Constitution as Promise

Abstract

Constitution as Promise contends that constitutions are sets of promises. As such, it argues that they must be interpreted in a living constitutionalist manner. Chapter One argues that constitutions meet the analytic criteria to be considered promises. It is argued that constitutions are expressions of the intention of a government to bind itself to a set of principles. Absent this expression, citizens lack assurance of the protection of their rights and legal recourse when their rights are violated. Chapter Two considers the use of promise in contract theory and investigates its viability in constitutional theory. Some theories of contract are skeptical of promise as a basis for contract. The chapter argues that while promise may be an inadequate moral underpinning for the law of contract, it is apt for the law of constitutions. Chapter Three notes that constitutions are sets of vague promises. Vague promises ought not be interpreted solely in accordance with the intentions of promisors or promisees. Traditional forms of originalism contend that constitutions should be interpreted according to the intentions of their framers. So, constitution as promise rules out traditional forms of originalism. Chapter Four considers the positive consequences of constitution as promise. It argues that vague promises ought to be interpreted through a negotiation process between promisor and promisee. This negotiation should consider what moral reasoning reveals about the promise’s terms, the context in which the promise was uttered, the capacities and competing obligations of the promisor, and the expectations of the promisee. To properly consider these factors, the chapter maintains that the negotiation must occur on a case-by-case basis, incrementally specifying the promise’s terms. The chapter then notes the similarities between this negotiation process and the interpretive suggestions of living constitutionalism. It concludes that living constitutionalism is entailed by the promissory nature of constitutions.