SOCIAL COMPACT THEORY

An invention of political philosophers, the social contract or social compact theory was not meant as a historical account of the origin of government, but the theory was taken literally in America where governments were actually founded upon contract. The words "compact" and "contract" are synonymous and signify a voluntary agreement of the people to unite as a political community and to establish a government. The theory purports to explain why individuals should obey the law: each person, in a government that exists with the consent of the governed, freely and, in effect, continuously gives consent to the constitution of his community.

The theory hypothesizes a prepolitical state of nature in which people were governed only by the law of nature, free of human restraints. From the premise that man was born free, the deduction followed that he came into the world with God-given or natural rights. Born without the restraint of human laws, he had a right to possess liberty and to work for his own property. Born naked and stationless, he had a right to equality. Born with certain instincts and needs, he had a right to satisfy them—a right to the pursuit of happiness. These natural rights, as john dickinson declared in 1766, "are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power without taking our lives."

When people left the state of nature and compacted for government, the need to make their rights secure motivated them. alexander hamilton observed that "Civil liberty is only natural liberty modified and secured by the sanctions of civil society.…The origin of all civil government, justly established, must be a voluntary compact between the rulers and the ruled, and must be liable to such limitations as are necessary for the security of the absolute rights of the latter." The most detailed exposition of this theory was by john locke, the most brief and eloquent by thomas jefferson in the preamble of the declaration of independence. One of the self-evident truths in the latter is "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.…"

The compact theory of government colored the thought and action of Americans during the colonial period and through the period of constitution making. The new world actually seemed like a state of nature, and Americans did in fact compact with each other; the theory seemed to fit the circumstances under which American political and constitutional institutions grew. Our system developed as a self-conscious working out of some of the implications of the compact theory.

The related but distinct idea, so important in Puritan thought, that people covenant with each other to make a church for their ecclesiastical polity, was extended to their secular polity. Even before the founding of Virginia a Separatist leader asked, "What agreement must there be of men? For church governors there must be an agreement of the people or commonwealth." A half century before Locke's Second Treatise,thomas hooker, a founder of Connecticut, explained that in any relationship that involved authority there must be free agreement or consent. "This," he said, "appears in all covenants betwixt Prince and People, Husband and Wife, Master and Servant, and most palpable is the expression of this in all confederations and corporations … They should first freely engage themselves in such covenants.…"The first concrete application of the covenant theory to civil government was the Mayflower Compact (1620). The Pilgrims, putting theory into practice, solemnly did "covenant and combine … into a civil body politick," an experience multiplied over and again with the founding of numerous settlements in New England. (See fundamental orders of connecticut.)

The colonists also regarded their charters as compacts. As Hamilton said later, George III was "King of America, by virtue of a compact between us and the Kings of Great Britain." These colonies, Hamilton explained, were settled under charters granted by kings who "entered into covenants with us.…" Over a period of a century and a half, Americans became accustomed to the idea that government existed by consent of the governed, that the people created government, that they did it by written compact, and that the compact constituted their fundamental law. From practical experience as well as from revolutionary propaganda, Americans believed in the compact theory and they acted it out.

It was a useful tool, immediately at hand and lending historical and philosophical credibility, for destroying the old order and creating a new one. William Drayton, the chief justice of South Carolina, echoed a commonplace idea when he said that George III had "unkinged" himself by subverting the "constitution of this country, by breaking the original contract.…" The compact theory legitimated the right of revolution, as the Declaration of Independence made clear. Even before that declaration, colonial radicals contended that the Coercive Acts (see first continental congress) "have thrown us into a state of nature," and justified contracting for a new government. After Independence a town orator in Boston declared that the people had reclaimed the rights "attendant upon the original state of nature, with the opportunity of establishing a government for ourselves.…" The colonies became states by a practice that mirrored the theory; they drew up written constitutions, often phrased as compacts, and purposefully put formal statements of the compact theory into those documents. The massachusetts constitution of 1780 (still operative) declares: "The body politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people.…" A minister, Jonas Clark, said in a sermon that just government is founded in compact "and in compact alone." The new state constitution, he declared, was "a most sacred covenant or contract.…" The state constitutional convention that framed that constitution was devised to institutionalize the compact theory.

Although the articles of confederation do not formally state that theory, letters of the members of the Continental Congress that framed the Articles show that they regarded themselves as making a compact for the union of states, and the federalist #21 refers to "the social compact between the States.…" Similarly, at the Philadelphia constitutional convention of 1787, james madison, declared that the delegates had assembled to frame "a compact by which an authority was created paramount to the parties, and making laws for the government of them." george washington, on behalf of the "Federal Convention," when sending the new Constitution to the Congress of the Confederation for submission to the states, drew an analogy from compact theory: individuals left a state of nature by yielding up some liberty to preserve the rest, and the states surrendered some of their sovereignty to consolidate the union. Some of the states, when formally ratifying the new Constitution, considered themselves to be "entering into an explicit and solemn compact," as New Hampshire declared. Chief Justice john jay observed, in chisholm v. georgia (1793), that every state constitution "is a compact … and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves."

The compact theory answers one of the most profound questions of political philosophy: why do people submit to the compulsions of government? The answer is that when they established government they consented to its exercise of power and agreed to obey it if it secured their rights. The compact theory has been remarkably fecund. From government by consent it led to political democracy. It also led to constitutionalism as limited government, to a concept of a constitution as fundamental law, to constitutions as written documents, to the constitutional convention as a way of writing the document, to the right of revolution when the government is destructive of the ends of the compact, and to concepts of civil liberty and written bills of rights.

Leonard W. Levy
(1986)

Bibliography

Mc Laughlin, Andrew C. 1932 The Foundations of American Constitutionalism. New York: New York University Press.

Rossiter, Clinton 1953 Seedtime of the Republic: The Origin of the American Tradition of Political Liberty. New York: Harcourt, Brace.

Tate, Thad W. 1965 The Social Contract in America, 1774–1787: Revolutionary Theory as a Conservative Instrument. William and Mary Quarterly 22:375–391.

Wood, Gordon S. 1969 The Creation of the American Republic, 1776–1787. Chapel Hill: University of North Carolina Press.