Calder v. Bull, interpreting the Constitution as a social compact; or a sequel to Jean Jacques Burlamaqui and the theory of social contract (I)

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.

I. Introduction.

1. 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.

2. 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

3. 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.

4. 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 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.

5. 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.

6. 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.

7. 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.

8. 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...

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