, in which the preamble serves as an independent source of constitutional rights. Section 4 emphasizes the importance of consensus preambles, describes the risks inherent in non-consensual preambles, and describes the advantages and disadvantages of drafting a preamble. The article focuses on Macedonia, Israel, Australia and the Lisbon Treaty and examines the social function of preambles in top-down and bottom-up conceptions and suggests some lessons for a future conception of a preamble. 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 style of wording appears in the Polish Constitution (« Those who believe in God as a source of truth, justice, goodness and beauty, and those who do not share this belief, but respect those universal values that come from other sources »). The debate on the EU preamble shows how difficult it is to reach consensus on common values in the context of different national histories.

It remains unclear whether the preamble will have a normative influence or promote a unified European identity. At present, the main merit of the preamble is that it shows the importance of the drafting process, which in turn shows the purpose of the preamble. From a legal point of view, there is little difference between the draft Treaty establishing a Constitution for Europe and the Treaty of Lisbon. The main difference after years of debate is the content of the preamble. However, Article 39 does not explicitly refer to the preamble. Therefore, the need to promote these values would remain even if the preamble were repealed. God or religion. A preamble may contain references to God. Some preambles emphasize the supremacy of God, such as the preambles to the Canadian Charter (« the 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 the Irish preamble mentions the Holy Trinity as « our ultimate goal » and as a source of authority.

to which all the actions of « peoples and States » must refer. 15 Conversely, the preamble may emphasize the separation of state and religion or the secular character of the state.16 The proper interpretation of the preambles is a point of contention for Heller. See District of Columbia v. Heller, 128 pp. ct. 2783, 2789 n.3, 2826 (2008). Although the preamble is drafted in a manner that appeals to many, it remains difficult to convince legal scholars of its superior legal status.50 Although Justice Harlan deprived the preamble of its legal force, its occasional use before constitutional courts suggests that although it is not an independent source of rights nor is it constitutionally relevant.51 This common law rule remains constitutionally effective in the states. in which the preamble to the Constitution enshrines a guideline.

Framework for the interpretation of the Constitution. If there are multiple interpretations, the courts prefer the option that is consistent with the preamble. For example, Article 39 of the South African Constitution states that in interpreting the Bill of Rights, the courts must « promote the values underlying an open and democratic society based on human dignity, equality and freedom » – words that appear in the preamble.70 The South African Constitutional Court has upheld the status of the Preamble as a guide for the interpretation of the Bill of Rights.