Originalism as contract theory
Agoraphilia suggests viewing the Constitution as a contract.
There's much to that, altho Randy Barnett has pointed out it's not quite contractual. It binds me, even tho in 1789 my mother's ancestors were in Italy and Austria, and for all I know my father's ancestors objected to it (and in either event, I wasn't alive yet). Barnett finds the basis for originalism in a variant of the view. What, he asks, makes a law morally binding? (As opposed to practically binding -- the consideration that those in power will punish you for not heeding it). His answer is that the law was made pursuant to a system created by our ancestors, and the implied agreement is that if those temporarily in power heed the Constitution, we will heed the laws made pursuant to it. If they could say the Constitution has evolved to let them do what they please, then we could say that, morally, there is no duty to obey the laws they create.
“To protect the weaker from the injuries and insults of the stronger were societies first formed; when men entered into compacts…” George Mason, Remarks on Annual Elections for the Fairfax Independent Company, April 1775
Black’s Law Dictionary- Compact “An agreement or contract between persons, nations or states.”
“The constitution not only constitutes the contract between a member and the association but it also constitutes the contract between a member or members and other members.” Amalgamated Clothing W’k’rs v. Kiser, 174 Va. 229 (1940).
Contract seems right to me.
Posted by: Rudy DiGiacinto at September 8, 2006 02:42 PM
It seems to me not much different from many organizational compacts which establish themselves with an eye toward continuation. The contractual nature seems implicit to me: these are the norms/rules of the system which are the liberties/encomberances of every citizen. You are bound to them as a citizen. However, the relatively unique "at liberty" assumptions about sovereign citizens of the compact means you are free to leave if you don't accept the "rules of engagement." Being new to the system, whether born into it with birth rights, or coming wholly de nova doesn't seem to me a moral grounds for disputing the de facto contract of the system, and especially when you are free to leave.
Posted by: W. Bailey at September 8, 2006 08:31 PM