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. [This essay was written in
1869.] 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 tranquility, 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, tranquility, liberty, etc.
Suppose an agreement were entered into, in this form:
We, the people of Boston, agree to maintain a fort on Governor's Island,
to protect ourselves and our posterity against invasion.
This agreement, as an agreement, would clearly bind nobody but the people
then existing. Secondly, it would assert no right, power, or disposition,
on their part, to compel their "posterity" to maintain such a fort. It
would only indicate that the supposed welfare of their posterity was one
of the motives that induced the original parties to enter into the
agreement.
When a man says he is building a house for himself and his posterity, he
does not mean to be understood as saying that he has any thought of binding
them, nor is it to be inferred that he
is so foolish as to imagine that he
has any right or power to bind them, to live in it. So far as they are
concerned, he only means to be understood as saying that his hopes and
motives, in building it, are that they, or at least some of them, may find
it for their happiness to live in it.
So when a man says he is planting a tree for himself and his posterity,
he does not mean to be understood as saying that he has any thought of
compelling them, nor is it to be inferred that he is such a simpleton as
to imagine that he has any right or power to compel them, to eat the fruit.
So far as they are concerned, he only means to say that his hopes and
motives, in planting the tree, are that its fruit may be agreeable to them.
So it was with those who originally adopted the Constitution. Whatever may
have been their personal intentions, the legal meaning of their language,
so far as their "posterity" was concerned, simply was, that their hopes and
motives, in entering into the agreement, were that it might prove useful
and acceptable to their posterity; that it might promote their union, safety,
tranquility, and welfare; and that it might tend "to secure to them the
blessings of liberty." The language does not assert nor at all imply,
any right, power, or disposition, on the part of the original parties to
the agreement, to compel their "posterity" to live under it. If they had
intended to bind their posterity to live under it, they should have said
that their objective was, not "to secure to them the blessings of liberty,"
but to make slaves of them; for if their "posterity" are bound to live under
it, they are nothing less than the slaves of their foolish, tyrannical,
and dead grandfathers.
It cannot be said that the Constitution formed "the people of the United
States," for all time, into a corporation. It does not speak of "the
people" as a corporation, but as individuals. A corporation does not
describe itself as "we," nor as "people," nor as "ourselves." Nor does a
corporation, in legal language,
have any "posterity." It supposes itself
to have, and speaks of itself as having, perpetual existence, as a single
individuality.
Moreover, no body of men, existing at any one time, have the power to
create a perpetual corporation. A corporation can become practically
perpetual only by the voluntary accession of new members, as the old ones
die off. But for this voluntary accession of new members, the corporation
necessarily dies with the death of those who originally composed it.
Legally speaking, therefore, there is, in the Constitution, nothing that
professes or attempts to bind the "posterity" of those who established it.
If, then, those who established the Constitution, had no power to bind, and
did not attempt to bind, their posterity, the question arises, whether
their posterity have bound themselves. If they have done so, they can
have done so in only one or both of these two ways, viz., by voting, and
paying taxes.