Contracts, Social and Otherwise (KingShamus)

Consider the following scenario:

Let us say that I am an employer and you are a potential employee.  I offer you a job with a generous salary and good benefits.  The work I'm asking you to do is not terribly hard, but there are a few responsibilities that you will be expected to perform.

We agree that you will be hired.  I offer you a contract.  You read through it carefully, asking a question or two about a few details.  After that, you sign your name to the contract and start working for my firm.

For a while, both you and I are quite happy with the contract you've signed.  Naturally, it's not all smooth sailing--patches of financial instability, some serious growing pains as the company expanded, even an inter cubicle turf war at one point--but for the most part the unpleasantness is kept to a minimum. 

As time goes on an interesting thing starts to happen in our employer/employee relationship vis-a-vis the original contract. Almost from the beginning, I do things that fall outside of the letter and spirit of the accord.  I'd neglect to replenish the office supplies closet every so often or ask you to work through lunch for a few days.  As the weeks and months pass, I take more liberties with the terms of our agreement.  Not enough to make you quit, but enough for you to take notice and be annoyed by them.  

What I'm doing isn't really malicious.  We both look at it as part of doing business.  The contract had some wiggle room here and there.  Certainly, looking back from the present day it seems like some of the contract's language is pretty ambiguous.  At least, that's what we both say to justify my...extracurricular...activities.  By and large, my little contractual breaches are not so deleterious that they threaten to shatter our agreement.  You think back to the days when you worked for another employer and see that for the most part, you're in pretty good shape.  I still pay you a substantial sum, you still perform your duties and we keep moving forward.

The years roll by.  After a time, we reach a particularly nasty patch.  The company has to fight off stiff competition from some cutthroat outside firms.  At the same time, economic instability within the business is threatening to bankrupt the enterprise.  It's touch and go for quite a while.

Now, there are several courses of action I could take, but what I decide to do is cut your salary and benefits while asking you to do much more work for me.  Of course, these are blatant violations of the terms enumerated in the original contract.  I justify this by arguing that, after all this time, the contract's language is so outmoded to today's incredibly difficult business environment that it would be absurd to hold to every jot and tittle of the agreement we made.  

Instead of being bound up with the arcane wording of the contract, I assert that the accord is a living breathing document.  Modern times dictate that we can use a less stringent, more liberal interpretation of the contract to better deal with the desperate circumstances the company faces.  I also tell you that this new look at the agreement will not only save the firm, it will also create new benefits and payment packages that will make the old compensation pale in comparison.  I submit that this cutting edge reading of our contract will make you a happier, healthier and more creative worker while allowing you to work less and have more free time in the process.  We just have to get through this really awful time and then you'll see how the longer hours and less salary will all pay off.

The scenario is over. 

Consider:  If your boss really acted the way the employer in the scenario did, you'd probably quit right on the spot.  Certainly you'd at least consider hiring a labor attorney or calling a union representative to deal with this matter.  In any case, your time working for that company would very likely come to an end in short order.

Why?  Because the nature of your relationship with the employer was based around the original terms of the contract.  When the boss decided to unilaterally cut your compensation and increasing your work hours without amending the agreement, he severed a promise he made to you, thus destroying the relationship you once had with the company.  Regardless, you wouldn't stand it if the firm you worked for broke your contract in such an egregious manner.  You'd probably laugh in your boss' face if he played the 'living breathing document' line of nonsense.

Now, if you wouldn't stand for it if your employer did this to you, why do you stand for it when our government does the same thing?  Think about it:  The Constitution is in many ways a contract that the American people signed with our government.  Far from just being a mere "charter of negative liberties" as described by the hapless intellectual midget Barack Obama, the Constitution creates the various branches of government and delegates large but divided authorities to each.  It also defines the roles that state governments play in a federal framework.  On top of that, it enumerates what the government cannot do to individual citizens.

It's easy to see that the Constitution doesn't 'pay' us in the same way that an employer does.  The US Government doesn't just hand us money (except when it does, but that's a different tale for a different time).  However, the contract the Founders granted to us compensates us in a far more enduring manner.  The Constitution pays the citizen by creating the conditions for individual achievement and personal freedom within a framework based around the rule of law, property rights and a divided federated government.  All the Framers' Constitution asks of us in return is loyalty to those principles so that it can be upheld for future Americans.

Looking at the current government in that light, is it not obvious just how much our leaders--those entrusted with preserving and protecting the Constitution--have broken the contract our ancestors made with us?

Comments

[Professor Hale]

Nice analogy.

But the Constitution is not a contract at all. It is a charter drawn up by the People for their opwn exclusive benefit. It limits the powers of the government and requires nothing of the People in exchange. The government and the People are not equals that can negotiate terms for an agreement. The government exists as it is permitted by the People and the People are free to abolish this or any government and to create a new one in its place.

As good as the Constitution is, it would be morally hazardous to enshrine it. Every provision of it exists at the sufferance of the People. But when the People choose to change its provisions, such changes should be done openly and with full deliberation, not by the subtrefuge of changing the meanings of words. It is a charade to preserve power of the Constitution as inviolable while changing the meanings of common words to suit the fashion of the day.

[baldilocks]

Charter (definition 2a)

a grant or guarantee of rights, franchises, or privileges from the sovereign power of a state or country

The US Constitution does not grant or guarantee rights or privileges to the People; it outlines the responsibilities of government only.

What is its relationship to rights of citizens? Nothing; it merely acknowledges that government is not to interfere between the People and the rights granted and guaranteed to them by God. This is acknowledged in the Declaration of Independence and it is the reason that the Bill of Rights was included in the draft and ratification of the US Constitution.

[KingShamus]

Professor Hale & Baldi: I think ya'all nailed it. I guess I stretched my metaphor out a little too far.

Constitution = Charter. I'm pretty sure I knew this, but in my desire to make a point, I think I brain cramped.

And that's why we blog in public, so friends can set us right when we're mistaken.

[Regalo Di Spine]

I definitely like the analogy but agree with Prof Hale on the point that it is not necessarily applicable to the U.S. Constitution. But it is wrong to refer to it is a charter. It is, as plainly stated on its face, a constitution. It is the documentary formation of the structure of our government. As such it is meant to be inviolate except under provisions built within the document for its alteration. Parts of the analogy do work as they illustrates a problem with allowing informal changes to a given structured arrangement.

Prof Hale is correct that in terms of the Constitution, changes should only be in an informed and public manner. However, they must also only be made under a formal ratification process, not through a popular consensus that the words of the document mean certain things, or through an activist judiciary, or by agreement among a majority of our representatives that the Constitution allows for the enactment of laws that grant the government powers not enumerated in the document.

Just some thoughts from a lurker.

[KingShamus]

Regalo: First off, thanks for commenting. You don't have to be a lurker. Second, I think one of the biggest tragedies in the last century has been the warping of constitutional principles by an overactive progressive judiciary. I would be just as horrified if we started messing with the Constitution through plain old popular votes.

The formal ratification is the only acceptable way to amend the document.

[Casey]

As good as the Constitution is, it would be morally hazardous to enshrine it. Every provision of it exists at the sufferance of the People.

Um, no. But then, I may be a bit pedantic here.

I object to the suggestion that the Constitution is subject to the vagaries of popular opinion, and I'm darned sure the Founding Fathers would agree. The Constitution was designed to be conservative (as opposed to Conservative {g}) in nature, and difficult to change. Even then during the late 19th and early 20th centuries, a fair number of ill-advised amendments were passed. One (Prohibition) at least was later repealed. This spurt of energetic reform seemed to mosly burn out by mid-century, with later amendments limited mostly to necessary tweaks.

Checking my memory online, I discovered the 25th Amendment. How odd! Never heard of it before. :) Good idea, though.

It is, however, not a "charade" to read the Constitution by way of the existing text. This does not enshrine the document, but (as you say) ensures that changes are made openly and with full deliberation via amdendment, as opposed to interpreted "penumbras" and such.

[foxmarks]

It is a contract.

1 a: a binding agreement between two or more persons or parties; especially : one legally enforceable.

The contract is between the people of the United States. To call it anything else requires fudging and backbending on the meanings of words.

The contract establishes a structure of government, expectations and limits of that government, and expectations of the people upon each other, with an enforcement mechanism built-in.

One may well argue that the contract has become void or has no authority because no living person freely consented to be bound by it. But that is an argument different from the essential fact that it is contract, as fixed and dead as every other contract.

There is nothing to “enshrine”. It is merely the rules. If the rules are not fixed and firm, the game is played by whim. And we thus are a nation of men, not laws.