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Is the Constitution a Contract?

Professor Randy Barnett argues that the Constitution is not a contract but there are important similarities. Officials who swear an oath to defend the Constitution are bound to it contractually. Also, contracts are interpreted according to their written words (as opposed to intentions) and according to the meaning they had at the time of agreement. The Originalist theory of Constitutional interpretation also utilizes these principles. https://youtube.com/watch?v=6-lmr6I2GAs


So the natural question arises: What's the relationship between a contract and a Constitution? Some people think of Constitution as a form of contract, but I don't. And the reason I don't is because I think cost contracts require consent. And by consent, it is the consent of each of the parties to the contract that's required. Not the consent of a majority of people. Two people can't consent to bind a third person to a contract by outvoting them. So there is a fundamental difference between a Constitution that's in writing and a contract that's in writing. And in the contract, each party, every party to the contract has agreed to it, to be consented to be bound by it. With a Constitution, we the people have not been asked for our consent and we haven't been giving it. But there is a group of people who have individually consented each and every one of them to be bound by the Constitution. And those are the people who receive power under the Constitution in return for which they must execute an oath. They must give a solemn oath to be bound by the Constitution to preserve, protect, and defend, and to be bound by the Constitution of the United States. Each and every one of those persons has consented to be bound by the law that is given in the Constitution. Every bit as much, and maybe even more so than we consent to private contracts. In that sense, the Constitution is very similar to a contract, at least with respect to those who take an oath to uphold it. The other big similarity between Constitutional law and contract law has to do with the objective theory of contract. What's the objective theory of contract? The objective theory contract says, you understand the meaning of the contract, not based on what individuals subjectively may have thought that the contract meant, but what was the meaning that a reasonable person, a competent speaker of English would have thought the language met and that's exactly how a written Constitution should be interpreted. And then there's one thing more: the meaning of a written contract is the meaning that it had at the time of formation. Every contract law student is going to learn that. The meaning that a contract has is the meaning it had when it was formed. And that's what we call in Constitutional law, Originalism. Originalism says that the meaning of the Constitution is the public meaning that it had at the time it was enacted. And so contract law and originalism have very, very important commonalities. One, the time of formation is the time point at which you interpret the writing. And two, you look at its reasonable meaning. The meaning that a competent speaker of the language would attach to the words and symbols that are expressed in that writing. And so in that sense, Constitutional law resembles contract law.

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