Myths about the U.S. Constitution and Individual Rights That Erode Civil Society

The National Constitution Center in Philadelphia hosted an online discussion recently about the new book The Year of Living Constitutionally: One Man’s Humble Quest to Follow the Constitution’s Original Meaning. The conversation featured the book’s author, journalist A. J. Jacobs, and NCC president and CEO Jeffrey Rosen. I encourage readers to watch the entire discussion; this post will focus on only a short excerpt.

During the discussion, Mr. Jacobs said, “You have natural rights, you were born with natural rights, but those rights, once you enter into society, you made a contract, and those rights have to be balanced against the common good” (clip at 24:17).

It is unclear whether Jacobs was expressing his own viewpoint or reciting a common perspective (my guess, based on the context, is both). Regardless, Jacobs’s statement contains several enduring, dangerous myths that have been retold in classrooms so many times that they are seldom challenged despite being wrong.

Myth #1: The U.S. Constitution is a contract between the People and the State.

The Constitution is not a contract. It does not contain, and never has, the elements of a contract. According to the Legal Information Institute at Cornell Law School,

A contract is an agreement between parties, creating mutual obligations that are enforceable by law. The basic elements required for the agreement to be a legally enforceable contract are: mutual assent, expressed by a valid offer and acceptance; adequate consideration; capacity; and legality.

The People have never entered into a contract with the State. This was emphasized by Independent Institute senior fellow Robert Higgs in his essay titled “Consent of the Governed, Revisited”:

[I]n regard to the so-called social contract, I have often had occasion to protest that I haven’t even seen the contract, much less been asked to consent to it. A valid contract requires voluntary offer, acceptance, and consideration. I’ve never received an offer from my rulers, so I certainly have not accepted one; and rather than consideration, I have received nothing but contempt from the rulers, who, notwithstanding the absence of any agreement, have indubitably threatened me with grave harm in the event that I fail to comply with their edicts. 

No one in their right mind would voluntarily consent to a document that binds them to a group indefinitely that can “legally” take their income, wealth, and liberty at any time based on an institutional majority vote. American philosopher Lysander Spooner pointed out in 1867, “To say that majorities, as such, have a right to rule minorities, is equivalent to saying that minorities have, and ought to have, no rights, except such as majorities please to allow them.”

A randomly selected individual in the United States has greater certainty of service delivery at a specified price by their wireless provider because of a contract than they do with their federal, state, or local government based on any constitution or charter. For example, many people may be surprised to learn that the U.S. Supreme Court has ruled that the police do not have a general constitutional duty to protect someone from harm. Tragically, parents in Uvalde, Texas, among others, have learned this the hard way. Ordinary citizens would be better served by private security agencies operating under contracts that specify the terms (duties) of protection than they are currently served by government law enforcement agencies operating under local or state authority.

The U.S. Constitution is not a contract. It has never received the consent of the governed, and based on how governments treat their subjects, few people would voluntarily consent to its terms if given the opportunity.

Myth #2: The “common good” exists and it can be discerned.

Despite having been slain more than 70 years ago, the notion of the “common good” is a myth that lives on like a zombie. In a 1951 monograph titled Social Choice and Individual Values, Nobel laureate economist Kenneth J. Arrow demonstrated that it is generally impossible to determine the “common good.” The Arrow (impossibility) theorem, as it became known, assumes several noncontroversial conditions, for example, that each individual has complete and transitive preferences regarding the outcomes under consideration in a collective-choice context, such as voting.

According to MIT researcher S. M. Amadae, Arrow’s theorem proves that it is impossible to construct “any mathematical procedure [i.e., a social choice rule] for amalgamating individual preferences that results in a collectively rational preference ordering of all the possible outcomes.” The implications of Arrow’s theorem are profound. As Amadae explained, “The theorem rejects the notion of a collective democratic will, whether derived through civic deliberation or construed by experts who paternalistically apply knowledge of what is best for a population.”

Individual rights, preferences, and interests do exist, and those often motivate individuals to align into groups or factions. However, there is no “common good,” “general welfare,” or “the public.” Those are aggregation fallacies.

Returning to A. J. Jacobs’s statement above, since there is no common good, it is nonsensical to say that “balancing” natural rights achieves outcomes closer to the common good.

Myth #3: The State must balance rights when individuals enter into society.

Mr. Jacobs is correct in saying that every individual is born with natural rights. He is wrong, however, that those rights must be balanced (attenuated) by the State (politicians) when individuals enter into society. Instead, a peaceful, well-ordered society requires the fullest expression and protection of natural rights, beginning with private property rights, the most important of all the natural rights.

In his classic 1967 paper “Towards a Theory of Property Rights,” economist Harold Demsetz noted, “In the world of Robinson Crusoe property rights play no role.” Private property rights emerged and evolved when people began to be in conflict with each other over scare resources, resulting in negative externalities. Moreover, as explained by Wanjiru Njoya of the Mises Institute,

Property rights—the rights to own property and to buy and sell property or enter into other contracts in relation to its use—vest equally in all individuals. Equality before the law is not a concept denoting equalization of the [naturally] unequal, or equalization of property ownership, but a concept asserting the right to own property in the formal sense: not that everyone has property, but that everyone has the right to have property (italics in the original). 

In 1959, Murray Rothbard, an American economist, historian, and political theorist, wrote an article for the Foundation for Economic Education (FEE) titled “Human Rights are Property Rights.” Rothbard asserted, “The rights of the individual are still eternal and absolute; but they are property rights. . . . [P]roperty rights . . . are in fact the most basic of all human rights.” Property rights are the foundation of all natural rights.

Rothbard elaborated on this crucial point, demonstrating the primacy of property rights and the freedom to contract among man’s natural rights in his classic 1973 book For a New Liberty, “[T]he human right of a free press is the property right to buy materials and then print leaflets or books and to sell them to those who are willing to buy. There is no extra ‘right of free speech’ or free press beyond the property rights we can enumerate in any given case.”

Natural rights are inseparable from property rights, which include the right to make mutually agreed-upon contracts and exchanges with owners of other property rights. All of man’s natural rights are rooted in property rights; they are subdivisions of property rights, as Rothbard wrote. Private property rights are primary because they make all other natural rights workable in a world of scarcity. Thus, private property rights regulate man’s natural rights in a society based on voluntary market exchanges without the need for government “balancing” rights. Private property rights allow people to thrive together peacefully. [1]

Many of today’s most intractable problems are rooted in poorly defined and inadequately enforced private property rights, including housing shortages, pollution, wildfires, urban theft, destructive campus and street protests, water availability, and street homelessness. Strengthening private property rights would yield less conflict, violence, and other societal problems.

Contrary to Mr. Jacobs’s statement, natural rights, particularly secure private property rights, are more important, not less, as people enter into society. Rather than balancing those rights, they need to be fully defined and enforced. When people believe the myths, as too many Americans do, that the Constitution is a contract that confers to the sovereign state legitimate power to balance legal rights to achieve the common good or general welfare, then secure individual rights cease to exist. Rights become whatever is left over.

Conclusion.

With these myths debunked, it is reasonable to ask: What should we aspire to achieve? Founding Father and revolutionary Thomas Paine provided a vision in Rights of Man (1791) that remains true today:

A great part of that order which reigns among mankind is not the effect of government. It had its origin in the principles of society, and the natural constitution of man. It existed prior to government, and would exist if the formality of government was abolished. The mutual dependence and reciprocal interest which man has in man and all the parts of a civilized community upon each other create that great chain of connection which holds it together.

The landholder, the farmer, the manufacturer, the merchant, the tradesman, and every occupation prospers by the aid which each receives from the other, and from the whole. Common interest regulates their concerns, and forms their laws; and the laws which common usage ordains, have a greater influence than the laws of government. In fine, society performs for itself almost everything that is ascribed to government….

[I]nstances are not wanting to show that everything which government can usefully add thereto, has been performed by the common consent of society, without government. . . . The instant formal government is abolished, society begins to act.

We should strive, therefore, to achieve a radically decentralized society politically, even stateless societies, governed, not by constitutions, but by voluntary contracts rooted in the natural rights of individuals; and a society where bills are paid for services rendered, not taxes imposed by ruling elites. Public laws of the “sovereign state” should give way to private law and private governance, with subsidiarity and depoliticization the guiding principles. We have much work to do.

Notes

[1] For a fuller discussion regarding the previous three paragraphs, see my commentary titled “The Disney–DeSantis Feud: Avoidable in a Society Rooted in the Natural Law.”