Unconstitutionality and the Social Contract

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

When the federal government acts outside the expressly enumerated authorities of the United States Constitution, it is acting unconstitutionally.  By "unconstitutional," I mean "illegal."  However, there seems to be this consideration, even by conservatives, that if the federal government did something in the past, it's automatically constitutional.

In a discussion on Facebook regarding treaties, the person in opposition to my point of view, wrote:

The reason the legal profession has "Constitutional scholars" is because many areas of the Constitution are open to interpretation. Indeed, This is an text book example of how things and not black-and-white. Between 1946 and 1999, the United States completed nearly 16,000 international agreements. Only 912 of those agreements were treaties, submitted to the Senate for approval as outlined in Article II of the United States Constitution. Since the Franklin Roosevelt presidency, only 6% of international accords have been completed as Article II treaties. Most of these executive agreements consist of congressional-executive agreements. This article explains the history and current case in precise detail.

My response:
 The constitution is a contract, so it is supposed to be subject to contract law, not case law. As a
Contract under contract law the interpretation is not supposed to be fluid. Either the authority is in there, or it's not. Using the example regarding treaties where only a portion of the agreements were "treaties" is a bad example. You basically said, "they've acted unconstitutionally before, so it's ok."

The other person in the discussion is obviously not well-versed in constitutional law of any kind.  His next statement about if the Constitution is a contract reveals that.  Even your most liberal scholars will admit the Constitution is a "social contract."  In other words, the person I was dealing with has no clue what he's talking about, is basing his arguments on what the Constitution "should" be, and then is acting as if he is coming from a position of being well-informed.  Almost comical.

He wrote:

The Constitution is clearly not a contract. A contract is between consenting parties. The Constitution regulates the power of government, not the people. It is the law of government, not the people. Very different from contracts.

The response was an easy one:

The Constitution is a social contract. The consenting parties are the States. It established a federal government to serve the States at their pleasure. The States are the parents of the agreement, and the final arbiters of what is, or is not, constitutional. The federal government, the creation that emerged from that contract, now claims it can do whatever it wants without any limitations, that it can go beyond the authorities granted in the contract. While the Constitution is the law of the land, it is a contract based on Natural Law. We the People of the States that are united formed a voluntary union, and created a federal government to handle external issues, and issues that entail protecting, preserving or promoting the union. All internal issues belong to the States. Read Federalist 45 for clarification.

Here's the Federalist #45 by James Madison passage I refer to...

“. . . each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments. . . The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments in times of peace and security. . .”

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