If Your Lease Were Read Like a Living Constitution, a Satire in Five Clauses

This post is a thought experiment and a work of satire. Everything in the apartment below is invented: the building, the landlord, the tenant and every conversation in them. None of it happened, none of it is a news report, and no real landlord or real lease is meant. The point is to follow an idea to the end of its logic and see what is standing there when it arrives. Then we will come back to the real law, with real quotations, and see why the joke was not entirely a joke.

The idea is this. A school of constitutional thought holds that the Constitution is a "living" document whose words mean whatever current values require, so that judges may update it as society evolves. Its defenders say this is how a wise legal system stays flexible. I would like to test the claim by moving it from the Supreme Court to a two-bedroom apartment, where the stakes are low and the logic is easier to see.

The setting

Picture a building called the Evergreen Arms, a mid-sized apartment house in an imaginary city. A tenant named Dana signs a twelve-month lease with the landlord, a man we will call Mr. Prosper. The lease is four pages long. It is written in plain English, signed by both parties, and notarized.

On the day Dana moves in, Mr. Prosper makes a short, warm speech. "This lease," he says, "is a living document. It is not a cage. Its words must breathe with the times." Dana, who is carrying a box of kitchen things and is thinking about where to put the couch, nods politely. This is the last moment of the story in which anyone is comfortable.

Clause one: the rent

The lease says Dana will pay $1,200 a month, due on the first. It is the least ambiguous sentence in the document. A child could read it.

In month three, Mr. Prosper delivers a note. "In light of evolving market conditions," it reads, "the word 'rent' in the lease now means whatever a reasonable landlord in this neighborhood would currently charge. I have consulted the current standard. It is $1,850."

Dana points to the number in the lease. Mr. Prosper nods sympathetically. "That number," he says, "was written by people in an earlier month. We cannot be ruled by the dead hand of the first of January. Besides, I have a very sophisticated view of what the number was trying to say. It was trying to say 'a fair rent.' The figure was simply the best available approximation at the time."

Notice the move. He did not change the lease. He interpreted it. Nobody voted, nobody signed anything, and nobody was asked. The figure on the page stayed exactly where it was. Only its meaning moved, and it moved in the direction of the person doing the interpreting.

Clause two: the deposit

The lease says that Dana paid a security deposit of one month's rent, to be returned within thirty days of move-out, less documented damage.

At move-out, Mr. Prosper explains that "security" is an evolving concept. In an age of heightened anxieties, security now means a deposit that is secure from the tenant, in the sense of being held securely by the landlord. As for "returned," that is a word of great generality. Returned to what condition? To whom? Returned in what spirit? "I believe," says Mr. Prosper, "the framers of this lease meant the deposit to be returned in principle. And in principle it was."

Dana points out that the clause says thirty days. Mr. Prosper replies that thirty is a number, and numbers are not self-interpreting.

Here is the first thing the experiment shows, and it is the thing that matters most. The party who gets to say what the words mean is the party who has written himself a blank check. Not because he is wicked. Because a promise only binds if its words stay put. A deposit that comes back "in principle" is no deposit at all.

Clause three: the pets

The lease says: "No pets, except one cat under fifteen pounds." Dana has a nine-pound cat. This one is simple.

In month five Dana adopts a second cat. Mr. Prosper arrives with a clipboard. "The lease prohibits pets," he says. "I'm afraid I will have to ask you to remove both cats." Dana points out the exception. Mr. Prosper leans back. "That exception was a product of its time. The word 'cat,' in my reading, referred to the then-current understanding of cats. We now know more about cats. Frankly, the modern view is that a cat is a small tiger, and tigers are not covered."

Dana says the lease says "one cat." Mr. Prosper says that on reflection the word "one" is also open to interpretation.

I am exaggerating, and you are laughing, and the exaggeration is the point. The two-cat landlord is silly only because we can see his thumb on the scale. A reading method that gives the reader unlimited power to find new meaning in old words has exactly the same logic whether the words are about a cat or about the powers of the federal government. The only difference is that in the apartment someone is watching.

Clause four: the repairs

The lease says: "Landlord shall repair the heating system within five days of written notice." Dana's heat goes out in January. She sends written notice.

Mr. Prosper replies in a letter of impressive length. "The lease obligates the landlord to repair the heating system within five days. But a modern understanding of 'repair' must account for the practical realities, and a modern understanding of 'heating' includes the whole spectrum of warmth, including sweaters. Dana, I observe, owns several."

By the second week, Dana has begun to notice something. Every one of Mr. Prosper's interpretations has moved the lease in the direction of what he wanted. None has ever moved it in the other direction. The living document, it turns out, is alive in only one direction.

That is the critic's real complaint about living-constitution reasoning, and I think it is the fairest one. It is not that the method has no principle. It is that the method has no limiting principle that is independent of the reader. If the evolving meaning tracks "current values," whose values are those? Mr. Prosper's values and the tenant's values are different, and the lease is the thing that was supposed to settle which of them governs.

Clause five: the term

The lease says it runs twelve months, from January 1 to December 31, and may be renewed only by a signed writing from both parties.

At the end of month eleven, Mr. Prosper announces that the term is "ongoing and evolving." He explains that twelve months was the number the original parties chose, but a durable relationship cannot be bound by a calendar. Dana could, in theory, be evicted tomorrow or never. It would depend on how the term evolves.

Dana asks the obvious question. "If the words in this lease can change meaning without my signature, what exactly did I sign?"

That is the only question in this whole experiment that matters, so let me say it again slowly. If the words can change without the signature, what was the signature for?

The steelman: a fair word for the living-constitution view

I owe the other side its best argument, and it is a good one, so let me state it the way its defenders would.

They would say: a lease is a private bargain between two people, and a constitution is the charter of a nation meant to last for centuries. The comparison is unfair. A constitution uses deliberately general phrases, such as "unreasonable searches" and "equal protection of the laws" and "cruel and unusual," and general phrases cannot apply themselves. Society really does change. Judges therefore have to apply old principles to new facts, and no one can apply a principle to the new without sometimes extending it. A judge who refused to do so would be turning the Constitution into a museum piece.

All of that is partly right, and I concede it. General words do need application, and new facts do arise. But the objection answers a different question than the one the satire asks. Everyone agrees a judge must apply a fixed meaning to new facts: the Fourth Amendment's "unreasonable searches" can reach a thermal imager that did not exist in 1791. What the lease satire targets is the further claim that the meaning itself moves with current values. Applying "no unreasonable searches" to a new gadget is one thing. Deciding that the clause now means whatever the judge thinks is reasonable by modern lights is another. The second is Mr. Prosper's two cats.

So the real question is where the principle comes from. If it comes from the text and what the words meant when adopted, a limit exists and a citizen can check it. If it comes from the reader's evolving sense of the good, the only limit is the reader's self-restraint, and as the Evergreen Arms illustrates, self-restraint is what a landlord promises right before he raises the rent.

Back to the real law: what the Founders actually said

Now step out of the apartment. These are the real documents, and the quotations are exact.

Marbury v. Madison (1803). Chief Justice John Marshall wrote: "The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written." That sentence is the whole argument for fixed words. Constitutions are written so that limits cannot drift. A limit that evolves with the person it limits is no limit. For the full treatment of the case and its restraint, see Marshall Gave Up William Marbury's Commission to Win the Bigger Argument.

Federalist 78. Alexander Hamilton explained why the courts could be trusted with so important a power: they would have neither the sword nor the purse, only judgment. He wrote that "a constitution is, in fact, and must be regarded by the judges, as a fundamental law," and that where the will of the legislature, declared in a statute, stands in opposition to the will of the people, declared in the Constitution, "the judges ought to be governed by the latter rather than the former." He also warned what would happen if judges forgot their role: if they were disposed to exercise "WILL instead of JUDGMENT," the consequence would be "the substitution of their pleasure to that of the legislative body." Hamilton had met Mr. Prosper before, apparently. You can read the whole essay slowly in Neither Force Nor Will, Hamilton's Federalist 78 Read Line by Line, and the summary at Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right?.

Article V. The Constitution does contain a way to change its terms, and it is not the evolving-meaning method. It reads that Congress, "whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution," or that on the application of two-thirds of the state legislatures a convention may be called, and that amendments are valid "when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof." In the lease's terms, Article V is the clause that says: to change the lease, both parties sign.

That is the honest way to update the document. Dana and Mr. Prosper could sit down and agree to a new rent, with signatures, at any time. If the rent has become unreasonable, there is a way to say so and fix it, and it does not involve pretending that "$1,200" always meant $1,850. The twenty-seven amendments, counted in Twenty-Seven Amendments Out of Over Eleven Thousand Proposals, by the Numbers, are what honest change looks like. Some of them reversed decisions of the Supreme Court, and every one of them required the consent of the governed.

Three numbered points the satire is meant to prove

1. A promise has to stay put to be a promise. If either party can move the meaning of the words after the fact, the document is no longer a contract. It is a suggestion that the stronger party interprets.
2. Application is not amendment. Applying a fixed principle to new facts is a judge's job, and it requires no theory of evolving values. Changing the principle itself belongs to the people who ratified it, through the process they wrote.
3. The weaker party is the one who needs fixed words. Mr. Prosper does not need the lease to bind him, because he holds the keys. Dana needs it, because it is all she has. The same is true in a constitution: majorities and governments can protect themselves, and it is the individual, the minority and the unpopular who depend on the words meaning what they said. That is the case made in Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not for a judiciary that checks power instead of becoming it.

An objection from the other side, answered

A fair critic says: you have built a scarecrow. No serious living-constitution scholar claims a judge can make words mean anything he likes. They argue for a disciplined common-law approach, building doctrine step by step from precedent and principle.

That is a fair correction, and I accept it. The most careful versions of the view do argue for constraints, and the people who hold them are not Mr. Prosper. My answer is the one in Hamilton's warning: the discipline must come from somewhere outside the judge's own preferences, and the text, the original meaning and the amendment process supply that something. Where a theory's limits are chosen by the people it limits, the theory deserves the lease treatment. The honest living constitutionalist will tell you where the limit lies, and then we can argue about whether it holds.

The end of the lease

Dana, in this story, does not stay at the Evergreen Arms. She moves out at the end of the twelve months, which the lease says she may do, and which Mr. Prosper does not dispute, having run out of ways to evolve the word "twelve." She finds a building where the landlord reads the contract as written, and she signs a new lease, with both signatures, at a rent she agreed to.

That is the whole lesson in one picture. Dana's right to leave was the part of the lease that did not depend on Mr. Prosper's goodwill, because it was written down and meant what it said. Citizens cannot move out of the country the way a tenant moves out of a building, which is exactly why the words of the founding document need to mean what they said when we signed them.

The case in brief

1. A lease read as an evolving document lets the reader change rent, deposit, pets, repairs and term without the other party's signature, which makes the promise meaningless.
2. The fair distinction is between applying a fixed meaning to new facts, which every judge does, and changing the meaning itself, which belongs to the people.
3. Marshall in Marbury said the constitution is written so that limits "may not be mistaken or forgotten," and Hamilton in Federalist 78 warned against "WILL instead of JUDGMENT."
4. Article V is the honest way to change the terms: two-thirds to propose, three-fourths to ratify, and the signatures of the governed.
5. The weaker party, the individual and the minority most need the words to hold still.

What you can do: read Article V in the Constitution's own text, then ask your state legislators whether they would support or oppose an amendment you care about, so that change is signed rather than announced.