Thursday, April 13, 2017

The Bill of Rights and Social Contract Theory

Guest Blogger

Jud Campbell

For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.

Professor Klarman has written another wonderful book—this time an extensive survey of the American Founding. The Framers’ Coup: The Making of the United States Constitution provides readers with a vivid sense not only of the political and ideological divisions of the era but also the Founders’ economic and social concerns, their personal alliances and rivalries, and their many flaws. A great strength of the book is Klarman’s decision to let historical figures speak for themselves, though his organization and analysis make the book accessible to a wide audience. I highly recommend it.

For my symposium contribution, I’ll focus on Klarman’s chapter on the Bill of Rights. Overall, it’s super—especially by emphasizing the prevalent attitude that the proposed amendments were inconsequential. Too much written on this topic is hagiographic, reading our modern glorification of the first ten amendments back onto the Founders.

Where I part with Klarman (among many others) is my view that engaging with social-contract theory is essential for comprehending Founding-Era debates about rights. This is a theme that I’m developing in other work, but here I’ll illustrate the point by defending a prominent Federalist argument that Klarman calls “hard to fathom”—namely, that amendments were unnecessary because state declarations of rights could constrain national power. My broader point, and one with which Klarman seems to agree, is that the Founders often thought very differently than we do about constitutional rights.

The basic history of the Bill of Rights will be familiar to many readers. The Constitution originally included only a few rights, like the criminal jury right in Article III, but failed to mention plenty of well-established others, like the free exercise of religion, the freedom of the press, and the civil jury right. And the enumeration of only some rights, Anti-Federalists warned, left these others particularly vulnerable. A more complete declaration of rights, they argued, should precede ratification.

Anti-Federalists didn’t quite prevail. But as various state conventions ratified the Constitution, some of them qualified their approvals by mentioning certain rights, like the freedoms of press and religion, while others (or minorities within those conventions) made proposals for amendments.

For the most part, these proposals fell on deaf ears in the Federalist-dominated First Congress. With great perseverance, however, James Madison held Federalists’ feet to the fire, ultimately obtaining a variety of constitutional amendments. But by then, Klarman points out, Anti-Federalists themselves had cooled on the prospect of enumerating individual rights. What they really wanted were structural reforms and the calling of another constitutional convention.

But why did so many Founders agree, at least after ratification, that the proposed amendments were “of little or no consequence,” as Lambert Cadwalader of New Jersey put it? Indeed, even Madison—the champion of amendments in 1789—had derided declarations of rights as mere “parchment barriers” just the year before.

Klarman provides a partial response, but the remainder of this essay fleshes out another explanation for the befuddling yet widespread indifference to Madison’s rights-enumerating project.
Today Americans typically think about constitutional rights as being created by the Constitution. In order to enjoy the protection of these rights, therefore, it is necessary to include them in the Constitution—usually explicitly, as with the rights of free exercise, free speech, and so forth, but sometimes implicitly, as with “substantive due process” rights. Either way, though, the ultimate source of constitutional rights is the Constitution itself.

But lots of Founders simply didn’t think that way. And a principal reason why was their immersion in a constitutional theory that we mostly relegate to political-science and philosophy departments: social-contract theory.

In essence, social-contract theory was a backward-looking thought experiment designed to justify, and to limit, governmental authority. The basic idea was straightforward. In order to understand the proper role of government, we can imagine a situation in which no government existed and then reconstruct the basic terms under which individuals would have unanimously agreed (in a “social contract”) to join together to form a political society—a body politic known as “the people.” Only after everyone had reached this unanimous agreement would the people then, under majority rule, form a system of government in a constitution.

Social-contract theory was ubiquitous in Founding-Era constitutional thought, even if sometimes hidden in plain sight. The very first sentence of the Constitution, for instance, is written in the language of social-contract theory. “In the Preamble,” William Findley of Pennsylvania recognized during the ratification controversy, “it is said, ‘We the People,’ and not ‘We the States,’ which therefore is a compact between individuals entering into society, and not between separate states enjoying independent power and delegating a portion of that power for their common benefit.”

The Founders widely thought that individuals entering into a social contract would have agreed that the body politic had to preserve natural liberty—the freedom that humans would enjoy in an imagined state of nature—and had to guarantee certain positive rights—“the equivalent every man receives, as a consideration for the rights he has surrendered,” as Theophilus Parsons described. These positive rights were rules about what the government had to do, like provide for trial by jury, and what the government could not do, like impose cruel and unusual punishments. Consequently, as Thomas Jefferson explained, rights included not only “unceded portions of right”—that is natural rights, like “freedom of religion”—but “but also “certain fences which experience has proved peculiarly efficacious against wrong, and rarely obstructive of right,” like “trial by jury, Habeas corpus laws, [and] free presses.”

And this is where we return to Founding-Era indifference about enumerating rights. For those who thought that individual rights were guaranteed in the social contract, it was unnecessary to enumerate them in a Constitution or declaration of rights. The rights already existed. That did not mean that declaring rights was worthless; enumeration, for instance, might facilitate the political and judicial defense of rights. But crucially, as historians have broadly recognized, enumeration was mostly a declaratory exercise. “A Bill of Rights,” George Nicholas explained at the ratification convention in Virginia, “is only an acknowledgement of the pre-existing claim to rights in the people. They belong to us as much as if they had been inserted in the Constitution.” The Ninth Amendment, with its reference to “other[ rights] retained by the people,” reflects the same idea.

In light of these principles, the Federalist denials of a need for a bill of rights made a good deal of sense. Klarman’s criticism of Roger Sherman’s dismissive attitude about enumerated federal rights thus misses the mark. “The state Declarations of Rights are not repealed by this Constitution, and being in force are sufficient,” Sherman insisted toward the end of the deliberations. “This was a surprising weak argument,” Klarman announces, adding that it is “hard to fathom” how state declarations of rights would offer any protection against federal abuses in light of the Supremacy Clause.

If we return to social-contract theory, however, Sherman’s argument makes a good deal of sense. The original source of political authority, after all, was the (imagined) unanimous consent of the people to the social contract. This is what James Wilson was talking about when he wrote, “The sovereign, when traced to his source, must be found in the man.” Unlike state bodies politic, however, the federal body politic was about to be formed through a delegation of sovereignty from state bodies politic, not through the presumed agreement of each and every individual. “[W]e are not working on the natural rights of men not yet gathered into society,” Edmund Randolph explained during the Convention, “but upon those rights, modified by society.” And this reveals why Sherman disclaimed any need for a federal bill of rights. State bodies politic obviously could not delegate authority to abridge individual rights when they themselves lacked authority to abridge those rights. The rights belonged to individuals, and state bodies politic could not give them away.

Plenty of other Federalists drew on social-contract theory to make the same argument. Individual rights were “already provided for by the State Constitutions,” Tench Coxe insisted, “and relating only to personal rights, they could not be mentioned in a contract among sovereign states.” Importantly, Coxe was not denying federal sovereignty by adopting the proto-Confederate position that the Constitution was simply a glorified treaty—a “compact under the style & title of a Constitution,” as Thomas Jefferson infamously declared in 1798. Rather, Coxe was restating the standard Federalist position that the Constitution would form a national body politic through a delegation of sovereignty rather than through an original social contract among individuals.

To be sure, Anti-Federalists had reasonable arguments on the other side. “This system, if it is possible for the people of America to accede to it, will be an original compact,” Brutus remarked, “and being the last, will, in the nature of things, vacate every former agreement inconsistent with it.” Or, as Federal Farmer put it, “The bills of rights, and the state constitutions, are fundamental compacts only between those who govern, and the people of the same state,” whereas if “the people of the United States make a federal constitution, which is a fundamental compact between them and their federal rulers,” then the federal government “cannot be bound to take notice of any other compact.” Indeed, if state declarations of rights truly limited federal power, Federal Farmer observed, then why had the Convention mentioned rights like habeas corpus and the criminal jury right?

In any event, my goal here is not to take historical sides. Rather, what I hope to have illustrated is the central importance of social-contract theory for comprehending Founding-Era debates about rights. And this, it seems to me, reinforces a central theme of Klarman’s book: Though we often feel a deep intergenerational connection to the Founders, these men had their own goals and interests, their own flaws, and their own ways of thinking. Indeed, those who wish to know the Founders better should read Klarman’s book.

Jud Campbell is Assistant Professor of Law at the University of Richmond School of Law. You can reach him by e-mail at jcampbe4 at

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