This post continues the argument I started in my post on natural rights, All Shades of Gray are on the Wrong Side of Right. Having first established that our rights are given to us by our Creator and are, therefore, equal and inalienable (i.e. they exist before and outside of society), I now continue by expounding on our founders understanding of the social contract/compact.
The idea is simple: if we are created with equal, inalienable rights which exist before and outside of society, and that morality is established according to how well we respect and preserve the God-given rights of others, we then recognize that there will always be those who reject this understanding and seek to trample the rights of others for personal gain, thus placing everyone in a state of war against these people; or, even if they accept this general understanding, through a misplaced desire to “do good,” will still seek to trample these rights. From this awareness of the reality of human nature, people willingly agree to live according to a known set of rules by which they agree to limit the exercise of their natural rights so as to help each other protect and preserve the greatest possible extent of their natural rights. This mutually agreed upon set of rules is otherwise known as the rule of law and the system by which it is administered and enforced is known as government. The collection of people living by these rules is known as a commonwealth, and in a broader, more general sense, as society.
Some basic restrictions apply to this formation of a commonwealth. First, it must be recognized that all people are born equal in their rights that cannot be taken nor surrendered – not even willingly. Second, if we have no right to take or give away our rights, then we cannot give or transfer any authority to do so to another person or entity. This applies to whatever agreement is created by the people agreeing to live by the set of laws they establish to protect their rights. In other words, the government can never claim a right or power that the lowest member of the commonwealth doesn’t also possess. In addition, people can only agree to abide by laws that protect their natural rights and the natural rights of their neighbors. In this sense, government cannot justly be used to get around or go over these restrictions without breaking the mutual agreement between every member of the commonwealth. Any act of legislation which tramples this “natural law” is an attempting to claim a right or power that no one member of the commonwealth can claim because they do not possess it, so that act of legislation is not a law but an act of tyranny against the rights of those on whom it is intended to act. Therefore, any to be considered a valid law, an act of legislation under this agreement must be in agreement with natural law, as understood to be that which preserves and protects natural rights and which applies equally to every member of the commonwealth. This general understanding delineates the purpose and limits of the law within which any and all legislation must be confined.
Inherent in this understanding is the implication that, if every member of the commonwealth agrees to abide by the terms of their agreement, they are entitled to certain protections against individual violations of their natural rights and that every other member of the commonwealth takes on a duty to assist in providing this protection as part of this agreement. As each of us has a natural right to willingly contract with others so long as we do not violate a natural law (i.e. we cannot demand, take or give away our natural rights or those of others), this agreement to live together in a commonwealth is known as a contract – a social contract. Typically, all of this is outlined in a written constitution. And here is where we find a crucial distinction between the American notion of the social contract and that of the rest of the world.
In my previous post, I explained that, at the time of the American and French Revolutions, there were two general schools of thought as to the source of our natural rights: God or man and society (with society being treated as a living entity). These two different understandings carry over to the different understandings of the social contract. In Europe, where the later concept of man-made or human rights prevailed, a contract wasn’t respected with the same sense of duty or commitment as in the United States where the belief that our rights come from God prevailed. In Europe, the social contract could more easily be broken as it was understood to be a mere agreement among men. But in America, where our founders saw our society as being more of a compact between every member of society and God, the duty to keep the terms of the social contract were much stronger as they included the individual’s commitment to God. In this sense, our constitution is better understood as a social compact, not a contract. This is a crucial difference that we have lost in our modern understanding of this issue, but a look at this difference should help us understand it:
Definition of CONTRACT
1a : a binding agreement between two or more persons or parties; especially : one legally enforceable
Definition of COVENANT (COMPACT)
1: a usually formal, solemn, and binding agreement : compact
2a : a written agreement or promise usually under seal between two or more parties especially for the performance of some action
Herein lays the essence of a quote I often cite:
“Men, in a word, must necessarily be controlled either by a power within them or by a power without them; either by the Word of God or by the strong arm of man; either by the Bible or by the bayonet.”
— Robert Winthrop, Speaker of the U. S. House,
For those in the French Revolution, people had to be forced to do what was considered right by the bayonet. But for the founders, every individual did so of their own free will because they knew it was right because of their belief in God.
Now, let’s go back and look at some of the key elements of the social compact – as our founders understood them starting with a clear and powerful statement of their general understanding of the concept:
It has been thought a considerable advance towards establishing the principles of Freedom, to say, that government is a compact between those who govern and those that are governed: but this cannot be true, because it is putting the effect before the cause; for as man must have existed before governments existed, there necessarily was a time when governments did not exist, and consequently there could originally exist no governors to form such a compact with. The fact therefore must be, that the individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.
No one can agree to give or take away a natural right; nor to set themselves above another; nor create a government that can then proceed to do that which they cannot:
For all men being originally equals, no one by birth could have a right to set up his own family in perpetual preference to all others for ever.
The power of the legislative being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.
This agreement, or social compact should be established so that all men can know it, and it should be such that it is not subject to constant change due to the arbitrary whim of those in charge (as in Revolutionary France and Europe in general due to their view of the man-made contract as opposed to the founders’ understanding of a compact involving God):
Freedom of men under government is to have a standing rule to live by, common to every one of that society and made by the legislative power vested in it and not to be subject to the inconstant, uncertain, arbitrary will of another man.
A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.
And, should any person or group of people seize control over the mechanisms of a commonwealth’s government, or the members of the commonwealth become so immoral as to disregard their duty to God and each other that they seek to use the authority of government against their fellow citizens, the compact is violated and every individual is justified in reclaiming the full extent of their individual natural rights – including the natural right to alter or abolish the compact they created:
… whenever the Legislators endeavour to take away, and destroy the Property of the People, or to reduce them to Slavery under Arbitrary Power, they put themselves into a state of War with the People, who are thereupon absolved from any farther Obedience, and are left to the common refuge which God hath provided for all men against force and violence. … [Power then] devolves to the People, who have a Right to resume their original Liberty, and, by the Establishment of a new Legislative (such as they shall think fit) provide for their own Safety and Security, which is the end for which they are in Society.
Finally, we need to understand something else our founders warned us about, a factual reality of human nature that exhibited itself in Revolutionary France and which our founders fought against while they were still alive but – unfortunately – has since crept into our own society:
The trade of governing has always been monopolized by the most ignorant and the most rascally individuals of mankind.
An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates his duty, he establishes a precedent that will reach to himself.
There was a time when the majority of Americans knew, understood and agreed with this and – though we had our problems – we became a great nation and society. Now that we have more generally accepted the European, man-centered understanding of things, look where we are: an “American Europe.”