U.S. Constitution is a Contract, Not a Rule Book

By Douglas V. Gibbs

Yet another email attack intended to confuse what people think about the United States Constitution has hit the web.  The claim is that the idea the U.S. Constitution is a contract is a myth. The message further asserts that the Constitution, rather than being a contract, is a rule book, a set of instructions if you may, given by a bunch of delegates in 1787 to a soon-to-exist federal government.

The argument has been presented to serve as a distraction. The aim by the originators of this falsehood is to get those that support the Constitution to divide and bicker. Such a split enables them to cause distress among conservatives, and ultimately conquer the Constitution as the supporters look the other way because of the battle over whether or not the Constitution is a contract.

I am saddened that those spreading the attack against those that believe in the Constitution count themselves as believers in the principles of the Constitution as well, and have fallen for this attack.

However, the question has been posed, so I believe it is important for it to be answered.

In short, the Constitution is a contract, finding its roots in the concept of a social contract, an agreement by individuals to create a society where they can live together, mutually benefiting each other. Such a contract recognizes the conditions of the society, natural rights, functions of the government, and the pooling of powers for the purpose of protecting the society.

Once the social contract is accepted, the society determines what their defined territory is.  This establishes a right of birthplace, a feature not necessarily present in a society with no territory, such as one that is nomadic.

The social contract's development, in order to create a system of governance, often includes a written contractual agreement known as a constitution.  In the case of the United States, the Constitution in 1787 created a federal government.  The contract between the States and the new federal government established the governmental institutions, offices, procedures, duties, parameters, limits, and authorities for the new federal government, while also establishing a few prohibitions to the States in an effort to ensure the new federal government could function without interference in the duties granted to it. Through the principles established in the Constitution, the new government was then able to create laws, a defense force, a system of taxation, and the other aspects of government necessary for the proper functioning of a central governmental system.

The U.S. Constitution, while creating the framework of the federal government, also was written in a way to only allow the federal government to exercise the powers delegated to it by the States through the contract known as the Constitution. Whenever the federal government acts in a manner outside the authorities granted  as expressly enumerated in the Constitution, the central government is acting illegally, breaching the contract it was established through.

The concept of the social contract was originated by such persons like John Locke, who recognized the existence of natural rights, and the necessity of social contracts for society to prevail as human society develops and expands. Each of us, by birth, are participants in this contract, established the moment we are born in the society, through a kind of social contract called a filial contract.  The filial contract exists between the parents and their children, the terms being (according to John Locke) that the child will participate in the parent-child relationship, which includes protection for the children during their childhood, and support for the parents in their later years.

During the growth of the child, they engage with the larger society outside the immediate family unit, establishing a social contract with the other residents of the society. The social contract's terms include living in harmony, adhering to local laws, and adhering to the obligations to the larger community as an individual.

Though largely unwritten, social contracts can extend to written contracts which are more complicated.
In the case of the United States, that written contract is the U.S. Constitution.

In a society populated by people, conflicts arise, and some members of the society aspire to gain power over the society through government dictates and economic manipulation.  The Founding Fathers recognized this tendency of human nature, and addressed the problem by creating checks and balances throughout the federal government created by the written contract known as the U.S. Constitution.  Three branches of government were created, enjoying a separation of powers. A separation of powers was also established between the States and the federal government. The separation of powers not only created a guard against collusion, but also enabled the ability of the parts of government to be able to check other parts of government against abuses.

Among those abuses is the compromise by government of the rights of individuals.  Natural law dictates that rights are God-given, not provided by government, therefore, rights belong to the individual and cannot be taken away by government. Among those rights, according to the Declaration of Independence, is life, liberty, and the pursuit of happiness.  The Preamble of the Constitution reassures the protection of these Blessings of Liberty, and the Constitution expresses that the Congress of the federal government shall make no laws compromising those rights. Government, after all, has no right to these rights, because they are natural, and an integral part of the social contract. Natural rights are unalienable, and are recognized as such in the Constitution. The Constitution does not grant these rights, for they are God-given. The Constitution recognizes these rights, and indicates that no constitutional provision can be created to take away such rights.

Yet, governments intent upon becoming tyrannies attempt to seize the powers necessary to deprive people of their rights.  What these tyrannies never realize, however, is that natural rights are never lost.  They always belong to the individual members of the society.

Which brings us back to the Constitution, and the fact that it is a contract.  To ensure the new federal government did not become a tyranny, and that the experiment of self-governance in America stood the test of time, the delegates of the Constitutional Convention endeavored to create a contract by the States forming a United States central government strong enough to protect the union, yet limited enough in its powers that it did not devour the sovereignty of the individual States.

Rule books are easy to change, and can be changed at ease by the powerful elites in charge.  In sports, the all-powerful commissioners can alter the rules. But in a contract, the parties of the agreement must be involved in any changes.  If the Constitution is indeed a rule book, then the ruling elite of government can change it at will. If the Constitution is a rule book, then it is a living document that can be manipulated through interpretation.  The Constitution is a contract, and therefore cannot be altered so easily. In the case of the Constitution, these changes are brought about by amendment, requiring ratification of the States, the originators of the contract through the delegates of the Constitutional Convention in 1787, and the State ratification process.

The aspects of a contract, according to those claiming the Constitution is not a contract, require:

1. Offer and acceptance, by which one party extends an offer and the other party has an opportunity to freely accept or refuse to accept,

2. Consideration, usually understood to mean that there is an exchange of value for value, but at the very least an exchange of wills in accordance with (1),

3. Legal intent, that is, the contract may not oblige parties to do anything which is illegal

4. Capacity, that is, the parties are both of mind sound enough to give valid consent and agreement

The answers are clear when it comes to the Constitution.

1. The State ratification process offered the new system of government to the States, giving them the opportunity to freely accept or refuse the agreement, which included accepting, or rejecting, forming a federal government that would also be a part of the contract, and ultimately, as created by the contract, a party to the contract.

2. The exchange of value was the legal transfer of authorities as granted by the States to the federal government. In the agreement, the States also retained many authorities.

3. The legal intent was for the States and the federal government to adhere to the authorities held by those governments. The contract not only does not oblige the parties to do anything illegal, it is written in such a manner as to ensure that illegalities against natural law are forbidden.

4. The delegates in the convention, and the State ratifying conventions, were debated soundly, and was regarded as being valid consent and agreement by the States to enter into this contract, and create a federal government which would also be a part of the contract.

Through the concept of a social contract, and the filial contract, We the People are indeed all parties of this Contract, and it is our duty that the contract is kept, and not breached by any parties to the contract, including the federal government.

-- Political Pistachio Conservative News and Commentary