In my recent piece over at the Tenther Blog, it wasn’t the focus of the essay, but I state:
“even with the best intentions, the interpretation of a long-term compact like a constitution will drift over time, as its interpreters change and as the language changes”
It would have made the essay too long to include the detailed reasoning behind that conclusion, so I thought a small supplemental post, explaining the reasoning, might be helpful.
I will quickly cover three reasons why long-term covenants are never going to hold the same exact meaning over time:
- Even without the malicious influence of power-seekers, language changes over time and all such covenants and contracts must be interpreted by currently-living people.
- In the same way that Friedrich Hayek observed that economic knowledge is spread out over multiple people and there are so many details that it would be impossible to give them all to a central planner, the understanding of a covenant is distributed. Even if a judge wanted to pass on his understanding of the contract to a successor, the knowledge passed on could be incomplete.
- In John Hasnas’s paper The Myth of the Rule of Law, he observes that large bodies of law may contain self-contradictions, and precedents are never perfectly applicable, such that two reasonably similar precedents may conflict when applied to a third case. As any judge of a covenant must rely on some combination of his own understanding of the covenant and precedent, it is impossible to guarantee that such interpretations will always be consistent.
These three reasons mean that long-term covenants, which are expected to last longer than a person’s lifetime, will always shift somewhat in how they are interpreted. In fact, these changes are often significant over the life of a single person. Therefore, it is impossible to guarantee that anyone who joined a covenant will not find fault with some later interpretation and disagree with it.
Therefore, covenants must either recognize the ability of members to leave at-will or provide terms for exiting the covenant. Failing to provide terms implies that the covenant is at-will.