Calder v. Bull, interpreting the Constitution as a social compact; or a sequel to Jean Jacques Burlamaqui and the theory of social contract (I)
| Autor | Raúl Pérez Johnston |
| Cargo | Profesor titular de las cátedras de Amparo y Derechos Humanos de la Universidad Anáhuac (México) |
| Páginas | 178-225 |
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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.
Page 178
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After more than two hundred years from the founding, the American Constitution is still being hard to decipher. Depending on who is sitting on the bench,1 its provisions are given a different meaning in accordance to the beliefs of the voting majority. Debate has raged over the years in every branch of government, as well as amongst public opinion and scholars, on whether it is healthy to live a government by the judges, or even as to what appropriate method of interpretation should be used as a methodology to decide cases and controversies.
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On this regard, we have seen different possibilities, from plain meaning or textual interpretations all the way to original intent, with several middle grounds on the way. Still, there is no consensus as to how the Constitution ought to be construed. Nevertheless, it is a matter of the utmost importance, especially in a time where Judges to the Supreme Court are not only appointed with respect to their political affiliation or partisanship, but rather on how they think and interpret the constitution, to try to find a method that stands, as closely as possible with the true spirit of the Constitution in order to avoid politically or ideologically motivated decisions.2
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Picking up on this trail, we consider then that while the Constitution is being shattered by different views and methods of construction, there has to be at least one that is true to the intention and the ends for which it was created. This is, to constitute a nation and to provide it with a government that is going to work for this and the future generations in allowing them to achieve their goals. To do this, one has to reason quam tabula rasa and set aside the traditional methodology to be able to rethink these issues without any constrains.
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A possibility in rediscovering the path to the true intent of the Constitution might be to see it as an aspirational document that should be interpreted according to its finality or ends. On this behalf, comes to our mind a dictum written by Justice Chase in the eighteenth century, fairly forgotten by most Page 179 scholars, that suggested to interpret the constitution according to the first great principles of the social compact. A dictum that, on its face, may seem to fulfill such a conception, especially if we were to consider those "great principles" as that nucleus that defines the Constitution and the reasons for which it stands for.
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That dictum was part of Justice Chase's seriatim opinion in Calder v. Bull,3 a case that is scarcely given much attention by the prevailing constitutional doctrine in the United States but that may offer the answer we are looking for.
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Despite this case having fallen relatively into oblivion, we think it of the greatest importance to determine what Justice Chase meant by this dictum to see whether in it we could find a possible solution on how to interpret the Constitution without the so many fluctuations offered by the traditional methods of interpretation in use today.
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In order to do that, first of all, we will concentrate on Justice Chase's statement and view of what social contract and principles it would be talking about. This said, we will try to understand where these principles of the social contract can come from, for which goal we will first look into the meaning of the Declaration of Independence, as a possibility of a document providing these goals of government for a nation with the "pursuit of happiness" as one of its main goals to be achieved by every citizen; we will then also see if the concept of a social compact can therefore be construed as a series of foundational documents, this is, by having celebrated multiple compacts, established not only to organize society, but also to grant it with a certain direction, as aspirational documents tending to permit every citizen part of that association the pursuit of their own happiness as one of its inalienable rights.
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In other words, we will have to assume the premise that government was thought only for the good of the whole social body, above individual interests that may be against them, but compatible with a respect of its natural and inalienable rights. In this we might also assume the Declaration of Independence to be an ideological complement to the constitution. For this purpose, we would have to part with the idea of the traditional lockian-Page 180rousseaunian perspective of only one social contract between the people and government (like a granted charter), to establish the idea that the social contract is made in subsequent phases and contracts (which can all be celebrated separately or at the same moment in time), which would then be: the foundation of society and its goals (Declaration of Independence), the creation of government (ultimately the Constitution, but before it other documents like the Articles of Confederation) and finally, the determination of who and how is going to rule (also done in the constitution, as to the procedure and modes of election, as well as the oaths of office, but differed in time to its celebration in different time periods like elections and tenure of office).
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Therefore, if we are to take into consideration what has previously been said, the written constitution would then be set in a larger framework, consisting of not just one document, but two, much more than having an unwritten constitution integrated, as some have even suggested when talking about Calder v. Bull. Should that be the case, the written constitution would have an ideological support in a document such as the Declaration of Independence, which it could not disregard, because being part of the same social compact, lato sensu speaking.
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This done, if we can set Declaration and Constitution as a block, by looking at Justice Chase's background and relationship with the document and ideas of the Declaration of Independence, we will be in a position to try to give a definitive meaning to these "first principles of the social compact", and to see if the system of interpretation we claim to identify in Calder v. Bull could endorse the idea that any provision of the Constitution, every law of the legislature, has to pass the test of an interpretation compatible with the substantive content of the Declaration of Independence.
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Once that is accomplished, we will proceed to differentiate this dictum from the mere endorsement of the substantive due process doctrine, the existence of an unwritten constitution and natural law, as well as to determine finally what would the implications of such a scheme of interpretation be to determine unconstitutional legislation through the concept of a social covenant. When this is accomplished, we will be in a position of testing this theory with some of the landmark cases in United States Supreme Court history.4
Page 181
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Calder v. Bull is a case remembered because of its definition of what an ex post facto law ought to be. But instead of concentrating in the facts of the case,5 and whether Calder or Bull had a right to inherit the estate of Mr. Morrison, whether there was a vested right in the whole controversy, or even an invasion of the state legislature into the powers of the state judiciary, whose decision in the case was overruled by passing a new statute, or even in the debate held between Justice Chase and Justice Iredell to determine if a law repugnant to natural law can be declared void by the Court, which was completely inconsequential6 to the outcome of the Page 182 decision, we consider it to be more appropriate to concentrate on Justice Chase's dicta in the opinion regarding how the Constitution ought to be construed, since this is the important aspect of the case with regard to the whole scope of this work.
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On this regard, Justice Chase's dicta, are the following: "(...) I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State. The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the...
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