How would you like if your mortgage were a "living document"?

Question

Or any other contract... What if you signed a contract and could have it reinterpreted regardless of your intent and without your consent?

All but the least astute will see my intended parallel to the U.S. Constitution. Granting that explicitly, I'll give extra consideration to answers that can address how the Constitution may be considered to be a legal contract at all.

Answer 1

The constitution is not a legal contract in the way that a mortgage is. A mortgage is a loan agreement. It says you owe x amount of dollars and you will pay it back at a given interest rate in a given amount of time. It is a quantitative document. The constitution is a protocol for how the government will operate and what rights various entities have. It must be interpreted when new situations arise. Do you disagree with the idea that shouting "fire" in a crowded theater when there is no fire is not protected under the first amendment? It appears to be protected by the first amendment. This was a supreme court case.The court wisely decided that this was not protected speech as it serves no legitimate purpose. The other reason the constitution is called a living document is that it can be amended. The process is built into the document itself.

Answer 2

Most of SCOTUS belive in the Living Document theory to  weave decisions based upon the un basable. A moving target of justice.

Answer 3

The US constitution fails the common law test of a civil contract on several grounds.   The common law says that a contract requires an: "offer and acceptance (agreement), consideration, an intention to create legal relations, capacity and Formalities."1  Intention, capacity, and formalities are all arguably present.  While some may say that taxation is equivalent to consideration it is not given as a reason for an agreement.  It is also unclear who the parties are exactly.  All of us vs one of us?  But this does not mean that it is not "legal" and binding.  

A will is not a contract and it can be binding.  Likewise a treaty is not a necessarily a contract among individuals but it is said to be binding, even laws are not contracts but have force.  In law, there is a distinction between civil law (of which contracts are a part) and criminal law with which most are familiar. One site lists 21 "branches" of law" including a separate one for constitutional law.  What would you say if in one of your business meetings someone around the table would speak up and say, wait, we haven't considered the economic effects of rainfall upon potted plants.  After you considered that their career was just effectively shortened by a few decades you might wonder just how that could possibly relate.  Constitutional law and civil law are different branches with only the word law in common.  

Another way of looking at the constitution as a contract is through history and the realization that the framers of the constitution were influenced by the enlightenment thinkers.3  One cornerstone of this is "The Social Contract"4 by Rousseau and also in the "Leviathan", by Thomas Hobbes, and the second, "Treatises of Government", by John Locke.  In short there is an implied contract.  If not something you can take into a court of law than at least a way of understanding.

With respect to agreements and living documents, I have come to believe that a contract is not worth the paper it is written on if in fact there is no agreement between the parties.  What is the good of saying "I can sue" if that suit is going to cost you more than the original agreement.  A great deal of trouble can be avoided if the parties attempt to stay in communication and are trying to deal in good faith.   The contract is only evidence of an agreement it is not necessarily the agreement itself.  (One notable exception is contracts that under the statute of frauds are not legal unless written like contracts for the sale of land (Deeds) or in some states like NJ contracts for construction on your house.7  

--------------Response--------------

I am going to take things rather out of order if the space permits I will cover everything.  A will is negatively coercive on someone who is not named in the will who by other inheritance laws would have inherited. Do you lose any less if I first put money into your pocket and then take it or simply take it in route to your pocket.  Are you enslaved any less if you are born into slavery rather than having your freedom taken from you?  But let’s not argue this point as you have already acceded to the point of the example, that the constitution can be binding without being a contract.

Similarly, I want to quickly make some observations on Spooner’s writings that you have cited:   He starts off with the premise that only contracts are enforceable between parties and unless one man agrees with another no enforceable, binding, arrangement is created.  (To call it an agreement is to assent that only contracts should bind us.)  Essentially the paper is an attempt to say any coercion outside of what I have personally agreed to do is illegitimate.  This may be foolish to the extent that it ignores many responsibilities we would today consider natural.  Does the father of a child out of wedlock “agree” to support the child on the night of conception?  How can we say he has “agreed” when he did not know it existed?  Regardless of how well he meets those responsibilities most would say without some unusual circumstances some responsibility exists.  The responsibility flows from the action.  Should he be coerced?  Does the son or daughter “agree” to help the aged parent?  We might say they supported the child so there is a quid pro quo.  But there is no typical intent to enter into a bargain unless you acquiesce that before birth some binding agreement was made.  If we have obligations to parents before we are born, why not to our country in which we are born?  And what of agents?  Some employees of companies are said to be agents.  They act on behalf of their employers.  Some might sign contracts but others might be subject to the agreements of others.  A company health policy or workman’s compensation are both examples.  We can be part of a group with rights and responsibilities when we never signed in or opted out.  

Initially, he heavily relies upon the wording of the preamble to the Constitution (“We the people” and inserts the words “ then existing” to suggest it is only an agreement between dead people with no intent to be binding upon those who follow.  This is easily refuted by noting that later in the same document there is a mechanism to make amendments in the future.  He also suggests that no agreement is binding upon those that follow.  As a lawyer, I am sure he was quite familiar with property law where easements and rights of way are intended to “run with the land” in perpetuity.   You buy the rights and agree to the restrictions with the deed so there is an old precedent for rights and obligations to be handed down to the next generation.  

Spooner then does a reasonably effective job showing that taxes and voting do not imply consent.  Fresh from this success he moves that there is an assumption that if a written contract is unsigned there is no agreement.  However there is the concept of implied consent and implied contracts.  The presumption of no agreement can also be refuted and the unsigned written agreement will then be evidence of the terms of the contract. (Basic contract law,  sorry can’t find a cite at this time) Next is an argument I mentioned above.  Under the concept known today as “statute of frauds” important agreements (like deeds) should be in writing and signed. ... lots of talk of secret ballots and not liking being coerced...

It all presumes that 1. Only a “contract” is valid for coercion and 2 The constitution is not an agreement so it can’t be a contract. 3. There is no valid reason for coercion.   Apparently, Spooner himself was an abolitionist, but supported the south in the civil war for the right to secede, he wrote that the constitution was not binding but wrote a book titled , “The Unconstitutionality of Slavery.”   He never married, supported the women’s movement but thought they should move to abolish government instead of try to take part in it.   He supported the concept of assassination of presidents and what we might today call terrorism, the use of dynamite against power.(http://uncletaz.com/liberty/spooner.html...

You said the philosophers have “contorted” to establish the concept of a social contract.  That is a value judgement and not an argument on the merits.  (Ditto for later referring to the “dastardly part” of  Rousseau’s social contract.)  I mentioned the references only to point out that agreements can be implied by actions which I will say again.  Even in existing contract law there is the concept of implied contracts.

contract is implied when a party knowingly accepts a benefit from another party in circumstances where the benefit cannot be considered a gift.” (http://www.businessdictionary.com/defini...

You have said that “will” only exists within thinking individuals. Yet there is a dictionary definition that expressly discusses the will of a community.  (General will http://www.merriam-webster.com/dictionar...  Such definitions come about from general usage.  You can SAY there is no such thing but the concept exists.  You can reject it if it does not fit your theories, but your theory then IS being bent to fit selected facts.  

We have had some discussion previously regarding freedom and discipline.  (http://answers.yahoo.com/question/index;... The essence for the individual is that discipline gives freedom.  For the individual in the state the boundaries defined by laws will also define our freedoms.  In this “dastardly part” of Rousseau’s work that you quote above, “Whoever refuses to obey the general will shall be forced to obey it by the whole body politic, which means nothing else but that he will be forced to be free.”, the same thing is restated.  

In other questions you have advocated private funding of welfare while at the same time decrying personal dependency to others. (http://answers.yahoo.com/question/index;...  The next line of the quote speaks to that.  When the state pays we are not oppressed by debt moral or financial to one individual.  

I would only agree that the “very concept of forcing an individual to be free is ...[seemingly]... a horrible contradiction.”  It is within my experience that the tension between two seeming contradictions is often where the most wisdom can be found.  The contradiction exists.  It behooves us to discover and understand why.  To do anything less is to sell ourselves short.  It is to say that we do not have the capacity to see and therefore nothing exists.