Over at Balkinization, there is some discussion of the Constitution-as-contract metaphor. Brian Tamanaha thinks it is a useless metaphor. Some of the dynamics of the conversation are pretty interesting to me: Living Constitutionalists are said to deny the metaphor and hold it to be wholly inappropriate; only originalists are said to care about the metaphor because it helps confer legitimacy on the document. As I argue, however, in The Perpetual Anxiety of Living Constitutionalism, it is the Living Constitutionalists who should embrace the Constitution-as-contract metaphor. In particular, they should embrace the Constitution as a contract of adhesion — with the special rules for contractual interpretation that form contracts of a take-it-or-leave-it variety can trigger.
Full disclosure: Because I teach both contracts and Con Law, I am perhaps more fond of the metaphor than is justifiable.
Posted by Ethan Leib on December 31, 2006 at 12:44 PM
Comments
Thanks, Patrick, for the Hardin reference. Here is my take: https://priorprobability.com/2018/03/06/critique-of-hardins-theory-of-constitutions/
Russell Hardin (1999, pp. 88-89) gives three reasons why a constitution is NOT like a contract. First, according to Hardin, a constitution is designed to create a government for a large group of people; a contract, by contrast, is designed to solve a prisoner’s dilemma between two parties. Second, a constitution does not require an explicit agreement among the people to be effective once it is adopted, while an essential element of contracts is mutual agreement between the parties to the contract. Third and last, constitutions are self-enforcing; contracts are enforced by courts. Alas, Hardin is wrong. Let’s examine each one of these arguments in reverse order:
* Constitutions are self-enforcing; contracts are enforced by external sanctions (the courts). What does it mean to say that constitutions are “self-enforcing”? The U.S. Constitution, for example, allocates to the political branches the power to enforce various provisions of the constitution, or as Hamilton wrote in The Federalist, the Congress has the power of the purse, while the President has power of the sword. Frankly, whether these enforcement powers are internal or external is just a play on words. In addition, many contracts are just as self-enforcing as constitutions are, especially long-term agreements or so-called “relational contracts” in which the parties care about their reputations and have more to lose by breaking their promises than keeping them.
* Constitutions don’t require explicit agreement; contracts do. At first glance, there is something to this argument. After all, “mutual agreement” is one of the essential elements of contract formation, yet none of us were around when the U.S. Constitution was drafted and ratified in the late 1780s. Nevertheless, consider the “battle of the forms” in business-to-business commercial transactions or Internet-era contracts such as “Shrink Wrap Agreements” and “Terms of Use” for most Apps. Commercial transactions and Internet contracts are generally enforceable, thus showing that consent is not really required to enforce a contract!
* Constitutions are designed for large groups of people; contracts are designed to solve a prisoner’s dilemma between two parties. No, this claim is not right, for both contracts and constitutions are designed to solve prisoner’s dilemmas. In the case of a constitution, the prisoner’s dilemma involves a larger group of people, to be sure, but the underlying strategic problem in creating a government (via a constitution) is whether to cooperate (obey the laws of the new government) or defect (every man or clan for himself). In a previous paper (Guerra-Pujol, 2008), for example, we used the “stag hunt” model to describe the strategic nature of the process of constitutional ratification. Without getting into all the technical details (this is a blog post, after all), a stag hunt is a special kind of group prisoner’s dilemma: without a constitution, it is in most factions’ individual interest to defect and go it alone; with a constitution, it is in most factions’ interest to play by the rules (or game the rules) and cooperate.
Is our disagreement with Hardin just another trivial academic squabble? I, for one, actually agree with Hardin’s larger point about the strategic nature of constitutions. My main point here is that commercial transactions and most contracts also share many of the same strategic elements that constitutions do. But again, why does any of this matter? If constitutions are often like contracts (or vice versa, if contracts are often like constitutions), this observation should inform the role of the courts in enforcing these two types of agreements. In a word, judges should be more humble …
Posted by: Enrique Guerra-Pujol | Mar 6, 2018 11:19:21 AM
I think it makes sense to think of the Constitution as shrink-wrapping the government, so that, per Article VI, anyone who wants to exercise power as an official must swear an oath to support it–i.e., accept its offer and make a contract. I think the arguments that we are bound by the Constitution are far stronger if we have sworn an oath to support it than if we are mere citizens. If we don’t like the Constitution, we don’t have to go into public service–that’s a relatively doable “leave it” option. Here’s Easterbrook: “Our constitutional order does not depend on hypothetical contracts. There are actual contracts. Like other judges, I took an oath to support and enforce both the laws and the Constitution. That is to say, I made a promise–a contract.”
Posted by: Chris | Jan 3, 2007 12:12:21 AM
Ethan, I’ve thought about this metaphor and am intrigued by it, although also troubled by some of its rough contours. If we say the constitution is a contract of adhesion, is that then a criticism of the constitution? After all, contracts of adhesion have (generally, with a few notable exceptions) come in for fairly serious critique in the literature. Further, I’m not sure that anyone has the ability to (really) take it or leave it, except perhaps by leaving the country… (although, to be fair, this is also the case in many monopoly-necessity situations in contracts as well). I’d be interested to hear your thoughts.
Posted by: Miriam Cherry | Jan 2, 2007 3:22:05 PM
In speaking of a ‘social contract’ in constitutional terms (and figuratively!), we might ask precisely who are the bargaining parties before we address the question of troublesome disparity in bargaining power (which, in any case, suggests only that we closely scrutinize the contract’s terms, not that it is prima facie unfair: Recall that to describe a contract as ‘adhesive’ “is the beginning and not the end of the analysis insofar as enforceability of its terms is concerned,” i.e., one looks at the ‘reasonable expectations of the parties,’ or, a principle of equity, namely, whether the contract in toto or its provision(s) are unduly oppressive or unconscionable). It seems the bargaining parties at the Federal Convention in Philadelphia were elites of one kind or another (as to the actual bargaining that took place, see Hardin above and a paper by Jon Elster, ‘Arguing and Bargaining in the Federal Convention and the Assemblée Constituante,’ available here: http://www.geocities.com/hmelberg/elster/AR91AAB.HTM).
Posted by: Patrick S. O’Donnell | Jan 1, 2007 3:05:38 PM
The much more troublesome contract would be the Social Contract. Surely it should be declared unenforceable, on grounds of disparate bargaining power.
Posted by: Adam | Jan 1, 2007 1:05:33 PM
Hardin says that some sort of order, constitutional (written or informal) or otherwise, is prior to contracting, so it would not surprise him there are countries without formal constitutions but with contracting. I did not claim that Hardin thought the Constitution a *simple* contract, but the conceptual implications of the metaphor must have some ties to the meaning of a contract (in the manner, for instance, suggested by Lakoff and Johnson’s collaborative work on metaphor), and Hardin’s argument would seem to suggest that the metaphor is not very illuminating . Of course I believe one can nonetheless, and thus in disagreement with Hardin, speak sensibly about such a methaphor, one reason I mentioned Gerald Gaus’ work.
Posted by: Patrick S. O’Donnell | Dec 31, 2006 6:20:05 PM
Almost everyone agrees that the Constitution is not a simple contract. The question is only whether the metaphor is illuminating in any way. Although I think it can be, reasonable people differ on that question. Hardin’s arguments that you summarize here are, perhaps, useful ways to specify why one can’t make a simple translation (though there are countries without formal constitutions and with contracting — so I’m a bit skeptical that constitutions create the institution of contracting). But that hardly makes the case that one can’t speak sensibly about the metaphor.
Posted by: Ethan Leib | Dec 31, 2006 6:01:53 PM
Russell Hardin would agree with Tamanaha or, rather, Tamanaha agrees with Hardin, the latter having deftly discussed this topic in his Liberalism, Constitutionalism, and Democracy (1999). Below I recapitulate and quote from *some* of Hardin’s argument, confining myself to Chapter 3, ‘Constitutionalism: Contract or Coordination?’ I would recommend Hardin’s book to anyone interested in the plausibility or persuasiveness of the ‘Constitution-as-contract’ metaphor. On the other hand, perhaps the most sophisticated if not the strongest argument for Liberal constitutionalism in reliance on the ‘social contract’ idea is found in the work of Gerald F. Gaus (e.g., Value and Justification: The Foundations of Liberal Theory (1990) and Justificatory Liberalism: An Essay on Epistemology and Political Theory (1996)).
Our Constitution should be viewed as a coordinating mechanism that differs from the ‘Constitution-as-contract’ metaphor in fundamental ways: ‘We generally coordinate on creating institutions for constraining certain classes of behaviour and then the institutions implement the constraints. [Stephen Holmes, on the other hand, speaks to the ‘enabling’ capacities of the Constitution.] In an extreme statement of this dual structure of choice, James Madison argued that an advantage of the particular form of representative government proposed for the United States in its new constitution was “*the total exclusion of the people in their collective capacity* from any share” in the government. That is to say, popular sovereignty stopped at the adoption of the constitution.’
Constitutional arrangements are not at all the product of agreement in the sense in which contracts are, hypothetical or not. A constitution is prior to a contract insofar as it creates the institution of contracting, an institution that seems to depend upon a constitutional or other order for its existence: ‘We all coordinate in having a practice of promising and a law of contract that make life better for us.’ Unlike a contract, a constitution does not resolve a particular exchange or prisoners’ dilemma problem. Instead, a constitution ‘regulates a long-term pattern of interactions. It establishes conventions in the sociological or strategic sense that makes it easier for us to cooperate and to coordinate in particular moments. Creating a constitution is itself primarily an act of coordination on one of many possible ways of ordering our lives together, not an act of cooperating in an exchange or prisoner’s dilemma. In the general case over the long term, roughly speaking, we must have one regime: for example, general enforcement of contracts or no enforcement, general protection of property or no protection. [….] One can renege on any given contract and plausible still keep open the opportunity for mutually beneficial contractual relations with other potential partners. But one cannot will away the whole institution of enforcing contracts and then still expect mutually beneficial contractual exchanges with anyone to work.’ It is the constitutional order that allows us to prosper through our own efforts and through contractual exchange.
‘There are at least three manor ways in which a constitution fundamentally differs from a contract. [….] First, the strategic structures of the modal interactions governed by contracts and constitutions are different. A contract typically resolves an immediate prisoner’s dilemma interaction (usually, an exchange between two parties); a constitution typically resolves an immediate coordination interaction (the creation of a particular set and form of government institutions). Secondly, a constitution has a far less significant element of agreement behind it than does a contract. This problem has given rise to a remarkably obtuse and unenlightening literature on tacit consent, hypothetical consent, implied consent, and so forth. In practice, acquiescence is more important than agreement for the working of a constitution, while agreement is crucial for obligations under a contract to make sense. Thirdly, and finally, the sources of support for a contract and a constitution differ radically. A contract is generally backed by external sanctions; a constitution is more nearly backed by default, by the difficulty of re-coordinating on an alternative arrangement. A constitution, if it is to work in bringing about and maintaining social order, must be self-enforcing. [….] If a constitution is to be stable, it must be self-enforcing, it must be a coordination, because the nation cannot go to a supranational agency to enforce its citizens’ contractual agreement with each other and their government.’
Again, this is but a taste of Hardin’s argument.
Posted by: Patrick S. O’Donnell | Dec 31, 2006 5:24:36 PM
Judge Easterbrook has some valuable thoughts on the Constitution as a contract in his reply to Jed Rubenfeld, Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119, 1121-22 (1998). “Both private and social contracts are hard to change, but only someone distracted by babble about ‘contracts of adhesion’ would think this an objection rather than a benefit.” Id. at 1121. You mention one of Easterbrook’s CA7 contracts opinions at n.43, but might also throw in a reference to his views on constitutional interpretation there too.
Posted by: Chris | Dec 31, 2006 3:13:02 PM