Forget it's the U.S. Constitution we expound. Think of it, instead, as a contract. The Constitutional contract primarily binds agents of the U.S. federal government and its constituent states. That, it does expressly. It binds other parties more weakly, via implied or hypothetical consent. But anyone over whom the U.S. claims jurisdiction thereby wins standing to enforce the Constitution as an intended beneficiary. Thus may citizens sue the government.
Viewing the Constitution as a contract proves quite an interesting exercise. It suggests a number of interpretive rules--rules tested over hundreds of years and thousands of cases--that could help us discern the objective meaning of the constitution and the proper scope of its enforcement. Constitutional contractualism suggests, for instance, that we interpret the U.S. Constitution as a form contract written, judged, and offered by a government services provider. That adhesion contract binds citizens to the extent that they objectively manifest consent to the federal government's proposed bargain. The Constitution thus binds most of us only rather weakly.
How should we read the constitution-qua-contract? Pretty much the way we read other contracts. Thus, for instance, we should start with the plainest meaning of the text, taken as a whole, that a reasonable person would have adopted when accepting the contract; we should interpret vague or ambiguous language against the agreement's drafter; and we should favor efficient and equitable remedies for breach. At the time of its founding, on that view, the Constitution meant what those who ratified it did or should have thought it meant. Now, though, the Constitution means what it does or should mean to those of us it binds or benefits.
A contractual constitution can claim justifiability only relative to certain parties, such as one who signs a promise to obey the Constitution. A hierarchy of justifications applies to the constitutional contract, running from the ideal of a negotiated and express agreement between equals, through a form contract imposed from on high, down to consent implied by conduct, bottoming out at hypothetical consent. Greater justifications trump lesser ones. An express disavowal of allegiance, for instance, typically negates an argument for implied consent. Constitutional contractualism thus suggests that the U.S. Constitution binds government agents very tightly, while binding the government's subjects only loosely, at most.
Contractual constitutionalism suggests reforms that might make the U.S. federal government, as well as governments generally, more justified. It suggests, for instance, that suits against the government should not be tried by agents of the same. Rather, they should go to private, third-party, mutually-chosen arbitrators. Judicial independence and the jury system gesture in that direction, but leave ample room for improvement. Contractual constitutionalism also suggests interesting observations about the legal status of immigrants, the validity of "The Pledge of Allegiance," and the proper response to secession.
Because it advocates the initiation of coercive force, statism cries out for justification. Constitutional contractualism answers that call with a ruggedly practical methodology, one built on time-tested principles of common law. Yet constitutional contractualism also offers a transcendental appeal, one springing from the observation that a putative justification must seek with good intent to win the consent of its audience. Thus do principles of contract law measure the justification of the Constitution; thus does consent counterbalance coercion on the scales of justice.
I plan to work up these ideas in an academic paper, tentatively called "The Constitution as Contract." I'm come late to the Con Law party, admittedly. I stand at the entry, shuffling my feet awkwardly, staring at my shoes. Please introduce me to arguments you think I should know, whether friendly or challenging. I've of course read Randy Barnett's inspiring work and I've followed the long-running blogospheric debate over originalism at Larry Solum's, Legal Theory Blog, Brian Leiter's Law School Reports, Mike Rappaport at The Right Coast, Jack M. Balkin at Balkinzation, and elsewhere. It looks like a fun discussion, and one that I hope to enliven.