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88 Colum. L. Rev. 647 (1988)
The Continuity of Legislatures: Of Contracts and the Contracts Clause

handle is hein.journals/clr88 and id is 657 raw text is: COLUMBIA LAW REVIEW VOL. 88 MAY 1988 NO. 4 THE CONTINUITY OF LEGISLATURES: OF CONTRACTS AND THE CONTRACTS CLAUSE Stewart E. Sterk* Legislatures change constantly. Each election brings new legisla- tors and removes old ones. Those who remain are nevertheless af- fected by the changes in composition, and by other changes wrought by the passage of time. These changes in composition and changes in ex- ternal stimuli inevitably produce pressure for changes in policy. And in a democratic system, legislatures are generally free to reverse or modify the policies of their predecessors. Sometimes, however, this freedom is confining. Sometimes legis- lators might want to provide reassurance and stability. But so long as each legislature has complete freedom to reverse past policies, a legis- lature has only limited capacity to provide stability and reassurance. Individuals with personal freedom face an analogous problem. If an individual remains free from legal compulsion as he makes personal choices throughout his life, the existence of social pressures-guilt and retribution, for instance-may make it possible for him to reassure the people around him about his future actions. But he could provide greater reassurance if he could fetter his future freedom by creating a legal obligation to others. Contract provides that reassurance mechanism. Legislatures, too, could provide reassurance by contract. But leg- islative freedom of contract raises problems in democratic theory. Why should an agreement made by a past legislature bind the legislature that voters have most recently empowered to act on their behalf? * Professor of Law, Benjamin N. Cardozo School of Law. I would like to thank David Carlson, Kent Greenawalt, Paul Shupack, Chuck Yablon and Bill Young for inci- sive comments on earlier drafts, and Vivien Naim for helpful research assistance. 1. J. Roland Pennock puts the question in its starkest form when he examines a proposal, supported by a majority of voters (or of the legislature), to abolish the demo- cratic form of government and to substitute dictatorship by one man. Pennock resolves the apparent dilemma by resort to constitution makers who, he asserts, would not be likely to want a simple majority to govern in this case: It is true, to be sure, that in the hypothesized case (of a majority desiring to abolish democracy), aggregated preferences (each counted equally) would not be maximized. That is to say, the action taken (or not taken) would thwart the preferences of more individuals than it would satisfy, at that moment. However, the hypothesis is that rational constitution-makers, believing in a system which would be most responsive to individual preferences, and calling such a system democratic, would consider the long run. Most certainly, they would try to prevent action that would subordinate all future individual preferences to the will of one man.

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