Navigating the Rubicon: Constitutionalism and the Inevitability of the Social Contract, 51 J. Marshall L. Rev. 1 (2017)

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Navigating the Rubicon: Constitutionalism and the Inevitability of Navigating the Rubicon: Constitutionalism and the Inevitability of

the Social Contract, 51 J. Marshall L. Rev. 1 (2017) the Social Contract, 51 J. Marshall L. Rev. 1 (2017)

Lillian M. Spiess

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NAVIGATING THE RUBICON:

CONSTITUTIONALISM AND THE

INEVITABILITY OF THE SOCIAL

CONTRACT

BY LILLIAN M. SPIESS, MA, JD, LLM*

I.! INTRODUCTION .................................................................... 1!

A.! Social Contract Theory and the American

Constitution: Hobbes and Locke ................................. 3!

B.! Consent, Consensus and Legitimacy: The People ..... 6!

I. INTRODUCTION

Proponents advocating the theory of founding moments in

American constitutional development advocate, “[T]he real

Constitution is a set of principles adopted by ‘We, the People’ at

extraordinary ‘moments’ of intense constitutional participation and

deliberation, with or without changes in the constitutional text.”

Although a compelling position, I would propose a contrary one:

there are no real founding moments; rather any “constitutional”

* Professor Spiess is currently in private practice focusing on the areas of

employment, trust and estates, tax, and commercial matters. She is also an

adjunct professor at Touro Law Center. She is formerly the Assistant Director

of Academic Development and Bar Programs at Touro Law Center. She has also

taught at Hofstra University School of Law and St. John’s University (Dept. of

Gov’t & Politics). Her practice experience includes her association with Willkie

Farr & Gallagher LLP (Employee Benefits/Executive Compensation) and Weil

Gotshal & Manges LLP (Tax). Professor Spiess represented corporate clients in

both public and private mergers, including cross-border acquisitions and

investments while regularly advising clients on employment, compensation,

employee benefit, pension, and insurance matters. Additionally, she served as

a court attorney for the N.Y.S. Supreme Court, Appellate Division (First

Department). Professor Spiess also has extensive training in mediating

commercial/employment disputes. Notably, she successfully mediated disputes

between Storm Sandy claimants and commercial insurers on behalf of New York

State Department of Financial Services and the United States District Court,

Eastern District.

Professor Spiess received her LL.M. (Taxation), New York University School

of Law; her J.D., magna cum laude, from Touro Law Center; and earned her

MA and BA, summa cum laude, (Government & Politics), at St. John's

University. Professor Spiess wishes to thank the editors of the John Marshall

Law Review for their invaluable assistance in bringing this article to

publication. She also wishes to thank her colleagues here at Touro Law Center,

Professors Dan Subotnik and Peter Zablotsky, and Irene Crisci, Interim

Director and Head of Public Service, Gould Law Library, for their insight,

candor and support in the preparation of this paper. Finally, this paper was first

presented at the Midwest Political Science Conference, Chicago IL, on April 8,

2017 as part of the panel discussion, “Theories of Law and Jurisprudence Over

Time”.

1. See Michael W. McConnell, The Forgotten Constitutional Moment, 11

CONST. COMM. 115 (1994) (commenting on the theory as espoused by BRUCE

ACKERMAN, WE THE PEOPLE, FOUNDATIONS (1991)).

2 The John Marshall Law Review [51:1

change occurring in the United States is a reflection of the

anticipated development of the social contract between the

government and its people. These changes ultimately start at a

more fundamental level – with the individual - and then coalesce on

the broader societal plane. But, because each individual has a

totally unique view of any given set of facts or situation at a

particular moment in time, to say that founding moments are

triggered by intense constitutional participation and deliberation by

the “People” would assume pure singularity of purpose by the same

“People” which is probably, at best, elusive and unattainable.

The power for constitutional change is imbued in the document

itself. It is broadly written so as to foster and support those

anticipated societal changes that must ultimately evolve in time.

The language of the document does not become irrelevant. Judicial

decisions and legislative acts are the touchstones of this societal

evolution. For example, the period between the 1930s and 1960s,

culminating in the Civil Rights Act of 1964, clearly demonstrates

the easing, although not the elimination, of racial intolerance and

inequality here in the United States.

This was not a founding

moment - but, rather, the expected pragmatic result to an existing

untenable legal and social position, with Brown v. Board of

Education as a mere part of that evolution.

Further, some theorists

postulate that constitutional shifts are not linked to any one

moment, that such shifts are merely part of a “conversation”

between the government and its people.

Although attractive, this

is not a wholly satisfying position as any conversation, however

brief and fleeting, must have some initial basis for coming into

existence – even if it is violent in nature and purpose. Thus, it

follows that violence perpetrated by certain members of society is

precipitated by the inevitable need for identity arising out of the

social contract itself. However, total success of any group over time

is deceptive due to the fractured nature of any “cohesive” position

2. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (enacted July 2,

1964, as amended).

3. Brown v. Board of Edu., 347 U.S. 483 (1954).

4. See Simone Chambers, Contract or Conversation, Theoretical Lessons

from the Canadian Constitutional Crisis, 26 POLITICS AND SOCIETY 143 (1998);

see, e.g., Adam Winkler, A Revolution Too Soon: Woman Suffragists and the

“Living Constitution”, 76 N.Y.U. L. REV. 1456 (2001) (claiming that women

suffragists were important innovators of modern constitutional thought); Tracy

E. Higgins, Democracy and Feminism, 110 HARV. L. REV. 1657 (1997)

(discussing the contribution of feminist legal theory to constitutional

interpretation); see also Anita L. Allen, Social Contract Theory in American

Case Law, 51 FLA. L. REV. 1 (1999) (survey of judicial decisions integrating

specific and explicit use of social contract theory). But see Jaren Wilkerson,

Disappearing Together? American Federalism and Social Contract Theory, 17

U. PA. J. CONST. L. 569 (2014) (advocating for social change on the local rather

the federal level in order to protect the principles of American federalism and

social contact).

2017] Constitutionalism and the Inevitability of the Social Contract 3

held by a group of individuals who each think and process in a

singular way. As one theorist stated, “Governments may fall,

societies will persist…A new Caesar will cross the Rubicon, Italy

will remain.”

To say that these are founding moments or extra-

Constitutional events, undercuts accountability and relevance for

those members of society who may see themselves as outside the

fray resulting in disenfranchisement and disconnection. Thus – the

legitimacy crises and

power struggles here in the United States are really just part of

“business as usual” and are to be expected and, in most cases,

probably desired.

A. Social Contract Theory and the American

Constitution: Hobbes and Locke

Social contract theory can be defined as one which “grounds the

legitimacy of political authority and the obligations of rulers and

subjects on a premised contract or contracts relating to these

matters.”

It is without argument that the compelling philosophical

perspective of both Thomas Hobbes and John Locke regarding this

social contract between the government and the governed held

substantial sway over the drafters of the United States

Constitution. Specifically, “We the People” give up our natural

liberty and “put on the bonds of civil society…to join and unite into

a community for [the] comfortable, safe and peaceable living

amongst another in a secure enjoyment of [our] properties, and a

greater security against any that are not of it.”

In Hobbes’ seminal work, The Leviathan, written during

England’s civil war as a commentary for peace in which the passions

of the individual are subordinated to civil authority which, in turn,

provides for the greater good, he writes:

A Common-wealth is said to be Instituted, when a Multitude of men

do Agree and Covenant, every one, with every one, that to whatsoever

Men, or Assembly of Men, shall be given by the major part, the Right

to Present the Person of them all, that is to say, to be their

Representative); every one as well as be that Voted for it, as he that

Voted against it, shall Authorize all the Actions and Judgments of

5. ROBERT ARDREY, THE SOCIAL CONTRACT, A PERSONAL INQUIRY INTO THE

EVOLUTIONARY SOURCES OF ORDER AND DISORDER 294 (1970).

6. See MICHAEL LESSNOFF, SOCIAL CONTRACT THEORY 3 (Michael Lessnoff,

ed., New York University Press 1990) (noting that political theorist John Rawls

has revived social contract theory to include the non-traditional approach of

incorporating social justice); ARDREY, supra note 5, at 294.

7. John Locke, Second Treatise of Government, in SOCIAL CONTRACT THEORY

97 (Michael Lessnoff, ed., New York University Press 1990).

4 The John Marshall Law Review [51:1

that Man, or Assembly of men, in the same manner, as if they were

his own, to the end, to live peaceably amongst themselves, and be

protected against other men.

For Hobbes, even the dissenters – who voluntarily entered into

the Common-wealth with the rest - have tacitly agreed to be bound

and stand together with the majority.

Anything short of such

agreement cuts against the core understanding that initially

brought the Common-wealth into existence. Specifically, Hobbes

states, “what the major part ordayne:

and if refuse to stand thereto, or make Protestation against any of

their Decrees, he does contrary to his Covenant, and therefore

unjustly.”

Hobbes, however, notably observes that at those times in a

Common-wealth when a false doctrine has been “negligently” or

“unskillfully” decreed by those “Governours” and “Teachers”, such a

doctrine generally received and found to be offensive, and “for those

men remissely governed, that they dare take up Armes, to defend

or introduce an Opinion…[i]t belongeth to him that hath the

Sovereign Power, to be Judge, or constitute all Judges of Opinions

and Doctrines, as a thing necessary for Peace; thereby to prevent

Discord and Civill Warre.”

John Locke, in his Second Treatise of Government, continues

the Hobbesian theme and explains the deliberate undertaking by

individuals to come together as one unified whole, subject to the

transcendent governmental authority. Locke states:

Wherever, therefore, any number of men are so united into one

society, as to quit every one of his executive power of the law of

nature, and to resign it to the public, there, and only there is a

political, or civil society. And this is done wherever any number of

men in the state of nature, enter into society to make one people, one

body politic, under one supreme government, or else any one joins

himself to, and incorporates with, any government already made.

For Locke, the driving force for leaving the state of nature

where the individual is his absolute monarch and entering into a

community is for the “mutual preservation of their lives, liberties

8. Id.; THOMAS HOBBES, THE LEVIATHAN 90 (Promethus Books 1988) (1651);

see also RICHARD ASHCRAFT, REVOLUTIONARY POLITICS & LOCKE’S TWO

TREATISE OF GOVERNMENT 570-71 (1986) (opining that Hobbesian concepts of

“social contract” and the “state of nature” were associated with particular

socioeconomic groups and were successful weapons to be employed against

radicalism in the latter half of the seventeen century).

9. HOBBES, supra note 8, at 89.

10. Id. at 92.

11. Id. at 93.

12. Locke, supra note 7, at 96.

2017] Constitutionalism and the Inevitability of the Social Contract 5

and estates” which Locke calls “property.”

Locke notes that consent makes one a member of any

commonwealth. Like Hobbes, tacit consent or agreement is possible

if the individual possesses property or reaps the benefit of any

government and in exchange for the obligation to obey the law.

Locke also provides that in the commonwealth when

controversies arise and redress is to be made, such authority to

decide such controversies will vest in a judge – either in the form of

the legislature or in magistrates appointed by it.

But – when the

controversy exists between the government and the people, Lock

provides:

[when the] law is silent or doubtful, or of great consequence, …the

proper umpire in such a case should be the body of the people, for in

cases where the [government] hath a trust reposed in [it] and is

dispensed from the common ordinary rules of the law; there, if any

men find themselves aggrieved, and think the [government] acts

contrary to or beyond that trust, who so proper to just as the body of

the people, who first lodged that trust in [it]….

The language of the Preamble of the United States

Constitution reflects the Lockean notion of social contract - - that it

is the People that move from the state of nature and seek the

protection of the community (or Hobbes’s commonwealth) in pursuit

of order and law that leads to justice and happiness

for present

and future generations.

The Preamble states:

We the People, of the United States, in Order to form a more perfect

Union, establish justice, insure domestic Tranquility, provide for the

common defence, promote the general Welfare, and secure the

Blessings of Liberty to ourselves and our Posterity, do ordain and

establish this Constitution for the United States of America.

As Justice Wilson, in Chisholm v. Georgia, stated, “With the

strictest propriety, therefore, classical and political, our national

scene opens with the most magnificent object which the nation could

present. ‘The PEOPLE of the United States’ are the first personages

13. Id. at 101.

14. Id. at 99. “[E]very man that hath any possessions, or enjoyment of any

part of the dominions of any government, doth thereby give his tacit consent,

and is a far forth obliged to obedience to the law of that government during such

enjoyment as any one under it . . . ” Id.

15. Id. at 96.

16. Id. at 107.

17. See id. at 101 (illustrating for Locke that would be the preservation of

“property”).

18. See JOSHUA B. STEIN, COMMENTARY ON THE CONSTITUTION FROM PLATO

TO ROUSSEAU 236 (2011).

19. U.S. CONST., pmbl.

6 The John Marshall Law Review [51:1

introduced.”

In addition, of particular note, is the use of word “ordain.”

The

deliberate use of this word by the drafters seems to suggest that the

People of the United States decree as their destiny their exit from

the state of nature (and their divestiture from the unsatisfactory

Articles of Confederation) to create a new contract with the

government until such time that the government acts contrary to

the People’s trust. It is then that the People may rightfully dissolve

the very government which they established.

B. Consent, Consensus and Legitimacy: The People

Social contract theory posits that individuals, i.e., the People,

enter into a community, either by express consent or tacit

agreement, in exchange for the protections and security offered by

same so that the individuals within that community can achieve

happiness and peacefulness.

Locke was clear that such participation in society is an

affirmative choice: “Nothing can make any man so, but his actually

entering into [society] by positive engagement, and express promise

and compact. This is that which I think concerning the beginning of

political societies, and their consent which makes a member of any

commonwealth.”

But – what are the implications of express consent or tacit

agreement; specifically, as a collective unit – to what have the

governed consented?

As Justice Wilson, in Chisholm, stated, “[I]n my judgment, the

basis of sound and genuine jurisprudence; laws derived from the

pure source of equality and justice must be founded on the

CONSENT of those whose obedience they require. The sovereign,

when traced to his source, must be found in the man.”

20. Chisholm v. Georgia, 2 U.S.419, 463 (1793).

21. Id.; see Dan Himmelfarb, The Preamble in Constitutional Interpretation,

2 SETON HALL CONST. L.J. 127, 132 (1991-92); see also Craig M. Lawson, The

Literary Force of the Preamble, 39 MERCER L. REV. 879 (1987-88) (describing

the dynamic tension arising from the artful placement of phrasing); see also

Robert J. Peaslee, Our National Constitution: The Preamble, 9 B.U. L. REV. 2,

18 (1929) (discussing historical underpinnings of the Preamble and

responsibility of individuals under the Constitution, “Divided though

responsibility is among myriads of individuals, no one’s share is greater or less

than that of any other. To each an equal portion is given. Accept it then not only

willingly, but proudly.”).

22. Locke, supra note 7, at 105-06. Theoretically, the federal government

and its social contract with the governed could be dissolved by constitutional

amendment; U.S. CONST. art. V.

23. Locke, supra note 7, at 100; see also ALEXIS DE TOCQUEVILLE,

DEMOCRACY IN AMERICA, THAT AMERICANS COMBAT INDIVIDUALISM BY FREE

INSTITUTIONS 194 (Richard D. Heffner, ed., Penguin Putnam Inc. 1984).

24. Chisholm, 2 U.S. at 458. (emphasis in the original); see also West

2017] Constitutionalism and the Inevitability of the Social Contract 7

If the pure source of equality and justice is founded on the

consent of those whose obedience they require, there is a

pronounced difficulty in determining what is consensus and the

difficulty of achieving same. Specifically, individual realities as to

what is desired or needed are as varied as the individuals

themselves. So – how is the social contract established and, then

amended, if the needs and wants of the governed change? When is

change desired? How is that desire measured? How is that desire

legitimized?

Modern consensus building theory and practice may be

instructive in serving as a paradigm for measuring social contract

legitimacy under our Constitution. The major premises for

examination include:

• Interdependence among the stakeholders is critical;

individual success is diminished when compared to

collaborative success and, thus, serves as an incentive for

collaboration and cooperation among group members. If

satisfaction of individual interests can be attained

without the group, then individual interests will prevail.

• Participants must constructively deal with their

differences; differences in values, needs, and interests

must be recognized, worked with and respected. “Good-

faith" participation by stakeholders is required because

destructive attempts to undermine a party's differing

interests will likely cause the process to break down.

• Decisions must be jointly owned by the group.

Participants in the consensus-building process must

agree on the final decisions and be willing to implement

those decisions themselves.

• Consensus building or collaboration is a process; to be

successful, the group must be allowed time and flexibility

to solve a problem. If the collaborative process is

successful, new solutions emerge that no single party

could have envisioned or implemented on their own.

Virginia State Bd. Of Educ. v. Barnette, 319 U.S 624, 641 (1943).

There is no mysticism in the American concept of the State or of the

nature or origin of its authority. We set up government by consent of the

governed, and the Bill of Rights denies those in power any legal

opportunity to coerce that consent. Authority here is to be controlled by

public opinion, not public opinion by authority.

West Virginia State Bd. Of Educ., 319 U.S. at 641.

25. BARBARA GRAY, COLLABORATING: FINDING COMMON GROUND FOR

MULTIPARTY PROBLEMS 11-16 (1989); see also ARTHUR SELWYN MILLER, SOCIAL

CHANGE AND FUNDAMENTAL LAW 30 (1979)(stating, “[T]he group enables the

individual to enjoy a higher degree of freedom and liberty…through collective

8 The John Marshall Law Review [51:1

As Jeffrey Reiman observes in his essay, “The Constitution, Rights

and the Conditions of Legitimacy”:

[Stakeholders] are shaped by existing moral beliefs and therefore

may agree to arrangements which in fact do subjugate them. What

remains then is to look for nonsubjugating governance by asking

what it would be rational for people to agree with…. The social

contract is a way of determining what form of government is

nonsubjugating among people who have (or may have) differing

moral visions.

Notably, two differing moral visions clashed head-on in Brown

v. Board of Education.

The case is often cited as an instance where

the Supreme Court essentially overreached to arrive at its

landmark decision: student access to state-provided educational

facilities is not to be denied based on race – that the doctrine of

“separate but equal” was unconstitutional and that the Equal

Protection Clause of the 14

Amendment supported such a reading.

Strict constructionists and extra-constitutional theorists, although

supportive of the outcome, take the position that legitimacy of the

decision (and others like it) may be suspect as the text of the

Constitution does not support such a reading and that a proper

remedy should have been found by other constitutional means, i.e.,

amendment or legislation.

union, persons may accomplish ends which they would be unable to achieve as

individuals, and they may join in opposing the coercive tactics of other stronger

individuals and associations.”).

26. Jeffrey Reiman, The Constitution, Rights and the Conditions of

Legitimacy, in CONSTITUTIONALISM, A PHILOSOPHICAL PERSPECTIVE 141 (Alan

S. Rosenbaum, ed., 1998); see also Pamela A. Mason, Rhetorics of ‘the People’,

the Social Contract, and the Constitution, 61 THE REVIEW OF POLITICS 275

(1999) (an interpretative study of United States v. Verdago-Urquidez, 484 U.S.

259 (1990), a Fourth Amendment case, “regarding the constitutional rhetoric of

‘the People’ and with exclusionary and inclusionary understandings of the

national community”).

27. Brown v. Board of Edu., 347 U.S. 483 (1954).

28. See, e.g., John Valery White, Brown v. Board of Education and the

Origins of the Activist Insecurity in Civil Rights Law, 28 OHIO N.U.L.R. 303

(2002) (a discussion of the Brown decision and the judiciary’s “activist

insecurity” causing it to fail in its task of producing social change.); see Hon.

Charles B. Blackmar, Judicial Activism, 42 ST. LOUIS U.L.J. 753 (1997-98)

(discussion of the meaning and significance of activism in courts of last resort);

see Michael J.Perry, Judicial Activism, 7 HARV. J. L. & PUB. POL’Y 69 (1984)

(discussion of legitimacy and enforcement of contraconstitutional and

extraconstitutinal judicial review); see Hon. William Wayne Justice, The Two

Faces of Judicial Activism, 61 GEO. WASH. L. REV. 1 (1992-93) (describing

judicial activism as manifesting in two different forms: jurisprudential activism

and remedial activism). But see Luther M. Swygert, In Defense of Judicial

Activism, 16 VAL. U. L. REV. 439 (1981-82) (responding to the criticism that

courts are undemocratic and inconsistent with our form of government); see

Hon. Frank M. Johnson, Jr. In Defense of Judicial Activism, 28 EMORY L. J. 901

2017] Constitutionalism and the Inevitability of the Social Contract 9

Not surprisingly, southern political leaders were outraged with

the Brown decision and viewed it as an unconstitutional

infringement on the rights of the States and of those governed. On

March 12, 1956, in the “Declaration of Constitutional Principles,”

introduced on the floor of the Senate by Walter F. George, D-Ga.,

the Brown decision was characterized as one “where men substitute

naked power for established law.”

Members of Congress warned

against the “trend in the federal judiciary undertaking to legislate,

in derogation of the authority of Congress, and to encroach upon the

reserved rights of the States and the people.”

However, attacking constitutional decisions on legitimacy

grounds has the dangerous potential to disenfranchise segments of

society.

Disenfranchisement could include a large cohort of

stakeholders who have agreed to state protection of certain moral

values that encompassing commensurate basic rights, and such

disenfranchisement could effectively undercut the efficacy and

stability of the state.

Expounding on Reiman, social contract can

be the protection against such attacks.

For example, in West Virginia State Bd. Of Educ. v. Barnette,

which preceded Brown by eleven years, the Supreme Court finding

that the West Virginia State Board of Education, as a state actor,

was subject to the requirements of the 14

Amendment, stated that

“The Fourteenth Amendment, as now applied to the States, protects

the citizen against the State itself and all of its creatures -- Boards

of Education not excepted.”

In the Barnette decision, the majority

determined, ultimately on First Amendment grounds, that a school

board could not expel high school students for no other reason but

for refusing to say the “Pledge of Allegiance” due to religious

beliefs.

Thus, the inference here is that although a state is not

(1979) (examining the legacy of the Warren court and concluding that judicial

activism in defense of constitutional liberty is no threat).

29. 102 CONG. REC. 4459-4460 (March 12, 1956). Nineteen senators and

seventy-seven members of the House supported this declaration. Id.

30. Id.

31. See JAMES J. KIRKPATRICK, THE SOUTHERN CASE FOR SCHOOL

SEGREGATION 188 (1962) (“I believe the South will maintain what I have termed

essential separation of the races for years to come.”).

32. See Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017); see also

David A.J. Richards, Revolution and Constitutionalism in America, in

CONSTITUTIONALISM, IDENTITY, DIFFERENCE AND LEGITIMACY 104 (Michel

Rosenfeld, ed., Duke University Press 1994) (discussing the American

revolutionary principle of natural rights as the impetus for the Reconstruction

Amendments).

33. Reiman, supra note 26, at 141.

34. West Virginia State Bd. Of Educ. v. Barnette, 319 U.S. 624, 637 (1943);

see also Goss v. Lopez, 419 U.S. 565 (1975) (citing Barnette, court holding high

school students have a property interest in public education and cannot be

expelled without due process as guaranteed under the 14th Amendment).

35. Barnette, 319 U.S. at 642.

10 The John Marshall Law Review [51:1

obligated to provide public education, once a state does so, it cannot

infringe on such a right by denying a student access to education

without due process subject to First Amendment guarantees.

In reading Brown, along with Barnette, the right to a

desegregated education as a property right can be found.

Specifically, the Brown Court compares the value of receiving a

desegregated education with a segregated education and concludes

that there are measurable benefits in receiving an education in a

desegregated school.

Traditionally, only property can be measured

or valued and once valued, then compared to other like property.

Therefore, it follows that if the Court has determined that the value

of a desegregated education outweighs a segregated education and

since property can be valued and compared, then there is a strong

argument that the right to a desegregated education is a property

right and cannot be denied without due process of law.

By viewing desegregated education as a property right, then

the Constitutional social contract which preserves individuals’

“lives, liberties and estates,” collectively “property,”

is inviolable

and the limits of government must be held in check.

Further, in Griswold v. Connecticut, the Supreme Court

examined a Connecticut statute which made it a criminal offence

for anyone to provide counseling or assistance to another in regard

to the use of contraceptives.

The Supreme Court, in a 7 to 2

decision, held that the state has no right to invade the privacy of the

marital relationship, along with the physician’s role in that

relationship, as this relationship is the oldest and most sacred of

associations.

Justice Douglas, writing for the majority, refers to

this right of privacy as a penumbra emanating from the Bill of

Rights that help give constitutional guarantees “life and

substance.”

Of particular note, however, is Justice Goldberg’s concurring

opinion where he traces the right to privacy directly to the Ninth

Amendment which states:, “The enumeration in the Constitution of

certain rights, shall not be construed to deny or disparage others

retained by the people.”

Justice Goldberg explores the history of

the Ninth Amendment citing Madison’s fear that any bill of rights

36. Id.

37. Brown, 347 U.S. at 494-95.

38. Locke, supra note 7, at 101.

39. Griswold v. Connecticut, 381 U.S. 479 (1965). Appellant Griswold was

the Executive Director of Planned Parenthood League of Connecticut and

Appellant Baxton was a physician and professor at Yale Medical College and

Director of the League. They were both arrested, convicted and fined for

providing medical advice and information to married persons regarding

contraception devices and materials. Id.

40. Id. at 493.

41. Id. at 484.

42. U.S CONST. amend. IX.

2017] Constitutionalism and the Inevitability of the Social Contract 11

was not sufficiently broad to cover all essential rights and that such

enumerated rights would be interpreted as a denial of others not so

enumerated.

He goes on to say that, “In determining which rights

are fundamental, judges are not left at large to decide cases in light

of their personal and private notions. Rather, they must look to the

‘traditions and [collective] conscience of our people’ to determine

whether a principle is ‘so rooted [there] . . . as to be ranked as

fundamental.’”

For Locke, the Constitution’s silence on the guarantee of equal

protection as it applies to education as established in Brown or one’s

right to privacy found in Griswold, finds firm ground on the notion

that the trust of the People is not being compromised by charges of

illegitimacy when the judiciary acts to preserves those rights.

entering into a body politic, Locke maintained those individuals’

rights do not diminish – otherwise there would be no basis for

forming a state.

In modern parlance, collaboration among

stakeholders leads to a net gain – more can be achieved as a group,

than by acting as an individual.

Further, although stakeholders,

acting in good faith, must recognize differences among the group’s

interests, needs, and values in order to achieve consensus in

successfully solving a problem, [a majority of] rational people would

agree that basic rights would include a right to privacy in one’s

bedroom and a right to public education, and the state, through its

judicial decisions, must protect these rights as part of the social

contract between it and the People.

Clearly, early support for upholding the American social

contract through judicial actions can be found in Alexander

Hamilton’s Federalist 78:

A constitution is, in fact, and must be regarded by the judges, as a

fundamental law. It therefore belongs to them to ascertain its

meaning, as well as the meaning of any particular act proceeding

from the legislative body. If there should happen to be an

irreconcilable variance between the two, that which has the superior

obligation and validity ought, of course, to be preferred; or, in other

words, the Constitution ought to be preferred to the statute, the

intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the

judicial to the legislative power. It only supposes that the power of

the people is superior to both; and that where the will of the

legislature, declared in its statutes, stands in opposition to that of the

43. Griswold, 381 U.S. at 490.

44. Id. at 493. (further citations omitted); see also DAVID A.J. RICHARDS,

TOLERATION AND THE CONSTITUTION 256-61 (1986) (discussing American

jurisprudence and “constitutional” privacy).

45. See Locke, supra note 7, at 102.

46. Id. at 97.

47. See MILLER, supra note 25, at 30.

12 The John Marshall Law Review [51:1

people, declared in the Constitution, the judges ought to be governed

by the latter rather than the former. They ought to regulate their

decisions by the fundamental laws, rather than by those which are

not fundamental.

But – what are the intentions of the People? Locke understood

that unanimity in society was rarely achievable and, therefore:

By the consent of every individual, made a Community one Body,

with a Power to Act as one Body, which is only by the will and

determination of the majority…it is necessary the Body should move

that way whither the greater force that carries it, which is the

consent of the majority.

Collaborative decision-making and consensus building

requires that differences in values, interests and needs must be

recognized or the process breaks down. Locke recognized this and

cautioned “For where the majority cannot conclude the rest, there

cannot act as one Body and consequently will be immediately

dissolved….”

Here, again, Reiman is instructive as he posits that “A

constitution that limits government in ways that ensure sufficient

protection of everyone’s rights keeps the moral

promise…[G]overnment is legitimate to the extent that it protects

people’s basic rights sufficiently to defeat the suspicion that those

who dissent from governmental actions are subjugated by those

actions.”

Perhaps it is precisely this point that caused the seismic shift

of the 2016 electorate against Hillary Clinton and the Democratic

Party and, thus, elevated Donald Trump to the Presidency.

What

followed, however, is the visceral response as to the legitimacy of

Trump as President by the now seemingly disenfranchised minority

who believe that this President subjugates (or appears to subjugate)

48. THE FEDERALIST NO. 78 (Alexander Hamilton) (emphasis added).

49. Locke, supra note 7, at 96 (emphasis added).

50. Id. at 97. As Justice Jackson noted in Barnette, “Those who begin

coercive elimination of dissent soon find themselves exterminating dissenters.

Compulsory unification of opinion achieves only the unanimity of the

graveyard.” West Virginia State Bd. Of Educ. v. Barnette, 319 U.S. 624, 641

(1943).

51. Reiman, supra note 26, at 137.

52. See, e.g., 7 Reasons on How Donald Trump Won the Presidential Election,

NPR (Nov. 12, 2016), www.npr.org/2016/11/12/501848636/7-reasons-donald-

trump-won-the-presidential-election; How Did Donald Trump Win?, CNN (Nov.

10, 2016), www.cnn.com/2016/11/10/politics/why-donald-trump-won/; Why Did

Donald Trump Win? Just Visit Luzerne County, PA, NEWSWEEK (Dec. 16, 2016),

www.newsweek.com/2016/12/16/donald-trump-pennsylvania-win-luzerne-

county-527861.html; The Real Reason Why Donald Trump Won: Trend Away

from Incumbents, NATIONAL REVIEW (Jan. 17, 2017), www.nationalreview.com/

2017/01/real-reason-trump-won-trend-away-incumbents-strongest-factor/; How

Trump Won, REAL CLEAR POLITICS (Jan. 20, 2017), www.realclearpolitics.com/a

rticles/2017/01/20/how_trump_won_--_conclusions_132846.html.

2017] Constitutionalism and the Inevitability of the Social Contract 13

the basic rights of the dissenters to the actions of the government

– the very government that is entrusted with the protection of these

rights.

As a cautionary tale, Joshua Stein, in his Commentary on the

Constitution, uses the resignation of Richard Nixon as an example

of government violating the spirit of the social contract – where no

person is above the agreed upon law.

Stein cites Locke who wrote,

“whoever has the Legislative or Supreme Power of any

Commonwealth is bound to govern by established standing laws,

promulgated and known to the People, and not by Extemporary

Decrees.”

Although noting that America did not replicate

England’s Glorious Revolution of 1688 that ousted James II, Stein

remarks that Locke would probably have cheered Nixon’s

resignation in August 1974 as he had placed himself above the

common compact [moral promise] which is the Constitution of the

United States.

Further, the Constitution as moral promise remains static

while who comprises the majority and minority shifts. For example,

when the Thirteenth Amendment was introduced to the House of

Representatives on March 19, 1864 by Representative James

Wilson, he commented on the dramatic change in public opinion on

the slavery issue as a result of the Civil War, stating, “[a] public

opinion now existing in the country in opposition to this power is

the result of slavery overleaping itself, rather than of the

determination of freemen to form it.”

Thus, what is once the majority becomes the minority and vice-

a versa, how does the State relate to such shifts and, consequently,

what is the effect on the social contract? According to Robert A.

Dahl, “A central guiding thread of American constitutional

development has been the evolution of a political system in which

all the active and legitimate groups in the population can make

themselves heard at some crucial stage in the process of decision.”

53. Supra note 52; see Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27,

2017) (banning for 90 days, among other changes to immigration policies and

procedures, entry into the United States of individuals from seven countries);

see also Barnette, 319 U.S. at 642 (stating, “But freedom to differ is not limited

to things that do not matter much. That would be a mere shadow of freedom.

The test of its substance is the right to differ as to things that touch the heart

of the existing order.”).

54. JOSHUA STEIN, COMMENTARY ON THE CONSTITUTION – FROM PLATO TO

ROUSSEAU 246 (2011).

55. Locke, supra note 7, at 102.

56. STEIN, supra note 54, at 246.

57. Cong. Globe, 38th Cong. 1st Sess. 1199-1206 (1864) (Rep. Wilson)

(further citations omitted); see also Locke, supra note 7, at 89. Locke states that

“For a man not having the power of his own life cannot by compact, or his

consent, enslave himself to anyone, nor put himself under the absolute,

arbitrary power of another to take his life when he pleases.” Id.

58. ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 137 (1956)

14 The John Marshall Law Review [51:1

Constitutional theorist, Arthur Selwyn Miller, who agrees with

Dahl, opined that it was only those policies that strike a balance

between pleasing the most people and offending the least number

are eventually formed and established here in the United States.

Miller continues, “Put in another way, this means that the State is

not all-powerful; it cannot operate as it wishes, it cannot fail to take

into serious consideration the demands or wishes of units of our

organizational society.”

Miller points out that there is a crisis in American

constitutionalism which centers on the “problem of getting true

national-interest decisions in a system in which decisions are the

result of the interaction of the group interests and tend to reflect

the lowest common denominator among affected groups.”

Therefore, it follows that within each of these units or groups

there can only be a fractured unity of the group’s demands or wishes

as each member’s take on any particular issue is always skewed by

that member’s own unique view as to the reality of the particular

problem and the forthcoming solution. Although the consensus of

the group emerges out of a process among stakeholders – the body

politic – the coming together to exchange individual rights for the

protections offered by the state, the potential for violence simmers

below the surface. This stasis among members arguably maintains

the status quo within the group (and among other groups), but

should the State fail the People in its performance under the social

contract by creating policies that seem to cater to one group at the

expense of another (which ultimately trickles down and

disenfranchises the individual), a reaction, even a violent one, is to

be expected, along with any constitutional shift. For as John Ardrey

in The Social Contract explains a minority [sub-group] never sheds

the need to be recognized: “The violent sub-group, whatever its just

demands or righteous protestations, seeks as a primary satisfaction

the innate need for identity.”

For example, Roe v. Wade, decided in 1973 by a 7-2 majority,

relying on Griswold, expanded the constitutionally protected right

to privacy to include a woman’s right to have an abortion, but such

a right is qualified and the state could regulate the procedure in

order to protect a woman’s health.

The Court stated, “We,

(further citations omitted).

59. ARTHUR SELWYN MILLER, SOCIAL CHANGE AND FUNDAMENTAL LAW 70

(1979).

60. Id.

61. Id. at 91.

62. ARDREY, supra note 5, at 294.

63. Roe v. Wade, 410 U.S. 113, 154 (1973); see also Planned Parenthood v.

Casey, 505 U.S. 833, 851 (1992):

[T]hese matters, involving the most intimate and personal choices a

person may make in a lifetime, choices central to personal dignity

2017] Constitutionalism and the Inevitability of the Social Contract 15

therefore, conclude that the right of personal privacy includes the

abortion decision, but that this right is not unqualified, and must

be considered against important state interests in regulation.”

The Roe case, although decided almost forty-five years ago, still

ignites a firestorm of controversy, occasionally marked by extreme

violence. At the time the decision was rendered, the Nation, in an

editorial noted:

As nearly as ten years ago, it was inconceivable that such a decision

could have been handed down. What are the prerequisites for such a

reversal of attitude at the highest judicial level? For one thing, there

must be a special constituency, imbued with zeal, packing the force of

reason, and pushing hard for a change in the law. Without an active

vanguard, the ancient concepts will not be questioned, much less

critically examined.

However, commenting on the Roe decision and the abortion

controversy that still rages, Lawrence Tribe noted that the debate

has become a “clash of absolutes” between Roe’s defenders and

detractors with little room for compromise.

That said, for now the

decision still stands, but – if it is eventually overturned, then it

follows that those disenfranchised by such a decision would

ultimately exercise those rights guaranteed through the social

contract to bring about change through some other political or

governmental means.

Disenfranchisement of those who constitute the fractured

parts of the whole, and the destructive inertia that could result, was

foreseen by James Madison as he developed his theory of

factionalism.

Notably, Madison, in writing to Thomas Jefferson in

1788, warned against such a threat:

Wherever the real power in a Government lies, there is the danger

of oppression. In our Governments, the real power lies in the

majority of the Community, and the invasion of private rights is

chiefly to be apprehended, not from acts of Government contrary to

the sense of its constituents, but from acts in which the Government

and autonomy, are central to the liberty protected by the Fourteenth

Amendment. At the heart of liberty is the right to define one's own

concept of existence, of meaning, of the universe, and of the mystery

of human life. Beliefs about these matters could not define the

attributes of personhood were they formed under compulsion of the

State.

Planned Parenthood, 505 U.S. 833 at 851; see also Brown v. Board of Edu., 347

U.S. 483, 494-95 (1954).

64. Roe, U.S. 410 at 154.

65. Roe v. Wade, THE NATION (Feb. 5, 1973), www.thenation.com/article/roe-

v-wade/ (further citations omitted) (emphasis added).

66. LAWRENCE TRIBE, ABORTION: THE CLASH OF THE ABSOLUTES (1982).

67. See infra notes 68, 75 (Madison’s “factionalism” defined).

16 The John Marshall Law Review [51:1

is the mere instrument of the major number of the Constituents.

For Locke, oppression of rights (i.e., confiscation of property

[which includes lives, liberties and estates]) by the government or

by special interests within the government (or the failure of the

government to guard against such special interests) provides the

impetus for reclamation of such rights which could include the very

destruction of the government.

Recognition of the tension between

the Lockean theory of social contract and majority rule with

Madison’s astute observations of the destructive effect of

factionalism within the Republic (which can result in a breach of

the social contract), finds its genesis in Madison’s critique of the

Articles of Confederation, Vices of the Political Systems of the United

States, written in May 1787. Madison asks when an “apparent

interest or common passion unites a majority, what is to restrain

them from unjust violations of the rights and interests of the

minority, or of individuals?”

Madison, in answering this question

points to three motives: “prudent regard to [the majority]’s own

good as involved in the general and permanent good of the

community”; “respect for character”; and, religion.

Madison, next examines each motive in turn, and dismisses

each one as a proper restraint against the majority’s suppression of

the minority.

Madison ultimately concludes since it is the primary

objective of the Government to be “sufficiently neutral between the

different interests and factions, to controul one part of the society

from invading the rights of another, and at the same time

sufficiently controuled itself, from setting up an interest adverse to

that of the whole Society.”

Here, Madison is articulating the

nature of social contract and the clear duty of the Government to

mitigate the self-serving interests of groups by recognizing this duty

and to perform as the social contract [moral promise] demands.

Anything less is a breach of and a failure by the Government to

uphold the trust instilled in it by the People for which they gave up

their natural liberty.

Finally, Madison sees that it will only be through a large

68. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788) in THE

JAMES MADISON PAPERS AT THE LIBRARY OF CONGRESS (Gaillard Hunt ed., New

York: G.P. Putnam’s Sons 1900-1910).

69. See Locke, supra note 7; see also ARDREY, supra note 5, at 296 (“The

immense industrial and agricultural complex which has banished or can banish

economic insecurity from our lives rests, a much as any other social institution,

on the web of interdependence. Without a high degree of order…it cannot

function.”).

70. James Madison, Vices of the Political System of the U. States (May 7,

1787), in THE JAMES MADISON PAPERS AT THE LIBRARY OF CONGRESS (Gaillard

Hunt ed., New York: G.P. Putnam’s Sons 1900-1910).

71. Id.

72. Id.

73. Id.

2017] Constitutionalism and the Inevitability of the Social Contract 17

republic whereby the pool of candidates is exponentially increased

that “such a process of elections as will most certainly extract from

the mass of the society the purest and noblest characters which it

contains; such as will at once feel most strongly the proper motives

to pursue the end of their appointment, and be most capable to

devise the proper means of attaining it.”

It is the elected officials,

as representative of the People – the body politic- reflecting these

constituencies [and the range of opinions and issues] from whence

they come, that are the agents for keeping the moral promise as

imbued in the Constitution.

Madison was clearly fearful of the destructive nature of

factions in a purely democratic system and understood the oft self-

serving nature of human beings.

In his famous Federalist 10, he

campaigned for a republican form of government as a means of

tempering such tendencies and guaranteeing the moral promise.

He wrote:

A zeal for different opinions concerning religion, concerning

government, and many other points, as well of speculation as of

practice; an attachment to different leaders ambitiously contending

for pre-eminence and power; or to persons of other descriptions

whose fortunes have been interesting to the human passions, have,

in turn, divided mankind into parties, inflamed them with mutual

animosity, and rendered them much more disposed to vex and

oppress each other than to co-operate for their common good... [t]he

regulation of these various and interfering interests forms the

principal task of modern legislation, and involves the spirit of party

and faction in the necessary and ordinary operations of the

government.

Here, Madison understood the value of consensus building

among stakeholders which is critical to the success of any

undertaking and inextricably linked to the Lockean principles of

social contract. He recognized that Government is charged with

mediating those positions that will often be at odds with each other;

however, successful resolution of any problem mandates that these

competing interests must be taken into consideration without the

subversive undercutting of a differing party’s position and by

74. Id.

75. Id. Madison defined “factions” as “a number of citizens, whether

amounting to a majority or a minority of the whole, who are united and actuated

by some common impulse of passion, or of interest, adverse to the rights of other

citizens, or to the permanent and aggregate interests of the community.” Id.; see

also TOCQUEVELLE, supra note 23, at 121; see also MORTON WHITE, PHILOSPHY,

THE FEDERALIST, AND THE CONSTITUTION 77-78 (1989) (discussing Madison’s

view of factionalism as being caused by the various and unequal distributions

of property).

76. THE FEDERALIST No. 10 (James Madison).

77. Id. (emphasis added).

18 The John Marshall Law Review [51:1

rewarding collaboration over individual gain. Short of this - the

process will break down, perhaps irretrievably and any “resolution”

emanating from such a flawed process, will be suspect, but such

suspicion and reaction thereto will not be unexpected.

As previously noted, Locke wrote that if the People “find

themselves aggrieved, and think the [government] acts contrary to

or beyond that trust, who so proper to just as the body of the people,

who first lodged that trust in [it].”

Given the present national

milieu, the sensitivity to the Constitution as moral promise is

heightened. As in our past, today’s judicial scrutiny of executive and

legislative decisions is commensurate with the evolving social

contract between the People and the Government along with the

ongoing consent of the governed to submit to the protections of the

Government. However, as Justice Wilson wrote in Chisholm v.

Georgia, implicating Lockean social contract, “As a citizen, I know

the government of that state to be republican; and my short

definition of such a government is one constructed on this principle

-- that the supreme power resides in the body of the people.”

Although the “body of the people” conjures up a vision of a

whole with many parts each clamoring for recognition, identity, and

validation, Reiman’s observations are helpful:

[O]ur disagreements over the Constitution are shaped by and

contained within thee moral vocabulary of the Constitution and are

thus those things on which we have agreed to disagree…The

Constitution projects a moral culture, and this itself, even if it

doesn’t constrain us to one single outcome, constrains us

nevertheless and does the work of limiting government power – even

the Supreme Court’s power as it reinterprets the Constitution

It is precisely this moral culture – founded on the principles of

preserving life, liberty and property through our social contract –

although constrains us, sustains us as well.

78. See Locke, supra note 7, at 107.

79. Chisholm v. Georgia, 2 U.S. 419, 457 (1793).

80. Reiman, supra note 26, at 146-47.

2017] Constitutionalism and the Inevitability of the Social Contract 19