Author’s Note: This is an abridged version of “The Constitution of the United States of America as a Contract ” – one of the “communiqués” from my book Communiques from the Vast Right-Wing Conspiracy. This particular communiqué discusses our Constitution from what this writer believes to be a novel perspective – analyzed as a legal contract rather than as a political document – and from that, how there has been a Progressive-driven breach of contract. The original of this communiqué includes some of the “legalese” of contract interpretation principles used in law; here I have mostly excised those and distilled to the essence of the concept. In that sense, you will find this piece not unlike Mark Levin’s new book “Rediscovering Americanism: And the Tyranny of Progressivism” (although my book was released a year before) – I say that not to brag, merely to acknowledge kinship with another who is working to warn Americans about the manifest anti-Americanism of the Progressive division of Collectivism.
The Constitution of the United States of America as a Contract
The Constitution is the guide which I never will abandon.
Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties. And not to Democrats alone do I make this appeal, but to all who love these great and true principles.
To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.
It is submitted to you that we could (and should?) look at the Constitution as equivalent to a legally binding contract between the people of the United States of America as one party to the contract, and the federal government as the other party.
Discussion regarding the Constitution of the United States of America typically revolves around a debate between “strict constructionists” (Conservatives and objective legal scholars) and “living document” proponents (Progressives and agenda-driven “legal scholars”). In the interest of illuminating the fundamental premise of the debate, let’s approach it from a slightly different angle – by applying legal concepts from “contract law.”
In its basic form, a “contract” is a voluntary agreement (not procured by duress or threat) between two or more people or entities, under which there is an exchange of value called “consideration” – which can be money from one in exchange for a good or service from another; or an exchange of services; or an agreement by one that if the other refrains from doing something, the first person will do something or refrain from doing something. In other words, each party procures what it sees as some benefit in return for providing what the other side sees as some benefit, and each also incur some obligation (e.g., to pay or to perform) – what contract law refers to as “mutuality of benefit” and “mutuality of obligation.”
Inevitably with written contracts there may arise disagreements as to what the written language really means, and how it should be applied in actual practice. Over time courts have developed rules for “contract interpretation.” In essence, where the language is “clear and unambiguous” the courts will enforce the contract “as written” even if a party says that it was not how they understood the terms to be (unless that party was the victim of fraud or coercion from the other party). This makes perfect sense, for if a party could extract themselves from a contract’s obligations merely by claiming that they understood it differently it would make a mockery of the whole process.
A more complicated issue that courts deal with is how to apply contractual language that isn’t totally clear, that is “vague” or “ambiguous.” When confronted with such issues, the default rule for courts is to attempt to interpret that language so as to affect the “intent” of the parties. As said above, when the language is “clear and unambiguous” it controls. But when not, courts will look to the testimony of the two parties to see what they (each) had in mind when the reached a final agreement and executed the contract, including the history and back-and-forth that took place before final execution. Courts look to see if “there was a meeting of the minds,” i.e., that the understanding by each of their mutual obligations was fundamentally the same / not fundamentally incompatible. Courts may also look to the conduct of the parties during the pre-dispute performance phase of the contract and, if available, past practices between the particular parties, which can also help illuminate “intent.”
But the overriding goal is to “effectuate the intent of the parties” when it can be “gleaned.” Part of this process entails looking at the “document as a whole” … to the “four corners” of the document to help “glean” the intent of the parties, not just “cherry picking” certain portions of the document.
Which brings us to the Constitution of the United States of America. It is not unreasonable to consider it to be a “contract” – a political “principal contract” if you will, with statutes and regulations analogous to “accessory contracts” – between “we the people” and the federal government. In it “we the people” find value in the “consideration” of certain enumerated powers delegated to government, such as national defense, a court system for the peaceful resolution of disputes, etc. In turn, the “government” (and those individuals who serve in it) receive “consideration” first in its very existence as powers are delegated to it by the people, and of course the remuneration to those who serve within it.
Yes the language of the Constitution includes ambiguities (though nowhere close to the degree asserted by the “living document” proponents). It lays out certain delegated powers, distributed between parties to the contract, with express and implied boundaries to those delegated powers, and within the enumerated boundaries leaves (in effect) day-to-day operations to the delegates.
On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit of the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.
Where there are ambiguities, we can look to “the intent of the parties” insofar as we have the four corners of the document – which means that we include the Tenth Amendment – and we have the writings and other evidence of the “negotiations” leading up to the “execution” of the Constitution, i.e., the writings and other evidence from the Founding Fathers who drafted it. We also have the evidence of how the politicians and courts “applied” the Constitution in its first century and more, i.e., including the period during which the Founders were still alive and so, presumably, if the politicians and courts were misinterpreting the “intent” would have in unison spoken up and objected. And the “four corners” of the Constitution provide various principles, which can be applied to new and novel circumstances (such as changing technology) in order to effectuate the intent of the (Founding Father) parties and thus, of “we the people.”
Consider that while circumstances change, principles are eternal – it is principles that should take precedence and guide us as we encounter changing circumstances. The “living document” proponents would have us do the opposite, to displace bedrock principles with fluid circumstances (and thus subjective, if not “arbitrary and capricious” responses to changing circumstances). Consider too that the Constitution is only in part a document laying out the structure of government, the enumeration of powers granted and retained – it is also (and perhaps more importantly) a document embodying an understanding of human nature and historical experience (such as a proclivity of human beings to amass and abuse power) – and so a document designed to preemptively minimize and mitigate those undesirable characteristics of human nature via enumerated powers and the separation thereof.
Contrast the above paragraph with the following, from a 1912 campaign speech by what became the first elected Progressive President:
Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All that progressives ask or desire is permission – in an era when “development,” “evolution,” is the scientific word – to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.
So the very folks who decry “social Darwinism” would have us apply similar “interpretive Darwinism” to the Constitution. The “living document” Progressives completely misrepresent our Constitution. It is not, as they would have us believe, a technical document, a mere blueprint of a structure of government, which blueprint is susceptible to obsolescence as technological advancements and societal norms change. No, it is an eternal document of timeless truths.
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”
Lewis Carroll, Through the Looking Glass
Through their concept of “a living document” the Progressives would render the Constitution functionally meaningless, for at any given time its meaning would be whatever they say it is – what they said it meant before would be inoperative; and what they say it means today may be inoperative tomorrow. In other words, instead of a document delineating the scope and powers of the federal government, it would become a façade for dictatorial rule by whim of a Progressive elite – it would mean what they say it means, and what they say is what it means. It’s all rather Orwellian.
The Constitution is not, as Wilson asserted, a mechanical document – it is actually a document cognizant of human nature, which does not change or “evolve” (however much the utopian Progressives wish and intend it so, and no matter their irksome efforts in that regard). The structure of government it created was in recognition of human nature – with all its strengths and faults – and mindful of history, which in the end is the evidentiary trail of human nature. In other words, it recognizes and reflects the eternal reality that human nature makes government a necessary evil while history, that evidentiary trail of human nature, dictates that as government grows so does its power (and the concentration of power) – and such plays into the hands of the dark characteristics of human nature such as greed, compulsion to control others, tyranny and totalitarianism.
The Progressive “living document” proponents would have us “skip” the parts of our contract that they don’t like, including the amendment process – which we could analogize to both sides returning to the table to renegotiate a contract – and instead proceed directly to a sort of self-serving hybrid approach that is not even included in the Constitution (Supreme Court and regulatory state diktat). Consider that the amendment process brings back to the negotiating table both parties to the contract – the people of the United States and the federal government on the other side. Instead the Progressives would bar the people from the table, and instead only have elements of the federal government at the “negotiating” table – the Executive branch, Congress and the Judiciary.
Under the banners of “living document” and “changing circumstances” they would have us believe that the Constitution is inflexible, and so must, like a geriatric relative who isn’t entirely “with it” anymore, be given professions of love and affection, and given the courtesy of going through the motions by politely listening to it, but then safely discarded in deference to the current “with it” (Progressive-Collectivist) decision-makers.
Yet the Constitution is not “living” and so does not become geriatric. Rather, it contains within itself the seeds of perpetuity and renewal. First of all, its principles are eternal, and appropriate for all times and places. Further, in its brilliant design the Constitution allows “flexibility” within the execution of enumerated powers. And it provides a “living” aspect if the original design or enumerated powers somehow can be improved at some future time (ideally to better effectuate government’s fealty to the founding principles) – it’s called the amendment process. For this reason, the amendment process is deliberately difficult and slow, so as to provide time for reason to prevail rather than emotional or ill-considered (“living document” like) changes to be adopted in a heat of public passion or “crisis response” enabling subterfuge.
The Progressive-Collectivist is not satisfied with that, for the Progressive-Collectivist opposes the principles underlying the Constitution – individual liberty (inalienable rights) from our Maker, limited and diffused government delegated with the consent of the government. Instead they want the opposite – liberty delegated to the individual as government sees fit to share or reduce as it unilaterally decides from time to time, and in turn government concentrated into a centralized federal government, which in turn will ultimately be subservient to “global governance.”
From the ratification of the Constitution, until the FDR administration of the 1930’s, the U.S. Supreme Court (and the lower courts), when called upon, mostly remained faithful to the “intent of the parties,” the “original intent” of the Constitution – in other words, the courts were “strict constructionists.” It was only after FDR’s battles with the Supreme Court, most notably his infamous threat to “pack” the Court, that prior “interpretations” of the intent of the Constitution were upended, and under the cover of a manufactured “interpretation” of the Commerce Clause, there was a de facto revolution and the size and scope of the federal government given carte blanche to begin expanding with no meaningful restriction.
We beg to differ. Justice, if it means anything at all, requires the restoration of the Constitution based upon, and faithful to the letter and spirit, of those who created this “contract” … in the interest of justice we must effectuate the intent of the parties. And if we disagree with that intent, the Constitutional amendment process remains the just and Constitutional way to “modify the contract.” Justice is not, and will never be served by acquiescing to contractual / Constitutional revisionism procured through threat of force and intellectual dishonesty, for such gives sanction to illegitimate initial acts, and subsequent illegitimate acts. To render the Constitution a “living document” is actually to kill it.
Mr. Wigand is the author of Communiqués From the Vast Right-Wing Conspiracy, which is available on Amazon in both print and Kindle versions. Comments or questions for Mr. Wigand may be sent to: firstname.lastname@example.org— he will make every effort to personally respond to every email.