Balkinization  

Saturday, December 30, 2006

A Truly Poor Metaphor: "The Constitution is a Contract"

Brian Tamanaha

In response to my post yesterday listing the problems with the "orginal meaning" theory of constitutional interpretation, Bart DePalma, an articulate reader of this blog, argued in response that this theory is the only correct one. His argument rested on this claim: "The Constitution is a contract..." If we don't enforce the terms of the contract as the parties intended, DePalma argued, the contract is "a nullity."

It has often been said that the Constitution as "a contract." The Constitution is not literally a contract, of course, so this is meant in a metaphorical sense. This metaphor delivers a powerful conclusion: "We agreed to it, so we are bound by it." The beauty of this metaphor is that it glosses over many problems. Rather than go on at length about these problems, which are generally known, I will instead recite this passage by Robert Dahl (in his How Democratic is the American Constitution?) about the origins of this "contract."

I want to recall how the Constitutional Convention that met in Philadelphia during the summer of 1787 was made up. Although we tend to assume that all thirteen states sent delegates, in fact Rhode Island refused to attend, and the delegates from New Hampshire didn't arrive until some weeks after the Convention opened. As a result, several crucial votes in June and July were taken with only eleven state delegations in attendance. Moreover, the votes were counted by states, and although most of time most state delegations agreed on a single position, on occasion they were too divided internally to cast a vote.

My question, then, is this: Why should we feel bound today by a document produced more than two centuries ago by a goup of fifty-five mortal men, actually signed by only thirty-nine, a fair number of whom were slaveholders, and adopted in only thirteen states by the votes of fewer than two thousand men, all of whom are long since dead and mainly forgotten?


The usual response to this question is to point to the power to amend the Constitution. Roughly, the argument goes like this: if we don't like the terms of the "contract", we are free to change it. Since we don't change it, we agree to its terms as originally meant. As Sandy points out in his Our Undemocratic Constitution, however, it has become almost impossible to amend the Constitution, and this extreme difficulty was by design. Madison and Hamilton and others did not entirely trust the people (in whose name this contract is being enforced today) and their passions.

There are many serious arguments to be made about the Constitution and how it should be interpreted, but we should stop using the metaphor that it is a contract.

Addendum in response to several comments:

Sorry for not taking seriously the idea that the Constitution is literally a contract.

So let me see if I get it. Just over two hundred years ago, a few thousand people created a "contract" that was binding not only upon the majority of the people at the time who did not consent to the terms of the contract, but upon all future generations as well--many hundreds of millions of people, for hundreds and perhaps thousands of years. In addition, this intrepid group made it extremely difficult (and later nigh impossible) to alter the terms of the contract. And forever after, their shared views about the meaning of the terms of the contract controls all decisions, no matter how much change takes place in society, the economy, the political system, the population, technology, culture, and everything else.

Is that an attractive (or sensible) way to understand the foundational terms of our society and government?

Comments:

One might note that a good deal of contract theory, both in 1787 and at present, rejects the late nineteenth century view that persons are bound by their contracts no matter what. My own view is that the contract metaphor (see chapter III of the sacred text) is actually rather useful, as long as we understand the constitution as a neo-classical or, better yet, a relational contract and interpret the constitution according to principles of neo-classical or relational contract law.

Put differently, and in my favorite way, the move to contract solves hardly any interpretive constitutional problems, because almost every controversy in constitutional interpretation has an analogue in contract interpretation. So until we justify why the constitution should be interpreted consistently with a particular theory of contract, the move to contract does no work.
 

Viewing the Constitution as a contract is really not a bad way of looking at it. Most readers here are lawyers. What do you do when looking at a contract that seemed good at the time it was made, but is less favorable to you now that a market has changed? Well, first take a look at its own terms. It could provide that either party with no notice might void it at any time. Or it could say that either party might terminate with 30 days or one year’s notice. It could let a party out if it paid an amount agreed upon in advance as liquidated damages. It may send all disputes to binding arbitration or to the courts of a specified state.

The constitution is one kind of a contract. It is not a contract for membership in a club that you can quit at any time. It is not a marriage contract that can be dissolved only by the state, not by the parties. But is a national compact of government.

It is argued that the Constitution was adopted by men who are long dead and mainly forgotten, so why should we be bound. But this happens all the time. If you moved to a house in a development subject to a homeowners corporation formed by the developer, or to an apartment subject to a condo association, you are bound by the terms of those contracts, even though the developer is long gone. Get a job in an organized workplace, and you find yourself subject to the terms and conditions of the collective bargaining agreement, until such time as you can organize a decertification proceeding before the labor board. Buy a house and find yourself subject to easements agreed to by total strangers decades ago.

The argument that the Constitution was adopted by only 13 states is really ridiculous. Forty seven states have eagerly sought to join the Union since then, and each admission effectively ratified the system in place. That is unanimous. Even today, the District of Columbia is desperately seeking representation, and eventually statehood, in the existing system.

So the Constitution is undemocratic and difficult to amend. Pardon me, but that is the part that prevents a 51 percent majority from taking the following actions against the 49 percent minority. Deny their right to vote, put them in jail, enslave them, exile them, and eliminate their rights to due process and equal protection. Please explain what it wrong with that.

Maybe these people who are wringing their hands over the undemocratic practices of lame duck sessions and temporary appointment of interim Senators could turn their attention to a problem of democracy that that is nonfrivolous and serious: the outright denial of the right to vote for national legislators to the 500,000 citizens in the Capitol. After all, the US just fought a war to make Iraq adopt a constitution that allows all residents of the nation’s capitol to vote in both houses of the legislature, and some of those fighting for that right were from DC.



Brett recently argued that the confederates should have been able to secede because the Constitution was silent on the question of secession. Well the lawyers at this site should apply their contract interpretation skills to its language. They would find that all disputes are referred to the judiciary headed by a Supreme Court with original jurisdiction over disputes between states, and might advise the confederates to avail themselves of this right. They would find a clause allowing states to make Congress summon a new constitutional convention to address the issue of separation, and that Robert E. Lee himself recognized the appropriateness of this course as early as 1861. They would find that the Article V amendment process could provide for an amendment allowing 11 states to leave, provided some northern states could be persuaded to let them go, under appropriate conditions.

The admission of new states required the consent of parties on both sides. The territory had to democratically form a territorial government and seek admission. Congress had to agree to admit the new state by statute. There was consideration on both sides of the process of admission. Many lawyers would say that this bilateral contract could not be abrogated by the simple decision of one party to leave, absent an agreement to that effect in the documents.

Most civilized people, then and now, agree that peaceful means of dispute resolution should be attempted before armed warfare, but the confederates disagreed. By the way, the confederates started the war because they fired the first shots on Fort Sumter, so there was no war of northern aggression. The United States had the same right to defend itself in 1861 that it had in 1941 and 2001.
 

I seriously beg to differ (even if I am not a lawyer). But commercial law expounds on the nature of contracts, and I cannot believe a lawyer, who I presume must study commercial law, could suggest that the Constitution is not a literal contract.

I cannot imagine a more exemplary case of a social contract ever written. Of course, it is not an exhaustive contract (I'm not sure that is even feasible). But contracts spell out the terms and conditions of the parties, which then bind themselves by affixing their signatures. And that is precisely what has happened literally, not metaphorically, as the colonies ratified the constitutional congress's terms and conditions as this nation's supreme governing contract that has been and is the supreme contract of the land.

Like all contracts, the Constitution spells out the "dos" and "don'ts," the "hows," the "whens," "wheres," and the "whys," and you don't think this fits the definition of a contract? It even spells out the remedies for breach of contract, how to modify it, etc. In what possible sense is the Constitution not a literal contract? And it sure is also a literal social contract!

I'm dumbfounded that a lawyer could make such a preposterously false (dare I say "stupid" and "incompetent") statement. There is nothing metaphorical about the Constitution as a contract, because it has ALL the known properties of a basic contract in a every literal sense of that term. After 220+ years of operating under the terms and conditions of this obvious contract, to which the parties all agreed and affixed their affirmations, please tell your readers why the Constitution is not an exemplary form of a literal contract, and of a literal social contract at that!
 

The gay species,

The answer is very simple. If they can deny it is a contract (in both metaphorical and substantive formd), then it reduces the weight that must be attributed to its meaning (and arguments for original meaning) and leaves it more open for the alleged wisemen (read "law professors" and "judges") to discover emanations hiding in penumbras. In other words, it reduces the requirement for their interpretations to have ANY relevance to the plain words of the Constitution. But, that is all another argument for another day.
 

Heh,

Well gee, I find myself agreeing with a lot of Vince's comments.

I'm also not a lawyer, but I am a systems analyst and the biggest difference between that and being a lawyer is that you can't bullshit a computer the way you can a judge, jury, or client...

Anyway, this is something I've thought about a bit, and gee, I think it's really clear that the Consitutution is a *treaty* and that treaties are a species of contract.

Now I've heard lawyers that I respect a lot insist that treaties are NOT contracts. I've heard lawyers and others adamantly deny the Constitution is a treaty.

But I think the plain meaning of the Articles of Confederation desn't really leave much doubt that it is a treaty, and if a treaty isn't contract what the heck is it?

An agreement perhaps? This is just a quibble over terminiolgy.

Bottom line is that it's the law of the land until such time as one or more of us muster the resources required to change it.
 

Professor Tamanaha:

I am honored that one of my posts generated enough interest to merit a post here. If I may respond to a couple of your points.

It has often been said that the Constitution as "a contract.

Actually, I was a lonely voice making this argument in my Con Law classes. My "living Constitution" professors both gave me blank stares when I asked them if this was a theory advanced by others. It was not until I did further research on my own that I found others making this argument.

The Constitution is not literally a contract, of course, so this is meant in a metaphorical sense.

Actually, I mean this literally. To me, the Constitution is best viewed as a compact between the Government and the People to limit the powers of the former and to guarantee the rights of the latter from the powers of the former.

You touched upon one reason why the contract view is powerful. Let me offer a couple others.

If the Constitution is viewed as a contract between the Government of the People, the Government exercise of the powers granted under this contract have more legitimacy because the People affirmatively granted these power to the Government.

On the other hand, the Government entered into a negative contractual obligation to limit its exercise of power to those enumerated in the Constitution and and affirmative obligation to protect the rights of the citizenry.

My question, then, is this: Why should we feel bound today by a document produced more than two centuries ago by a goup of fifty-five mortal men, actually signed by only thirty-nine, a fair number of whom were slaveholders, and adopted in only thirteen states by the votes of fewer than two thousand men, all of whom are long since dead and mainly forgotten?

To do otherwise effectively ends our constitutional republic. This is perhaps the strongest argument in favor of viewing the Constitution as a contract which imposes affirmative and negative obligations on the Government, including its judicial branch.

If the Constitution is viewed as a "living document" which may be amended at will by the judicial branch of the Government, then the only limits on federal power are those which the Courts deign to recognize and individual rights become privileges which Courts may grant or withhold at their whim.

As Professor Levinson has correctly observed, the Constitution is often a limit on democratic national government with the goal of protecting small states, minority groups and the individual citizens. However, the result of feeling free to ignore a Constitution written by long forgotten dead men would be less and not more democracy.

The proponents of a "living Constitution" do not propose that the democratic branches of our government are free to ignore the strictures of the Constitution. Rather, they argue that only unelected courts have the power to rewrite the Constitution while the People and their elected representatives are bound by the Constitution as rewritten by the Courts.

Finally, as to the argument that the Constitution is hard to amend. This is as it should be. If the Constitution could be amended by a simple majority, then it would be reduced to a simple statute and the purpose of restraining the government would be lost.

However, I strongly suspect that promoting democracy is not the goal of the proponents of a "living Constitution." They do not wish to promote further democracy so much as they wish to bypass the democratic process to enact policies which would not have a realistic chance of gaining a majority vote.
 

Personally, I find it useful to think of the Constitution as a contract. IMO, though, the contract is between citizens rather than states and is implicitly ratified each time new citizens reach the age of majority. Because it's always ratified at the present moment, it should always be interpreted at the present moment.

With that thought in mind, let me wish hls and brett a very Happy New Year. :)
 

Let's all keep in mind that a "statute of limitations" had no bearing or conceptual reality in the 18th C.

Granted, today we'd add, "binding on heirs, successors, and assigns," lest quibbling attorneys could claim "death" of a party negated the whole contract. But since the "parties" to this Constitutional contract are all alive and well and still operating under its provisions, not even attorneys can claim "death" negates the contract. Not even probate enters the picture.

Lest equivocation (the last refuge of scoundrels and attorneys) find some escape clause, let's all remember that contract is its sui generis, of which "bargain, treaty, compact, pact, entente, convention, cartel, concordat" are all sub-species.

Finally, Article VII of the Constitution states, "the ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same."

And lest we enter obscurantism, deconstruction, and revisionism wholesale, according to today's literary theorists and revisionists, the definition of a "contract" according to the New York Public Library Desk Reference, (not to mention all the states' uniform commercial codes which are amplifications), is, "a commitment between two or more parties, enforceable by law" (426).

Again, I insist, yes demand, that those flimsy-minded attorneys who believe the Constitution is a "truly poor metaphor for contract," show the rest of us normal folk why it is not a literal contract in ALL senses, sui generis and sub-species, including a social contract of the highest order!

Actually, if it can be done, we can ruin all of English Common Law before Congress, the Courts, and the President whittle anymore of it away (let's just get there pronto). Plus, I'll be able to "default" without defaulting, because there is nothing I'm defaulting, since nothing is ever or will ever be a contract to default.

BTW, the next post lamenting the diminution of the Geneva Conventions, writ of habeas corpus, due process, and "human rights" (which are not a "contract" according to the author) must necessarily keep silent, or is it the case that attorneys get to argue opposite sides of "meaninglessness" simultaneously as just another one of their social constructions of indeterminate rhetoric without stable meaning?

In a world of attorneys' metaphors we can ignore "judgments, trials, discovery, interrogatories, agreements, levies, child-support, spousal support, class action, prima facie, due diligence," and the whole legal linguistic armamentarium as just plain metaphorical nonsense. It's all fiction after all.
 

Granted, today we'd add, "binding on heirs, successors, and assigns," lest quibbling attorneys could claim "death" of a party negated the whole contract.

By the end of the 18th C it would have been very difficult to make a contract perpetual, in the sense of binding on one's heirs in their own right.* At common law, real property could be tied up forever through the doctrine of primogeniture and a legal grant called a fee tail. Most American states eliminated primogeniture and abolished fees tail (Jefferson was responsible for these reforms in VA and was very proud of them).

In addition, contracts were kept from operating too far into the future by something called the Rule Against Perpetuities. Property was kept away from perpetual corporations such as the Church by the doctrine of mortmain.

In short, at the time the Constitution was ratified, it was very hard to project a legally binding agreement into the future. The big exception was slavery, which, of course, had no element of free agreement.

*It's possible to bind one's heirs in the sense that your estate can't try to enforce on your behalf a right you gave up. It's much harder to bind your descendants as individuals if they have their own, legally independent right.

Again, I insist, yes demand, that those flimsy-minded attorneys who believe the Constitution is a "truly poor metaphor for contract," show the rest of us normal folk why it is not a literal contract in ALL senses, sui generis and sub-species, including a social contract of the highest order!

Treating the Constitution as a contract creates some legal issues, especially when it comes to consent. While I believe that those issues can be resolved -- see my post above -- reasonable people can disagree about them.

Lots of lawyers, including some Founders like Hamilton, referred to the Constitution as an "organic document". Think of this as something like Articles of Incorporation for a corporation.

The Constitution can also be thought of as a law. Indeed, many of the principles of interpretation which judges use to interpret the Constitution come from rules of statutory construction rather than the construction of contracts (there is a good deal of overlap).

All of these ways of treating the Constitution have issues which must be addressed. That's because Constitutions don't fit neatly into any of the usual categories, but are in many ways sui generis.
 

or the constitution could be, as hla hart suggests, a rule of recognition
 

I'll boil it down to the basics:

If the Constitution isn't binding on the government, why should the people feel bound to the government it creates? Why obey the laws of a lawless government? Because you'll be shot if you don't?

It's a contract, or the government is illegitimate, a "might makes right" construct with no claim but fear to our obedience.

So, you want a people who feel they're part of a deal which binds citizen and ruler, or you want a people chaffing under the yoke? Because legal realists are doing a dandy job of creating the latter.
 

I've been away for a few days, but I think we need to remember the Article VI oaths too. Current officeholders all give explicit consent to be governed by the Constitution. That makes the Constitution an awful lot like a contract. I also think it means that current office-holders should accept the Constitution on its own terms--that is, in line with what how "this Constitution" defines itself. I think that the "this Constitution" clauses and other constitutional indexicals (like "now" and forms of "here") implicitly define the Constituion as a historically-situated text.

Judge Easterbrook's reply to Jed Rubenfeld, Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119, 1121-22 (1998), makes a compelling argument along this line. "Our constitutional order does not depend on hypothetical contracts. There are actual contracts. Like other judges, I took an oath to support and enforce both the laws and the Constitution. That is to say, I made a promise--a contract." Id. at 1122.
 

Current officeholders all give explicit consent to be governed by the Constitution. That makes the Constitution an awful lot like a contract.

Witnesses take an oath to tell the truth, but we don't enforce that oath under contract law. Nor do we enforce violations of the oath of office under contract law.

Like other judges, I took an oath to support and enforce both the laws and the Constitution. That is to say, I made a promise--a contract.

That contract would be separate and distinct from the Constitution.

As I said above, I personally do find it useful to treat the Constitution as a contract, but it's just not possible to overlook the numerous problems with that approach. Nor is it reasonable to insist on that as the only possible approach.
 

Brian makes reference to Robert Dahl's "How Democratic is the American Constitution?", which was published in 2001, written pre-9/11. I read this book with great interest several years ago. Now Sandy Levinson has his 2006 book "Our Undemocratic Constitution." I haven't read Sandy's book yet but wonder what he may have added to Dahl's contribution on this subject. I somehow doubt that either Dahl or Levinson would take the contract approach. Are we all third party beneficiaries with enforceable rights under this contract approach?
 

Brian,

"Actually, I mean this literally. To me, the Constitution is best viewed as a compact between the Government and the People to limit the powers of the former and to guarantee the rights of the latter from the powers of the former."

It can't possibly be a contract bewteen the government and the people because the government is entirely a creation of the contract.

*

Mark,

Why would we punish a perjury as a breech of contract when it is so much more efficient to punish it as a crime?

Seems to me that perjury is a special case where the matter is so fundamental and universal that it simply is built into the system to save time and effort.

And can't a contract contain specific provisions contingent on the maintainance of good faith or full disclosure etc?
 

Me: "Current officeholders all give explicit consent to be governed by the Constitution. That makes the Constitution an awful lot like a contract."

Mark: "Witnesses take an oath to tell the truth, but we don't enforce that oath under contract law. Nor do we enforce violations of the oath of office under contract law."

Right. My main point isn't that the Constitution is literally a contract, but that it gets its legitimacy as binding on the government in the same way that contracts do--from explicit consent. The Constitution establishes a shrink-wrapped government--we can't get in to exercise power without agreeing to be bound by the Constitution.

It's not hard to find people using breach-of-contract rhetoric when they talk about the oath of office. See, e.g., one of the comments here: "Breaking a solemn Oath of Office to protect and defend the Constitution is a breach of contract."

Easterbrook: "Like other judges, I took an oath to support and enforce both the laws and the Constitution. That is to say, I made a promise--a contract."

Mark: "That contract would be separate and distinct from the Constitution."

True. But it's a contract to be bound by the Constitution, and also a contract compelled by the Constitution. And it obviously limits Easterbrook's power, or any other official's power, in a perfectly straightforward way. Again, my main point is that an important part of the reason why the Constitution is binding on current officials is the same reason why contracts are binding on those who make them.
 

Why would we punish a perjury as a breech of contract when it is so much more efficient to punish it as a crime?

We wouldn't. I understood Chris to be arguing that the oath was evidence that the Constitution was a contract. My response pointed out why that didn't necessarily follow.

For all that, though, Chris's follow-up comment indicates I misunderstood him.

My main point isn't that the Constitution is literally a contract, but that it gets its legitimacy as binding on the government in the same way that contracts do--from explicit consent.

I think it gets its legitimacy as binding on the government because of its ratification by the people in their sovereign capacity. That makes it more similar to a law, which gets its legitimacy from the recognized authority of the lawmaker.

IOW, the Constitution is not law to the government because the government agrees or because government officers agree. It is law to the government because there is a power superior to government which commands it.
 

Mark: "I think it gets its legitimacy as binding on the government because of its ratification by the people in their sovereign capacity. That makes it more similar to a law, which gets its legitimacy from the recognized authority of the lawmaker."

FWIW, Article VI says the Constitution is a law.

Mark: "IOW, the Constitution is not law to the government because the government agrees or because government officers agree. It is law to the government because there is a power superior to government which commands it."

I think that's consistent with saying that the oath supplies ample justification for viewing government officials as bound by it. Article VI says that the Constitution is the supreme law of the land, and that all officials are to be bound to it on oath. Seeing the oath as a tremendously important manifestation of explicit consent doesn't mean we can't also appreciate other sources of the Constitution's authority to command, e.g., from the Constitution's process of ratification.

That said, I'm a bit less concerned with whether the initial process of constitutional-shrink-wrapping the government was legitimate than with whether our government is, in fact, constitutionally shrink-wrapped.
 

I think that's consistent with saying that the oath supplies ample justification for viewing government officials as bound by it.

I agree with this. But I'd also go further and say that, oath or no, they are bound by it anyway.

I'm a bit less concerned with whether the initial process of constitutional-shrink-wrapping the government was legitimate than with whether our government is, in fact, constitutionally shrink-wrapped.

Fair enough. I agree.
 

I just want to modify my last answer a bit. I do think it important today that there are limits on government. It remains important, though, that those limits are seen as legitimate. In a democracy, the majority needs to understand why restraints are necessary, because it's so difficult to achieve that restraint by other means.
 

Charles Gittings said...

Brian,

The name is Bart. The movie director Brian DePalma is a very distant relative whom I have never met.

Don't feel bad. I have lost count of the number of others who made this transposition.

"Actually, I mean this literally. To me, the Constitution is best viewed as a compact between the Government and the People to limit the powers of the former and to guarantee the rights of the latter from the powers of the former."

It can't possibly be a contract bewteen the government and the people because the government is entirely a creation of the contract.


I disagree. The national government preexisted the Constitution. Indeed, it began sua sponte without any sort of creating document during the Revolution.
 

Bart,

That just isn't correct. Each of the Colonies had a functioning legislature which had been formed pursuant to the various charters and grants establishing them. The original Continental Congress was comprised of delegations from those state bodies, and the Articles of Confederation, by their own terms, were an agreement between sovereign states for their mutual defense etc; see Arts. of Confederation I-III etc.
 

Charles:

You appear to be arguing that the scope of federal power was less prior to that it was after the enactment of the Constitution. I do not dispute that point.

What I am saying is that there was a national government with some level of power long before the enactment of the Constitution. Therefore, I would disagree with your contention that the Constitution could not be a contract between the national government and the People because the national government did not exist before being created by the Constitution.
 

Has Constitutional Law become a contract sport? A little consideration, please!
 

Bart,

I'm not doing anything more complicated than pointing out that your argument is erroneous. The first national government was the 2nd Continental Congress (1775-1781), which was convened by agreement (at the 1st Cont. Cong.) between the states and became a loose coalition government with independence. The second was the Congress of the Confederation (1781-1787), upon the ratification of the Arts. of Confederation, which was a treaty between the states, and the third is the current government under the Constitution, which was is treaty that revised the Arts. Confederation.

From then until now, the federal goevernment has existed as an agreement between the states acting as *agents* for the people. The idea that the federal government is a party to the Constituion is a pure figment: the federal government is a creation of the constitution.
 

The first national government was the 2nd Continental Congress (1775-1781), which was convened by agreement (at the 1st Cont. Cong.) between the states

This can't be right. The states didn't exist in 1775 or, obviously, at any time before that. They were colonies until the Declaration of Independence. However you see the union of the Continental Association period -- as a creation of the people (my view) or of the colonies -- it was NOT a creation of "states".

From then until now, the federal goevernment has existed as an agreement between the states acting as *agents* for the people.

Except that there are those of us who see the people as sovereign. For us, the people agreed among themselves to create the federal government and accept, subject to certain limits, the existing states.

The idea that the federal government is a party to the Constituion is a pure figment: the federal government is a creation of the constitution.

I do agree with this.
 

Charles:

Thank you for your summary of the different guises of the national government in power from the Revolution to the present.

Both the national government in existence at the time and representatives of the People were parties to the enactment of the Constitution.

Prior to the Constitution, the national government was a confederation of colonies and then states. This confederation of states sent representatives to the Constitutional Convention. That Convention drafted a Constitution setting forth limits (albeit expanded) on the powers of the national government and preserved a space of liberty in the Bill of Rights which the national government could not infringe.

This proposed Constitution was then sent to the States for approval by the People's elected representatives and was marketed directly to the People through the Federalist Papers and other media.

You have all the makings of a contract - the government making an offer in the form of the draft Constitution, assent by the representatives of the People and concessions by both sides.
 

Gee Mark, I find that comment kind of shocking. States, colonies, provinces, whatever --

The point remains: they were political entities with functioning legislatures who considered themselves responsible to and representative of their respective citizens. The Continental / Federal government was purely a creation of delegations appointed by the states / colonies for the purpose of acting in concert.

They didn't just pop into existence out of nothing. Virgina was the oldest and Delaware the youngest, but these were functioning governments concerned with the day to day lives of the people within their jurisdiction. You know -- stuff like crimes, marriages, deeds, estates, contracts, etc.

*

Bart,

You're just confusing yourself now. The existing federal government wasn't a party to anything other than in the trivial sense that *every* citizen was a party to it.

When my attorney talks to your attorney about a deal for a partnership, it is not the attorneys who are making the offers -- they are merely acting as our agents.





The role of the government is very simple here: they are public servants.
 

Gee Mark, I find that comment kind of shocking. States, colonies, provinces, whatever

Some people think the distinction is important. Southerners before the Civil War argued that the states created the Union. Lincoln was the one who pointed out the chronological impossibility of this and that in a very real sense, the Union created the states.

The point remains: they were political entities with functioning legislatures who considered themselves responsible to and representative of their respective citizens.

While it varied from state to state, many representatives to the two Continental Congresses were appointed by extra-legal "conventions" after the royal governors dissolved the colonial legislatures. They were not so much "political" entities as revolutionary ones.

The Continental / Federal government was purely a creation of delegations appointed by the states / colonies for the purpose of acting in concert.

Depends on what you mean. The Continental Association was a "voluntary" association signed by individuals across the colonies. That was, IMO, the real origin of the Union.

As for the appointment of delegates, see above. As I see it, the creation of the national government was not a political act, but a revolutionary one. It's a mistake (again, in my view) to look for legal precedent or consequence from that.
 

And the distinction between a "political act" and a "revolutionary act" is . . . ?

Mostly imaginary.

Frankly, I don't find Lincoln's anti-secession arguments at all compelling in this context. There is simply no need to generate a chicken and egg problem here. It's absolutely clear that the national government was established by a treaty bewteen sovereign states, and the founding documents say so in plain english.
 

It's absolutely clear that the national government was established by a treaty bewteen sovereign states, and the founding documents say so in plain english.

It's not at all clear to a great many people, but obviously there's no point in continuing the discussion.
 

Are all laws contracts, or are some simply statements?
What is a will [last will and testament]? Is it a contract with the heirs to an estate?
Is the Constitution a priori? Can a contract be a priori?

Is it possible for us to follow an original intent? What is the difference between original intent and original reception? Can we follow the Constitution without interpreting it? (once we interpret it it's "living." ) Is it possible to be an 18th century man in the 21st century? Is it possible to ignore history? A reactionary would say it's desirable and because it's desirable that therefore it's possible.
Reactionaries are idiots.

We can either accept that we interpret the constitution, that's it's no more immune to history than any other text (what's the original meaning of Don Giovanni or Hamlet?) or we can pretend to live in the past, in which case we live a lie. Scalia is a liar. He lies in the service of what he thinks is right.
Some people approve. I don't.
 

Charles Gittings said...

Bart, You're just confusing yourself now. The existing federal government wasn't a party to anything other than in the trivial sense that *every* citizen was a party to it.

We appear to have differing views of the government. You view the government as a pure cipher for the People. I take a libertarian view of the government as an entity distinct from the People which must be limited and controlled by the People.

Given that the Government is made up of persons acting on their own ideas of policy against which there is generally no legal recourse for failing to follow popular opinion, I would suggest that the Government as an aggregate is better viewed as a separate entity rather than an agent of the People.

I admit that my view of government is not a perfect fit with my theory of the Constitution as contract because I use the directly elected state legislators as my agents for the People since they are the closest and most accountable to the People. The distinction between the government and the People would have been much cleaner if the US had used the model used in Iraq of a direct vote of the People to approve the Constitution.
 

Bart,

"We appear to have differing views of the government. You view the government as a pure cipher for the People. I take a libertarian view of the government as an entity distinct from the People which must be limited and controlled by the People."


What absolute nonsense. This has nothing to do with anyone's "theory" of anything, it's a just a simple case of you torturing the facts to make 1 + 1 = 3 because your precious "theories" mean more to you than reality does.

As, for example, on Marty's thread regarding the latest effort of DOJ to prevent Congressional oversight of the Bush administration's illegal renditions and interogations on the "theory" that public servants sworn to uphold the laws of the United States enjoy "attorney client privilege" in regard to conspiricies to commit FEDERAL FELONIES and war crimes.

As for the Iraqi Constitution...

It's just too early in the morning for to deal with such surrealistic goo. I'll leave that one for somebody else.
 

Bart DePalma:

the Government entered into a negative contractual obligation to limit its exercise of power to those enumerated in the Constitution and and affirmative obligation to protect the rights of the citizenry.

And:

Finally, as to the argument that the Constitution is hard to amend. This is as it should be. If the Constitution could be amended by a simple majority, then it would be reduced to a simple statute and the purpose of restraining the government would be lost.

However earnest is Bart's commitment to the Constitution-as-contract, these two statements are remarkable in their combined inconsistency with history. The Constitutional Convention was called to cure various ills of the Articles of Confederation. The Conventioneers flouted their mandate, producing a document that replaced rather than amended the Articles. My understanding is that at least some historians regard this choice by the delegates to the Convention as essentially a rebellion.

So it seems odd, to say the least, to suggest that "the [national] Government" was somehow a contractual party to a rebellion---however un-violent---against itself.

Moreover, the Articles provided for amendment via unanimity. Given the second quote above, it's hard to understand how we can think it's "as it should be" that the Constitution is hard to amend, yet view its inception as a valid contract when that inception required the total disregarding of an existing legal document. (While one might argue that the ratification of the Constitution constituted unanimous elimination of the Articles government, I'm unaware of a statement to that effect in the Constitution or elsewhere.)
 

I think it's best to say that the Constitution is not quite a contract, but an offer made on behalf of everyone who has contributed to the creation of the government. (For those who initially created the government, it was a contract, but for us today, it's just an offer.) We accept the offer and make a contract by taking a position within the government. The government doesn't agree to limit its own powers--those who exercise power as part of the government agree to limit their power. Article VI is a way of constitutionally shrink-wrapping the government.
 

Brian: "Sorry for not taking seriously the idea that the Constitution is literally a contract.
So let me see if I get it. Just over two hundered years ago, a few thousand people created a "contract" that was binding not only upon the majority of the people at the time who did not consent to the terms of the contract, but upon all future generations as well--many hundreds of millions of people, for hundreds and perhaps thousands of years. In addition, this intrepid group made it extremely difficult (and later nigh impossible) to alter the terms of the contract. And foreever after, their shared views about the meaning of the terms of the contract controls all decisions, no matter how much change takes place in society, the economy, the political system, the population, technology, culture, and everything else.
Is that an attractive (or sensible) way to understand the foundational terms of our society and government?"

First, the Constitution should be compared to the alternatives at the time. The Article of Confederation required unanimous consent, so the Constitution was an improvement. Hereditary monarchs headed almost all other governments at that time, and they could pass and veto any and all laws for any or no reason at whim, could do no wrong, and were above the law.

Second, the Constitution has amendments addressing matters such as “how much change takes place in society, the economy, the political system, the population, technology, culture, and everything else.” The online Constitution Annotated at the Library of Congress website summarizes and analyzes many Supreme Court cases explaining and applying the Constitution to changing conditions. Many contracts, such as testaments and trust agreements, are binding on third parties for many years to come, so why not the Constitution?

Third, the amendment process in Article V has worked to some extent. Free people abolished slavery, whites gave the vote to blacks, men let women vote, state legislatures gave up their right to elect Senators to the people, wealthy people abolished the poll tax, and folks 21 and older approved the 18-year old vote. Even the Senate is not immune from Article V reform. An Article V amendment cannot reduce equal suffrage in the Senate, but it could reduce the Senate’s duties to the level where they are purely ceremonial.

Fourth, the amendment process is hard because it keeps bad ideas out of the Constitution. Suppose you had been in Philadelphia back then and had suggested an easier process. For example, suppose you told them that the constitution should be amended any time a joint resolution was approved by a two-thirds vote of each house of the Congress and signed by the President. Now, that would be a lot easier than Article V.

We do not have to guess what would have happened, because we know. The first, unratified Thirteenth Amendment was passed by Congress the day before Lincoln’s Inauguration and was signed by President Buchanan, even though Article V gives the President no role whatsoever in the amending process, except symbolic. It would have been part of the Constitution:

No Amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any state, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

-Joint Resolution of Congress, Adopted March 2, 1861

So, slavery would have been made a permanent, unamendable part of the Constitution. This is not hypothetical. This would really help us today in spreading democracy and human rights across the world. Slavery might have ended eventually, but only when each and every slave state finally got around to it in its own good time, and things like the vote, civil rights, and equal protection could wait forever. Some states might never have done so. Any state could reintroduce slavery. And no amendment could ever change it. Of course, some defenders of this approach may argue that this might have avoided all the bloodshed of the Civil War. But they conveniently forget that, even as this amendment was being drafted, the confederates themselves started that war.
 

"Many contracts, such as testaments and trust agreements, are binding on third parties for many years to come, so why not the Constitution?"

Judge Easterbrook says something very similar: "Contractual rights are inherited. If I buy a house with borrowed money, the net value of the house is what my heirs inherit; they can't get the house free from the debt. This is so whether my heirs consent to the deal or not; contract rights are passed from one generation to another as written." 66 Geo. Wash. L. Rev. at 1121.
 

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The opposite of love is not hate, it's indifference. The opposite of art is not ugliness, it's indifference. The opposite of faith is not heresy, it's indifference. And the opposite of life is not death, it's indifference.
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