capitalism

Contractarianism/Social Contract 103
Constitution is a league of sovereign states and his refusal
to endorse substantive due process disqualify him as a true
libertarian constitutionalist.
A constitution is sometimes said to represent the will of
the sovereign. In the United States, where the people are
sovereign and the Constitution is explicitly ordained by “the
people of the United States,” the Constitution represents the
basic agreement of the whole people—as distinguished
from mere legislation, which only represents the agreement
of the members of a particular legislature at a particular
time. Thus, according to The Federalist, the judiciary is
actually enforcing the will of the people—not overriding
it—when it annuls a law that exceeds constitutional limits.
If a constitution is a higher order law that limits the legislative
powers of the state, it must be drafted or authorized
by some power other than the legislature. In his Notes on the
State of Virginia, Thomas Jefferson declared that one of the
leading defects of the Virginia Constitution at that time was
that it could be altered by the legislature. This idea was
problematic because a legislature could not have power to
“pass an act transcendent to the powers of other legislatures,”
such as a constitution. “The other states in the Union
have been of the opinion that to render a form of government
unalterable by ordinary acts of assembly, the people
must delegate persons with special powers.” It was in this
spirit that the federal convention of 1787 prepared, and special
ratification conventions later approved, the U.S. Constitution.
Moreover, the fact that it was not ratified by state
legislatures made the 1787 Constitution an agreement of the
whole people of the United States, as opposed to a league of
sovereign entities, as were the Articles of Confederation.
For Madison, this distinction was essential because “one
of the essential differences between a ‘league’ and a
‘Constitution’ was that the latter would prevent subunits
from unilaterally bolting whenever they became dissatisfied.”
Thus, the fact that the Constitution is, in fact, a constitution
and not a treaty is decisive in the question of
whether secession is constitutionally permissible.
See also Constitution, U.S.; Madison, James; Magna Carta;
Rule of Law
Further Readings
TMS
Ackerman, Bruce. We the People: Transformations. Cambridge,
MA: Harvard University Press, 1998.
Amar, Akhil Reed. America’s Constitution: A Biography. New York:
Random House, 2005.
Barnett, Randy E. “The Original Meaning of the Commerce
Clause.” University of Chicago Law Review 68 (2001): 101–147.
Buchanan, James M. “Generality as a Constitutional Constraint.”
The Collected Works of James M. Buchanan. vol. 1. Geoffrey
Brennan, Hartmut Kliemt, and Robert D. Tollison, eds.
Indianapolis, IN: Liberty Fund, 1999. 427.
Cooley, Thomas. A Treatise on Constitutional Limitations. Boston:
Little, Brown, 1868.
De Jasay, Anthony. Justice and Its Surroundings. Indianapolis, IN:
Liberty Fund, 1998.
Douglass, Frederick. “The Constitution of the United States: Is It
Pro-Slavery or Anti-Slavery?” Frederick Doulgass: Selected
Speeches and Writings. Philip Foner and Yuval Taylor, eds.
Chicago: Lawrence Hill Books, 1999.
Gerber, Scott. To Secure These Rights: The Declaration of
Independence and Constitutional Interpretation. New York:
New York University Press, 1996.
Hayek, Friedrich. Law, Legislation and Liberty: Vol 2. The Mirage
of Social Justice. Chicago: University of Chicago Press, 1978.
Kens, Paul. Justice Stephen Field: Shaping Liberty from the Gold
Rush to the Gilded Age. Lawrence: University Press of Kansas,
1997.
Pilon, Roger. “How Constitutional Corruption Has Led to
Ideological Litmus Tests for Judicial Nominees.” Nexus:
A Journal of Opinion 7 (2002): 67–78.
Rosen, Gary. American Compact: James Madison and the Problem
of Founding. Lawrence: University Press of Kansas, 1999.
Sandefur, Timothy. “How Libertarians Ought to Think about the
U.S. Civil War.” Reason Papers 28 (2006): 61–83.
Schor, Miguel. “Constitutionalism through the Looking Glass
of Latin America.” Texas International Law Journal 41 (2006):
1–37.
Sunstein, Cass R. “Constitutionalism after the New Deal.” Harvard
Law Review 101 (1987): 421–510.
———. “Naked Preferences and the Constitution.” Columbia Law
Review 84 (1984): 1689–1732.
CONTRACTARIANISM/
SOCIAL CONTRACT
The idea of a social contract as the basis for morality or
political principles goes back a long way—there is, for
example, a brief statement of it in Plato’s Republic. More
notably, the great writers on political and moral philosophy
of the 18th century were contractarians. In our own time,
John Rawls’s work is regarded, both by him and those who
are familiar with his writings, as falling within the general
tradition of social contract theory, while David Gauthier’s
“morals by agreement” present an elaboration of the principles
of contractarianism.
Inasmuch as contractarianism has specific reference to a
theory about the foundations of moral and political philosophy,
its relation to libertarianism is somewhat indirect.
Libertarianism is a theory regarding the general principles of
justice. The underlying support for these principles, in the
contractarian view, is that such theories are rational only if all
agree to it. Additionally, contractarianism has no direct connection
to any actual historical event, such as a Constitutional
Convention; the idea is more abstract than that.
Two features of contract are crucial. First, one who enters
into a contract does so for reasons of his own, usually