Sparks Commentary: How did Locke’s social contract theory influence the Constitution?

“Bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation.”

– James Madison, in the Federalist Papers (Federalist No. 44)

David Hume criticized the idea that all governments began by a “social contract” …

The philosopher David Hume once criticized social contract theory for saying that all governments began by an actual social contract (see my previous blog post for the details of this quote). In his “Essays, Moral, Political, Literary,” for example, he said that this account was “not justified by history or experience, in any age or country of the world.” (Source: Part II, Essay XII – entitled “Of the Original Contract”) Some of Hume's criticisms of the theory of social contracts may be valid (including this one), and the idea that all governments actually began in this way is indeed unsupported by the historical evidence, as Hume said. Many social contract theorists have actually agreed with this much, and have modified their theories accordingly to accommodate this criticism. They say that the “social contract theory” is still a workable model even without this claim that governments actually began in this way.

David Hume

… but the Constitution is itself a “social contract”

But regardless of the historical origins of government (which I have discussed earlier), one might note with some satisfaction that some “social contracts” really have been enacted between government and their people, and that the Constitution itself was one of these “social contracts” (even if it was after Hume’s time, which it was). People agreed to obey the laws by creating a government that had the power to make them, and which had the power to punish violations of those laws via some particular clauses in the document. The people also agreed to pay taxes, and to do a few other things which I will not elaborate upon in this post. In return, the government agreed (not always very truthfully) to refrain from doing certain things, and to consider itself in violation of these laws anytime that it did them anyway. (Even government is not above the laws, as the Founding Fathers made clear.) Our Constitution was thus an application of social contract theory, which came from the writings of people like John Locke.

John Locke

Some have questioned whether Locke was an influence on the Constitution …

Some have questioned today whether John Locke had much of an influence on the Constitution. The political scientist Donald Lutz, for example, said that “Locke is profound when it comes to the bases for establishing a government and for opposing tyranny, but has little to say about institutional design. Therefore his influence most properly lies in justifying the revolution and the right of Americans to write their own constitutions rather than in the design of any constitution, state or national. Locke's influence has been exaggerated in the latter regard, and finding him hidden in passages of the U.S. Constitution is an exercise that requires more evidence than has hitherto ever been provided.”(Source: The American Political Science Review, Vol. 78, No. 1, March 1984, p. 192-193) I have a lot of respect for Donald Lutz, I should make clear, and have actually quoted him elsewhere in this series as an authority on what influenced the Founding Fathers. But I nonetheless must disagree with him on this particular point, and hold that Locke influenced particular passages in the Constitution. In fairness to Mr. Lutz, I should acknowledge that he did not question that Locke was influential on the Founding Fathers, even in this quote – indeed, he believed that Locke was quoted by the Founding Fathers more than any other thinker, besides Montesquieu or William Blackstone. But I will endeavor to show some evidence here that Locke influenced our Constitution, and that his influence can be found in particular passages within the document.

John Locke

… but his doctrine about the “consent of the people” is shown in various clauses about elections

In a previous post, I mentioned how, in his famous “Second Treatise on Government,” John Locke discussed his doctrine of the “consent of the people” (Source: Chapter VIII, Section 112). Later in the same work, John Locke wrote that “When the government is dissolved, the people are at liberty to provide for themselves, by erecting a new legislative, differing from the other, by the change of persons, or form, or both, as they shall find it most for their safety and good.” (Source: Chapter XIX, Section 220) The “erecting [of] a new legislative” is shown in particular passages in the U. S. Constitution about the election of members of Congress. For example, the original Constitution said that “The House of Representatives shall be composed of members chosen every second year by the people of the several States” (Source: Article 1, Section 2, Paragraph 1). The other clauses in the original Constitution about elections, although less direct, ensure that the government of the United States will have the “consent of the people” (in John Locke's words); and thus show the influence of John Locke.

United States Capitol

Locke's views about “no taxation without representation” are evident in clauses about taxation

Regarding another part of the social contract, I mentioned in a previous post how Locke also believed that government had the right to tax, and that government could sometimes take away people's private property at the times that it had a legitimate taxing power. (For more information about this, see my other post on this subject.) In his “Second Treatise on Government,” for example, he wrote that “It is true, governments cannot be supported without great charge, and it is fit every one who enjoys his share of the protection, should pay out of his estate his proportion for the maintenance of it. But still it must be with his own consent, i.e. the consent of the majority, giving it either by themselves, or their representatives chosen by them.” (Source: Chapter XI, Section 140) This doctrine found its way into the Constitution, I might add here, by ensuring that all taxation was done by a body that was elected by “the people” – namely, the Congress. Specifically, the Constitution says that “The Congress shall have the power: To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.” (Source: Article 1, Section 8, Heading and Paragraph 1) I might note briefly here that both houses of Congress are elected by the people now, so Locke's doctrine of “no taxation without representation” (in the words of a famous paraphrase) found its way into the Constitution via these passages; showing some further influence.

United States Capitol

In the Constitution, the government and the people made a written agreement with each other …

Most importantly, the government agreed to protect the people's “unalienable rights” to life and liberty, and some of their rights to property. (It might take away at least some of their property by way of taxation, as I discussed in a previous post; but I won't go into that subject further here, since I have discussed it extensively in this previous post.) The government actually agreed that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (Source: Eighth Amendment). It said that no person shall be “compelled in any criminal case to be a witness against himself” (Source: Fifth Amendment). It said that “No bill of attainder or ex post facto law shall be passed.” (Source: Article 1, Section 9, Paragraph 3) Before proceeding further, I should clarify that an “ex post facto” law is one that declares something that you did on a prior occasion to be “illegal,” even though it was perfectly legal at the time – thus making it illegal only “after the fact” (or in the Latin phrase, “ex post facto”). Another type of law that would fall into this category would be one that increased the punishment for a crime after the fact, to a greater punishment that was not authorized when the act was committed. A “bill of attainder” is a law passed by a legislature that declares a particular person (or persons) guilty of a crime and imposes a punishment, often without a trial – something that would usurp the proper power of the judicial branch, if it were allowed to be implemented (a truly frightening power, to the Founding Fathers and us).

James Madison

… which James Madison referred to as a “social compact”

Commenting on these two particular kinds of unconstitutional laws in the Federalist Papers, James Madison wrote that “Bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation.” (Source: Federalist No. 44) This is one of two times in the Federalist Papers that the phrase “social compact” is used (the other being in Federalist No. 21), although the exact phrase “social contract” is not found in the text of either the Federalist Papers or the “Second Treatise on Government.” Rather, both sources use the word “compact” instead, which James Madison includes as part of the phrase “social compact.”

James Madison

This agreement became the “supreme law of the land” for the United States

This “social compact” – or “social contract,” in our modern terminology – went both ways (as evidenced by these quotations); and was sealed by a clause later on in the original Constitution. Specifically, this clause said that “This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.” (Source: Article 6, Section 2) This contract was thus binding on all parties concerned, and so was also one of the only social contracts ever to be made so explicitly – with such specific terms of agreement that the people would not often have to guess about what they were, because most of them were conveniently written down on paper in this Constitution.

United States Constitution

Why some generations may have had the right to agree to permanent constitutions for others …

And regarding the oft-noted criticism from David Hume about the “consent of the fathers to bind their children” (as in a multi-generational social contract like the Constitution), some situations may exist where such consent would be invalid, since it has not been obtained directly from the generation that is currently living under it. But a few arguments may be helpful on this score, such as the ones that I will give here: One, the Constitution itself would seem flexible enough to accommodate many of the changes desired by later generations – at least under certain conditions – and that they may always revoke their consent towards particular individuals by refusing to vote for them in the next round of elections. Thus, this consent is always renewed by a regular process of permanent elections that are guaranteed by the Constitution. Only one part of the Constitution is permanently immune to constitutional amendments anyway, which is the part about “equal suffrage in the Senate” (Source: Article 5 of the Constitution). Everything else, I should make clear, is subject to change from constitutional amendments; even if this change is hard to effect (which it is).

David Hume

… and thus consent for their descendants

Second, it would seem that any true “security” for these elections requires them to be permanently guaranteed - or at least, hard to discard - for every generation that follows after, and thus requires a permanent social contract to protect it perpetually. If one generation can never “bind” the next one (as some radicals have suggested), then the greatest danger to be feared might be that of effectively allowing one generation to ever discontinue these elections, in a way that could unintentionally become permanent for their descendants. Better to “consent” for our children that they can indeed retain their consent, than to allow anyone to risk another generation's right to give that consent themselves in elections (however unknowingly or inadvertently they might choose to run this risk). The proper question here would thus seem not to be whether there can be a legitimate multi-generational “social contract,” but what kind of such a social contract it must be. To ensure that all future generations will have the right either to consent or not consent, we must have some things be relatively untouchable by future (or current) generations, even if this constitutes an exception to a general principle that would otherwise be upheld here. In short, it must be that way.

Constitutional Convention, 1787

One thing that Locke and Hume agreed upon was the need for the “consent of the people”

David Hume posed a formidable challenge to social contract theory in this way, by challenging its historical account of government (and a few other things about social contract theory). He also challenged the idea that only a government with the “consent of the people” can ever be legitimate, believing that it could be legitimate even without this consent (even if this would not be ideal). But one thing that both Hume and Locke agreed upon was that the “consent of the people” was the best possible foundation for government, and that the protection of the people's rights was the best and most proper function of government. Whether or not governments actually began as a true “social contract” between themselves and the people (even of the implied kind), the United States Constitution really was a social contract between the American government and the American people that has endured the test of time – and quite possibly, the first one that was ever written down (for an entire nation, at least) in the history of the world.

Footnote to this blog post:

The Constitution's social contract never attempted to list all of our rights within the document (or anywhere else, for that matter), but did attempt to list some of our rights. To protect the ones that were not written down, the Bill of Rights said that “The enumeration [or “listing”] in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (Source: Ninth Amendment)

In other words, rights may not be withheld merely because they aren't mentioned in the Constitution. (An important thing to throw in, when you're trying to form a social contract that protects as many rights as possible.)

If you liked this post, you might also like:

David Hume criticized social contract theory severely …

How David Hume influenced “The Wealth of Nations”

The basics of the “state of nature” and the social contract

How Locke influenced the Declaration of Independence

In defense of John Locke: The need for private property

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