The US Constitution is first and foremost a contract. This is something I learned from Thomas Paine many years ago.
Now that I am an experienced paralegal, having drafted and interpreted contracts over the years, I have a much deeper understanding of what it means to say the Constitution is a contract.
There are a few main elements of contracts which apply equally to the Constitution:
1. A contract is static, it is not a living document.
2. Any contract can be amended if all parties agree.
3. The terms of a contract should be clear.
4. Clauses which are unclear can be modified.
5. Clauses can also be interpreted by a court.
Here I will discuss some of those elements.
1. A contract is static, it is not a living document
There are many people who believe that the Constitution is a living document. This is not true. There is no such thing as a living document. The terms of any contract are fixed after the document has been signed. You cannot change a clause of the document without agreement from the other parties. The same holds for the Constitution.
2. Any contract can be amended, if all parties agree
Sometimes a contract needs to be altered. This is necessary because circumstances change. The process for changing a document is easy to do, but there is a process. As long as both parties agree to the changes, then the contract can be amended at any time.
Similarly, the Constitution needs to be amended from time to time due to changing circumstances. This can be done if all the parties agree to the changes. In this case, “all parties” means the citizens, and “agreeing” means that the elected legislators of each state agree to the changes on behalf of their constituents.
3. The terms of a contract should be clear and unambiguous
I pride myself in creating contracts where all terms are clear. This is not always the case in contracts I have read. The biggest problems arising from business agreements exist because each party has a different interpretation of a clause. Does “Portland” mean Portland Maine or Portland Oregon? What qualifies as “organic” food? When terms such as these are not specified, each party assumes their own meaning. If these terms are not consistent, then problems emerge and good people become aggravated.
The same is true of the Constitution. Some of the terms in the Constitution are clear, but many are not. It is clear that a President must be 35 years old. However, what is a “well-regulated militia”? What are “cruel and unusual punishments”? Terms such as these mean different things to different people. This results in confusion for everyone: citizens, legislators, agencies, and the courts.
4. Clauses which are unclear can be modified
If the clause of a contract is unclear and causes confusion, the best thing to do is rewrite the clause. All parties can be gathered for a new discussion and the terms can be clarified. Similarly, if there is a clause in the Constitution which routinely causes confusion, that clause can be changed through an Amendment.
5. Clauses which are unclear can be interpreted
In a business contract, if the clause is ambiguous it is best if all parties meet to reword the contract. However, sometimes this is not an option. If this is not an option then one party can go to court, where a judge will decide the meaning of the clause. When deciding the meaning of a clause, the judge will usually look to the most common usage of the word in that industry, or to what a reasonable person in that location would assume.
Regarding the Constitution we cannot talk to people who wrote the document or those who ratified the document. The best we can do is read their other writings. This is followed by examining history for common word usage of the day. If necessary, we must leave it to the Supreme Court to decide exactly what those terms mean as applied to a particular situation.
