Calder v. Bull, interpreting the Constitution as a social compact; or a sequel to Jean Jacques Burlamaqui and the theory of social contract (II)
| Autor | Raúl Pérez Johnston |
| Cargo | Profesor titular de las cátedras de Amparo y Derechos Humanos de la Universidad Anáhuac (México) |
Raúl Pérez Johnston: Profesor titular de las cátedras de Amparo y Derechos Humanos de la Universidad Anáhuac (México). Profesor adjunto de la cátedra de Derecho Constitucional Mexicano de la Universidad Anáhuac. Profesor y conferenciante invitado respecto de temas de Derecho Constitucional, Amparo y de Historia del Derecho Constitucional en la Universidad de la Sabana, en la Universidad Anáhuac, en el Instituto de Estudios Superiores de Tamaulipas y en la Barra Mexicana Colegio de Abogados.
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Once we have established that the interpretation of the constitution in accordance to the first great principles of the social compact is to make every government action to comply with the principles of equality, the preservation of life, liberty and the pursuit of happiness, it would be interesting first to put Calder into dimension with regard to certain previous classifications of this dictum, since Calder v. Bull has been classified like being the basis for substantive due process in the Fourteenth Amendment, as well as like being the basis for claims of an unwritten constitution and unenumerated rights. Once this is done, we can then proceed to determine certain consequences of this method of interpretation, namely with regard to the principle of the pursuit of happiness.
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Calder v. Bull's dictum concerning the great principles of the social compact has been seen too often as an analogous precedent to the substantive due process theory embodied in the Fourteenth Amendment and developed by the Supreme Court, especially in the first third of the twentieth century, with different implications and variations ever since.
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On this regard, Chase has been accused to have taken his idea too far, to the extent of permitting Dred Scott and Lochner. This view has been held among others by prof. Foley, with whom we disagree on the assertion that: "The problem with Chase is that he took his idea too far. Chase believed that a constitution could not count as legitimate unless it guaranteed certain substantive rights, including rights to private property. This was Chase's error."1
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The error committed by Chase, despite the result of the opinion, is in our view a matter of formulation; had he defined clearly what he meant by social compact in terms of the ends of the American government circumscribed by the Declaration of Independence, then even Iredell's argument would not have neutralized the dictum. Neither do we believe that Chase's idealism was unadulterated,2 since the parameters set by Chase, unlike Lochner, are not unconstrained. Therefore, Foley's assertion that "the idealism of Chase gave us Dred Scott as well as Lochner"3 has to be rejected. On this point, despite Chase's incomplete exposition of the principle, if we run the test of the first great principles of the social compact on Dred Scott and Lochner, those opinions would never have been found as compatible to the ends of government under which we should interpret the Constitution, for violating the principle of equality as understood in the state of nature, and the pursuit of happiness as a limitation of the right of contract by protecting the health of the workers in a bakery through the police powers of the states.4
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Let us thus say that we reject the possibility of looking at Calder as a foundation of the substantive due process theory as used in Lochner, as well as the implication that Chase's view that "a law that destroys or impairs the lawful private contracts of citizens [or] that takes property from A and gives it to B" is prohibited by natural law in the same terms as argued in Lochner with regard to the freedom of contract.5 This is so, since even this cited statement by Chase would not have been absolute with respect to contracts, as we have just mentioned, since it has to be interpreted within the context of the rest of the opinion, namely, with the dictum that subjects even this assertion to the great principles of the social contract, which, as we have already seen, are contained in an alternative source of positive law: the Declaration of Independence.6
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On top of this, the right to the pursuit of happiness, has been nevertheless misunderstood in our perspective by some opinions of the Supreme Court in the late nineteenth century, where it has been seen as an absolute individual right protected under the due process clause of the Fourteenth Amendment, rather than as a collective right everyone has. This narrow view of such right transforms completely the nature of the disposition, and instead of being a principle of teleological interpretation as we argue it is, it becomes a mere individual liberty. Should we be prepared to accept this position, we would have to be prepared to accept that the Declaration would then create substantive rights, not only a principle of interpretation.7
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Therefore, we can only agree to reject the view of seeing Calder as a foundation for substantive due process, since if we were to use due process and the principles of the social compact to conceive an "unwritten constitution", we would be creating a situation where the content and interpretation of the constitution would be left to the discretion of the courts, breaking thus the equilibrium set by the separation of powers conceived in the Constitution. On the other hand, by using the great principles of the social contract set in the Declaration, we would have a standard and a point of reference that makes it easier to identify the substance of the principles that would be shaping the interpretation of the written constitution. Consequently, since Chase's opinion seeks to give in our view a secure standard of interpretation, rather than to create an omnimodous power for the courts, we cannot understand Calder v. Bull as an intended foundation for substantive due process in the fourteenth amendment doctrine.
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Another question that has to be dealt with is that Chase's dictum is sometimes used as a source for claims of natural law theory and unenumerated rights into the Constitution. Although we say that this dictum may be compatible with those positions, it does not generate them.
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Despite Raoul Berger's attacks on Calder, in which he considers Chase's opinion as characteristic of the Court's "appetite for extra constitutional power",8 we don't think Calder is an exclusive reference to natural law,9 nor a license for the Court to do whatever it wants. The opinion that Chase's view is contrary to the intent of the framers in setting written limits to all grant of power10 is incorrect, since the power granted to the Court with respect to interpreting the Constitution is, by all means, according to the opinion of Justice Chase, bound by the first great principles of the social compact found in the nation's founding document, i.e. the Declaration of Independence. Consequently, the power of interpretation by the Court is far from being limitless, since in the text of the Declaration there would be a formidable check.
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On this regard, we have to say that this does not authorize by itself an unwritten constitution. The only exception we could see to this principle would be that this so called "unwritten constitution" could be drawn and interpreted from another provision of the Constitution which would authorize it expressly; it is not the case in our opinion since we can trace no such provision in the American Constitution.
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This same assertion is valid as far as speaking of unenumerated rights under the Constitution.11 If such unenumerated rights can be traced through the Ninth Amendment, or through implicit rights on other explicit ones, call them inherent, penumbra12 or whatever denomination one wishes to grant them, they would surely have to be compatible with the first principles of the social contract (as understood within our view of Calder). But even in this case, we believe that in Chase's opinion there was no intention that the substantive matter of the great principles of the social contract, established in the Declaration of Independence, creates any or even additional unenumerated rights.13
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Having said the above, we do not see Calder v. Bull as a source and reference to natural law stands, nor to refer to unenumerated rights in the Constitution, but rather, to identify in a certain document (the Declaration of Independence) a standard to understand the extent and content of the rights established in the written constitution.
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