The Constitution is a contract of sorts. The 1,648 delegates who voted in the thirteen constitutional conventions represented about two-tenths of one percent of the free white males aged 16 and older at the time (and presumably far less than one-half of one percent of the free-white males considered eligible for a convention).
The ratifying conventions were held in the States because it was left to each State whether to join the new union or remain independent. The conventions were conducted under the auspices of the State legislatures. They were, in effect, special committees with but one duty: to decide for each State whether that State would join the union.
This view is supported by Madison’s contemporaneous account of the ratification process:
[I]t appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act. [The Federalist No. 39, as published in the Independent Journal, January 16, 1788]
The ratification of the Constitution was not the “will of the people” of the entire nation. It was the will of a tiny fraction of the people of each State that ratified it, and which might well have chosen to reject it.
The Constitution is positive law, that is, law constructed by formal institutions (e.g., Congress, the Supreme Court), as opposed to natural law, which arises from human coexistence — the Golden Rule, for example. Natural law has moral standing because it appeals to and flows from human nature. Positive law may, by chance, be derived from natural law (e.g., murder is a crime), but it is a contrivance that can just as easily contravene natural law (e.g., the murder of an unborn human being is not a crime).
The myriad statutes, ordinances, regulations, executive orders, and judicial judgments that proscribe the behavior of Americans are positive law. Most of this body of positive law is designed to benefit or satisfy special interests or political ideologies. It has little to do with how human beings would behave were they free to do so, and were mindful of how their behavior would affect others and the behavior of others toward themselves. A great deal of this positive law exists because it has been imposed in the name of the Constitution or some “emanation” from it.
But the Constitution had no moral claim on most of the Americans living at the time of its adoption. And it has no moral claim on any American now living.
On this point, I turn to I turned to Lysander Spooner, anarchist extraordinaire. He begins No Treason (1867) with this:
The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. And the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but “the people” then existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. Let us see. Its language is:
We, the people of the United States (that is, the people then existing in the United States), in order to form a more perfect union, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
It is plain, in the first place, that this language, as an agreement, purports to be only what it at most really was, viz., a contract between the people then existing; and, of necessity, binding, as a contract, only upon those then existing. In the second place, the language neither expresses nor implies that they had any right or power, to bind their “posterity” to live under it. It does not say that their “posterity” will, shall, or must live under it. It only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquillity, liberty, etc.
In sum, the Constitution is neither a compact between States (as sovereign entities) nor a law adopted by “the people”. It is a contract that was drawn up by a small fraction of the populace of twelve States, and put into effect by a small fraction of the populace of nine States. Its purpose, in good part, was to promote the interests of many of the Framers, who cloaked those interests in the glowing rhetoric of the Preamble (“We the People”, etc.). The other four of the original thirteen States could have remained beyond the reach of the Constitution, and would have done so but for the ratifying acts of small fractions of their populations.
In other words, the Constitution was a contract among a relatively small number of long-dead persons. And that’s exactly how the left treats it, intentionally or not.
Conservatives, on the other hand, cling to the original document because it affords ample room for the social and economic arrangements to be arrived at with little or no interference by the central government. The political differences between States would be even more marked than they are now, and some of them would be bastions of liberty.
What that would mean for the citizens of many States — in addition to lower taxes and less regulation — is respect for property rights, freedom of contract, freedom of association, and several other things; for example:
Public schools, to the extent that they still existed, would focus on education (“reading, writing, and arithmetic”) instead of indoctrination in globalism, “climate change”, CRT, etc.
Public universities, to the extent that they still existed, would be similarly focused on utilitarian subjects (in addition to “liberal arts” in the old-fashioned sense), and professors would be predominantly conservative or neutral because trendy “studies” programs and anti-scientific agendas (e.g., “climate change”) wouldn’t be tolerated.
Both kinds of institutions would be short on administrators and long on teachers.
Religion wouldn’t be scorned by public officials, teachers, and professors.
Punishments for crime would be delivered swiftly and certainly, and there would be capital punishment.
I am all for using the Constitution as a rallying point for those conservatives —Ron DeSantis, for example — who seek to restore the kind of federalism that the original Constitution promised. The result would be a more dramatic contrast between the worst of the worst (e.g., California) and the best of the best (e.g., Florida).
But none of that is possible unless the GOP (led by someone like DeSantis) retakes the White House and Congress. Time is running out.