Dampening the Illegitimacy of the United States' Government: Reframing the Constitution from Contract to Promise
affiliation not provided to SSRN
Idaho Law Review, 2005
Realistic political philosophers working in the United States face a serious problem. The public accepts as axiomatic the fundamental status of the 1789 Constitution. That Constitution, however, even as amended, is blatantly illegitimate, thus undermining any theoretical claim that citizens should respect (as opposed to obey) the existing national government. This paper tenders a method for shoring up the legitimacy of the federal government through the Constitution-as-promise. Realism is central to this project; I am discussing the words of the ratified document with its twenty-seven Article V-created amendments. I am not taking the common path of deflecting problems by building a more just theoretical construct out of philosophy, the subset of practice I approve, or hope in the future moral behavior of my fellow Americans.
I claim that we can dampen the illegitimacy of the federal government by creating a theoretically sound practice to ground the government on the existing popular faith in the Constitution. Specifically, the government should approach the written Constitution as a promise which is made to each reader at each reading, and then strongly regulate itself within the constitutional limits and priorities set by the document so read. The promise binds the government, because the government claims to be the embodiment of the Constitution. Citizens are not bound by the Constitution itself or by the Constitution's history; the United States works because citizens voluntarily choose to support the Constitution. This voluntary support is the realistic underpinning of the promise approach.
This approach substitutes the metaphor of promise for the standard contract metaphor. Promise has three major advantages over contract. Promise provides an account which is realistic, one which meshes with both historical and current events. Promise provides an account which is more inclusive, one which honors more of the past and present population. Promise clarifies that the sovereign people retain sovereignty; individuals are not bound by the Constitution; they choose to give support to the Constitution and the constitutional government. Both promise and contract mesh with the importance of the Constitution's writtenness. Contract, however, has problems dealing with the temporal extension of the Constitution, former political exclusion of currently enfranchised groups, and the post-1789 experience of being born into a constitutional state. Additionally, the contract metaphor chains construction of the document to its meaning at the time the contract was originally formed. Proponents of an evolving constitution have long sought a responsive metaphor, one which authorizes a temporal shift in the authentic readership of the Constitution. Promise fulfills this need while providing a more legitimate grounding for constitutional government.
Even for those wedded to historicism, promise is a better frame than contract. Promissory originalism asks what promises would have been heard in the constitutional language by all members of the ratification-era population. Promissory originalism renders the constitutional government slightly more legitimate than contract originalism by providing a method of somewhat empowering groups disenfranchised in 1789, even though it does not provide the robust legitimacy of the promise frame in evolving-Constitution mode.
The final section of the article is primarily a suggested research agenda. In the hope that others will assist in constructing workable doctrines, it provides a tentative explication of how to apply the evolving promise frame to different types of constitutional language. One point is not tentative, discussing constitutional language en mass is unlikely to be fruitful. People may be created equal, but words are not; they should be divided into categories for consideration.
This essay is only one step in an ongoing, major project. The next segment, The Constitution as Promise: Textualism, Originalism, and Evidentiary Bias, will explain and illustrate how to include the non-elite while empirically investigating 1789 word meaning.
Number of Pages in PDF File: 86
Keywords: united states constitution, originalism, textualism, legitimacy, social contract theoryAccepted Paper Series
Date posted: May 20, 2005
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