One of the most erroneous political ideas is the notion of the social contract. The idea is that the legitimacy of a government is based on a social contract between the people and the government. In America, the constitution is supposed to be our social contract. But since no such “social contract” has ever been an actual voluntary contract among “the people”, it cannot be said to have any genuine authority under any common sense standards of justice. None of us ever signed the document (and even when it was drafted, it was only signed by a tiny aristocracy of people). Rather, we are assumed to have implicitly “consented” to it merely for being born within the territory. This strikes me as incredibly unjust. A true contract requires explicit consent. However, the standard view of the social contract is that everyone implicitly agrees to it by simply living under a given government.
The idea of a contract that I never signed that binds me to the authority of the state from birth, is akin to slavery from birth. I never signed no stinking contract. How is it that I am bound by this document for merely being born within the territory? How is it that I am obligated to serve a particular band of men for merely being born within the territory? How can a document be self-enforcing? It cannot, it must be created and enforced by flesh and blood individual men. How can the law rule all on its own? It cannot. The rule of law is a concept meant to, or that at least functions to even without such intent, disguise what is really the rule of men. The state cannot be contractual. If such an institution truly is contractual, it ceases to be a state in any rational definition of the word.
The Lockean view of sovereignty essentially boils down to the idea that as soon as the constitutional contract is broken by the government, it is no longer binding and the government therefore no longer has sovereignty. In fact, without realising it, Locke throws a huge bone to anarchists, because no government in the history of mankind fits the criteria necessary for his social contract. He was indeed denounced by his detractors as being an anarchist, for they quite correctly realised that the implications of his theory of sovereignty would completely delegitimise all existing states. Under common sense standards of jurisprudence, and Lockean principles, the constitution literally is not a binding contract. Furthermore, even if we treat it as having once been binding, the government has long since reneged on its contractual obligations. Therefore, under the classical liberal theory of sovereignty, it (and the government that it spawned) has no legitimate authority.
What about the idea that the constitution gives us our rights? It does no such thing. Rights are natural. You have them regardless of wether or not the law recognises them. If the second amendment was not in the bill of rights, you would still have a right of self-defence. It would not be legally recognised, but you will still have that right. This is the Lockean-style view of natural rights. You have them by virtue of being a human being. Constitutions do not give you your rights, they can only legally recognise them. Rights do not come from governments or laws, they come from human nature itself. All the government can do at best is abstain from violating your rights. In the Lockean view, governments and laws may be instituted in the name of securing these rights, but they are not where they derive from.
Thomas Jefferson said it best: “A free people claim their rights as derived from the laws of nature, and not as the gift of their chief magistrate.”
From a practical standpoint, the constitution already has been shown to not work. It was defied almost from day one and the post-civil-war federal government, and especially the post WWI federal government, essentially has little to no resemblance to the document. The constitution already has failed, so I don’t see the logic in trying the exact same thing again. Clearly, the document can either be interpreted in a manner that implies the opposite of its original intent or meaning, or outright defied anyway. The document was flawed in the first place (not to mention that it was expansive in comparison to the document that preceded it, namely the AOC).
What about the content of the constitution? While it has been argued ad nauseum that its “original intent” (or, to take a somewhat more strong stance, the “original meaning” of the words in themselves) was to limit the government’s powers, the document itself contains plenty of “loopholes” and vague language that can easily be construed (and have been so construed) to grant expansive powers not intended or apparent within the plain language. The “general welfare” clause comes to mind most of all. It has been used to justify practically anything the government does, for “general welfare” is a loaded, subjective and arbitrary term. Who’s welfare, and what exactly is welfare? Who will define this for us? “The supreme court”, you answer? What kind of limit on government is this, that it may define its own powers arbitrarily and at whim?
Not only can the constitution not work and has been empirically shown to not have worked, but it cannot be ethically justified to begin with.
Unit Two
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