The Social Contract and Constitutional Republics

Copyright 1994, 2007 Constitution Society. May be copied with attribution for noncommercial purposes.

Between 1787 and 1791 the Framers of the U.S. Constitution established a system of government upon principles that had been discussed and partially implemented in many countries over the course of several centuries, but never before in such a pure and complete design, which we call a constitutional republic. Since then, the design has often been imitated, but important principles have often been ignored in those imitations, with the result that their governments fall short of being true republics or truly constitutional. Although these principles are discussed in civics books, the treatment of them there is often less than satisfactory. This essay will attempt to remedy some of the deficiencies of those treatments.

The Social Contract and Government

The fundamental basis for government and law in this system is the concept of the social contract, according to which human beings begin as individuals in a state of nature, and create a society by establishing a contract whereby they agree to live together in harmony for their mutual benefit, after which they are said to live in a state of society. This contract involves the retaining of certain natural rights, an acceptance of restrictions of certain liberties, the assumption of certain duties, and the pooling of certain powers to be exercised collectively.

The social contract is very simple. It has only two basic terms: (1) mutual defense of rights; and (2) mutual decision by deliberative assembly. There are no agents, no officials, that persist from one deliberative assembly to another. The duties of the social contract are militia. There may be customs that persist from assembly to assembly, such as customs for due notice, parliamentary procedure, judicial due process, and enforcement of court orders by militia. This second term could be called the constitution of society, but it precedes a constitution of government and should not be confused with it.

There is also a constitutionution--> -->constitutionon of nature that precedes both the constitution of society and the constitution of government. It is also convenient to speak of a constitution of the state that follows the constitution of society and precedes the constitution of government. It arises after a society is created (by adopting the social contract), and after it acquires exclusive dominion over a well-defined territory. That is when we get things like a right to remain at and to return to one's birthplace, which makes no sense for a society with no territory (such as nomads).

A constitution of government, such as the Constitution of 1787, is the next step in the development. It is to establish institutions, offices, procedures, duties, and structures that persist from one assembly to another that are not just customs. It is at that point that we begin to get things like laws, and paid agents and officials, whose jobs continue beyond transient assemblies. We also get taxes, standing armies, and professional law enforcers.

Such pooled powers are generally exercised by delegating them to some members of the society to act as agents for the members of the society as a whole, and to do so within a framework of structure and procedures that is a government. No such government may exercise any powers not thus delegated to it, or do so in a way that is not consistent with established structures or procedures defined by a basic law which is called the constitution.

While it is possible in principle for such a constitution to consist entirely of a body of unwritten practices, traditions, court decisions, and long-established statutes, in practice no such basic order can be considered secure against confusion or corruption if it is not primarily based on a written document, which prescribes the structure, procedures, and delegated powers of government, and the retained rights of the people, and which is strictly interpreted according to the original intent of the framers.

Although in principle the procedures may allow for the direct adoption of legislation by vote of the people, this is both impractical and potentially dangerous, especially to the rights of minorities, so that it is generally best that most legislation require approval at some point in the legislative process by a deliberative assembly, a body of elected representatives rather than by direct popular vote, and that any such legislation be subject to judicial review, whereby legislation not consistent with the constitution can be voided. Such a form of government is called a republic, as distinct from a democracy, in which all legislation is adopted solely by direct popular vote. And if it operates under a well-designed constitution, it is a constitutional republic.

It is important that the deliberative assembly fairly represent all the competing interests of the people, so that the concerns of minorities can be weighed and not ignored. But fair representation is insufficient if deliberation is not effective in analyzing and anticipating all the consequences of any decisions that might be made. The consent of the majority should be necessary for action, but that consent should never be sufficient for action.

Origins of the Social Contract

Critics of social contract theory argue that almost all persons grow up within an existing society, and thesocial contractve the choice of whether to enter into a social contract. Not having a choice, they say, makes any such contract void.

The original proponents of the social contract theory, John Locke, David Hume, and Jean-Jacques Rousseau, answered these critics, but not the social contractntirely satisfactory. To understand how the social contract comes about, we need to look at the kinds of contract that prevail during each stage in the development of a human being in society.

Each of us begins life under the terms of a special kind of social contract called a filial contract, between a child and his parents, and by extension to his siblings. That contract is established at the moment of bonding between parents and child following birth, and the terms of the contract are that the child will provide the parents certain pleasures that come with parenthood, particularly the satisfaction of helping to form a happy and admirable adult, and support for the parents in their later years, and in turn receives their love, support, guidance, and protection during childhood.

Although a filial contract can exist in a family that is isolated from any larger society, when the parents join a society, they pool their rights and duties as parents with other members of that society, and thereby become agents of the larger society in the raising of their own children, and accountable to that larger society for doing so properly.

As a child grows, it encounters other members of the larger society, usually beginning with other children. Whenever any two or more individuals meet with the understanding and expectation that they will live together in harmony and not fight with one another using any available means, they are establishing a social contract among themselves. In most cases they will be contracting with persons who have already established such a contract with still other persons, so that the terms of the contract are not only to live in harmony with those in direct contact, but also with all thsocial contract -->social contractparties is already engaged in a social contract, and by extension, to all others that those are in a social contract with, and so on. In other words, the social contract is transitive: if a is in a social contract with b, and b with c, then a is in a social contract with c. In this way each of us is bound under a social contract with all the other members of the society, most of whom we have never met.

As a person makes the transition from childhood to adulthood, his obligations change to match his abilities, and the filial contract gives way to the larger social contract and obligations to larger communities at the local, provincial, national, and global levels.

Of course, the social contracts of several societies may not extend to one another, giving rise to tribes or nations, whose members are bound by social contract within their membership, but are in a state of nature with respect to one another. If that state of nature involves active conflict, whether at the individual, tribal, or national level, it is said to be a state of war.

Breaches of the Social Contract

Although the situation of there never having been a social contract is a fairly simple one, the situasocial contrsocial contract/a> -->deceiving another into thinking there is a social contract between them, or of entering into a social contract and then violating its terms, can be much more complicated, and much of law and government is concerned with dealing with such situations.

In his treatment of the subject, Locke tended to emphasize those violations of the sthe social contractzil19 --> that are so serious that the social contract is entirely broken and the parties enter a state of war in which anything is permitted, including killing the violator. Today we would tend to place violations on a scale of seriousness, only the most extreme of which would permit killing. Some would even go so far as to exclude killing for any transgthe social contracthow serious, but that extreme view is both unacceptable to most normal persons and subversive of the social cthe social contractconstitutionconstitution/a> --> is unconstitutional if if violates the natural, social, or state constitutions, and a practice under the social or state constitution is unconstitutional if it violates the natural constitution.

Consent

Some confusion arises from the use of the term "social contract", because it is not a commercial contract, requiring express, informed consent. That confusion was already recognized in the Founding Era, when some, such as James Madison, preferred to use the term "compact". The term is used, however, in sociobiology, as synonymous to symbiosis, and a 17th century political philosopher, Johannes Althusius, used that term. The use of the term "contract" by such political philosophers as John Locke may have been to recognize that among human beings symbiotic arrangements have a contractual nature.

To understand why it is correct to hold that a person consents to the rules of a society whose territory he enters or in which he remains beyond the age of majority, it is important to understand that while a society may be just a collection of people bound by a social compact, when it asserts dominion over a territory it becomes a state, and it is as a state that it adopts a constitution of government and makes laws binding on those present on its territory. Whenever anyone enters into the territory of a society with the consent of that society one is consenting to be bound by the rules of that society, even if it consists of a private household, provided that those rules are constitconstitutionthe sense of being consistent with all three levels of constitution. No one can consent to being bound by unconstitutional rules, but he does consent to being bound by constitutional rules. The only requirement is due notice that he has entered into the territory of a society, or that the territory on which he stands is asserted to be part of the dominion of the society. If he refuse to abide by constitutional rules of a society, then he is at war with that society.

Militia

The original meaning of the term militia, from the Latin, was not a body of armed men, but an activity, which is often translated as "military service". However, since those engaged in militia also did things like respond to disasters and perform other public services, such as law enforcement, it is more accurate to translate it as "defense activity". It was the common idiom of English in the 18th century to use the same word for an activity and for those engaged in it, and this was done with the word militia, to the point where this secondary meaning became more prominent than its original primary meaning as an activity. However, most of the leading Founders were Latin-literate and can be expected not to have used a Latin word in a way that was inconsistent with its meaning in Latin, and if we substitute the phrase "defense activity" for "militia" in most of the instances of its use, their meaning becomes clear. However, it is also important to realize that in that era people often did not distinguish between different meanings of a word as dictionary writers were to do, but to use words with several blended meanings that the reader or listener was expected to understand in context. Thus, a term like "militia" could mean for the Founders both defense activity, and those engaged in it, at the same time. In modern times, under the influence of dictionaries, beginning with Samuel Johnson's A Dictionary of the English Language, 1755, we tend to choose one of the several meanings a word might have, but it was not until Noah Webster's 1806 A Compendious Dictionary of the English Language that this influence began to become pervasive.

Properly understood in this way, the duties under the social contract are essentially synonymous with the militia duty, and jury duty can be understood as a specialized form of militia duty, the duty not just to defend one's own rights, but also the rights of others, under the principle that any infringement of the rights of any person is an infringement of the rights of all. This is reflected in the common law prerogative writs, such as quo warranto, habeas corpus, mandamus, prohibito, procedendo, scire facias, and certiorari, any of which could, originally, be sought by any person on behalf of any other, regardless of whether the petitioner was directly or personally injured.

Origins of rights

Different rights originate from different levels of constitution, as discussed above. Some of the main ones are:

Nature
Life
Limb (right not be be physically injured or tortured, or have one's health or comfort threatened)
Liberty
Acquisition, retention, and use of means to secure above rights (part of property right)
Right not to be required to do the impossible or scientifically irrational
Society
Property equity (right to reclaim property to which one has title, or the value thereof, beyond mere possession)
Presumption of nonauthority
Due process (includes due notice and fair hearing, both substantive and procedural, and all rights associated with juries)
Common law trust rights
Public decision by convention called by public notice and conducted by established rules of procedure
State
Denizenship (right to remain on or return to one's domicile)
Fair representation of different parts of the territory
Government
Citizenship (privilege to vote and hold office, access to voting and fair counts)
Means to remove misbehaving officials or suspend their actions, such as quo warranto and other prerogative writs
Getting reports on the activities and expenditures of officials
Compensation for taking of property (part of property right)

Thus, the property right is actually a bundle of rights, part of which are natural, and part social, in origin. It can also be governmental in origin, as with things like intellectual property, that is established by statute.

In his introduction in Congress of the proposed articles that became the Bill of Rights, James Madison made an important distinction:
Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.

He did not distinguish the rights arising from the society with dominion over a territory, but had the notion been introduced one suspects the Founders would have seized on it.

Distinction between public rights, privileges, and immunities

The U.S. Constitution uses the term "right", but as Madison explained in some of his later writings, the natural, social, and state rights, as broken out above, are rights against the actions of government, for which the term "immunity" is more accurate. Under this understanding, every immunity is a restriction on the delegated powers of government, and every delegated power a restriction on immunities. Together, they partition the space of public action, with immunities and powers being complements of each other. The rights created under the Constitution of government are then more accurately referred to as "privileges". All of these are public rights, to distinguished from the private rights that arise from things like contracts. The use of the phrase "privileges and immunities", used in the Constitution, or "privileges or immunities", used in the 14th Amendment, is therefore to be understood as a more precise way to express the legal concepts involved.

However, the terms "privileges" and "immunities" properly only have meaning after government is established. In the state of nature, before government, these rights exist only as claims, demands, or practices. In the state of society, or a state with a territory but not yet a government, they exist only as traditional concessions among individuals, or as unspoken private contracts, perhaps decidable by a court but enforceable only by custom and private voluntary action. It is only after government is established that they become legal claims, enforceable by official action.

Within government, there are different kinds and degrees of privileges. Those nondiscretionary privileges conferred by the constitution

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