The Actual Origin of Goverment

It's a very popular opinion, and one that I have held for a considerable point of time, that ultimately governments get their just powers from the consent of the governed. It is an idea called the social contract theory, and remarkably, it is actually wrong. 

Yes, it sounds nice when we say it. Men live in a state of nature, free men, but they find that their freedom is not protected from stronger, less moral men, who like to prey on the weak. Thus, these men come together and form a government, delegating some of their power, so that their rights can be protected from brute force. 

But I don't know about you, but I've never seen a government that has been formed in that manner. Indeed, all governments that we seem to see formed are simply transferring from one government to another. We have never actually examined a government being formed from a state of nature.

That isn't necessarily a problem for social contract theorists because simply because we wouldn't know how the first government started, doesn't mean that it didn't start out as a social contract. 

No, the problem instead begins with the fact that we actually kinda have seen the first government being created, and it wasn't made by man, but by God. 

The very first government was put in place by God before the fall! Adam and Eve were given dominion over all animals when they were placed in the Garden of Eden. the Lord gave them a sceptre and used them to rule over creation. Welcome to government. 

Then of course, we sinned, and government's purpose was slightly corrupted, but God still ordained it as a good force. Romans 13 explains, 

"Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same: For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil."

Indeed, the social contract theorists' favorite points about how government is a necessary evil or necessary because of evil are kinda both wrong from a biblical perspective. Now don't get me wrong, there are definitely things done by government that are not good, and this verse does not prevent those from being a thing, but government as an institution is a "minister unto us for good." 

The fact that government is not actually evil is perhaps best illustrated by the fact that there will be a government in heaven. The Kingdom of God is just maybe a bit of a thing that comes up in Scriptures here and there. Probably not a big deal though. 

My essential arguments about the principles of government remain unchanged, but now it's not because there's a contract that men have signed with government that limits what they are to do, but because God ordained the government for a specific purpose, and they probably ought to fulfill that purpose. 

Yes, I actually think I have a more compelling case now. Following God's ordinance is more important than following man's ordinance, after all. 

Intent-based Framework to Fulfill Original Intention

The court has been endowed with the role of interpreting the Constitution to determine the constitutionality of congressional (or executive) action. As such, it is important for the nation to have an adequate debate about how this interpretation should take place. 

With this in mind, Edwin Meese, Attorney General under Ronald Reagan, expressed his opinion that the court should interpret the Constitution based off of the founder’s intent. His views generated a debate as opponents of his view expressed their own. Such an individual was Supreme Court Justice William Brennan, Jr., who argued that the Constitution needs to be interpreted and adapted to the current trends of the day. 

Ultimately, there are grains of truth in Brennan’s arguments, but Meese’s interpretive criteria is preferable. We shall examine this by weighing Brennan and Meese’s arguments on the topics of the feasibility of the historical interpretative methodology, the purpose of the Constitution, and finally, the room for flexibility within the document.

Feasibility of Intent-Based Framework

Meese begins his analysis of the intent-based methodology by describing our ability to know the intent of the Constitutional authors. After all, the Convention is relatively recent (only 200 years), and as such, information is readily available not just on the document itself, but also on the ideas that inspired its creation. 

According to Meese, we have a number of works written by the founders, which reveal their thoughts and intentions about the Constitution and its principles. It is then clear to Meese that we can discover the meaning of the original text, and not have to rely upon our own understanding of the document.

Brennan on the other hand argues that it is arrogant to think that we could know exactly what the founders would think about contemporary issues. Indeed, the founders couldn’t have anticipated the questions of intellectual property in the world of the internet. Thus, it is simply infeasible to use an intent-based approach to Constitutional analysis.

Ultimately, the truth lies with Meese’s arguments. Since the Constitution is intended as a limit to the power of government to protect individual rights, our understanding of what the founders would do in certain political situations is not as important as our understanding of their view on individual rights. Indeed, there is plenty of opportunity for us to see where the founders sat on political autonomy.  

            

Purpose of the Constitution

That leads well into Meese’s next argument - the purpose of the Constitution is to provide a limit to the power of our federal government. It is not far for Meese to then say that if we start reading our own principles and perspectives into the Constitution rather than the intended principles, that we quickly eliminate any inherent limit or protection of individual rights within the document itself. 

To support this point, Meese cites as an example the Dred Scott decision, where Chief Justice Taney read African-Americans out of the Constitution entirely – a position which is not found within the founder’s original writings, or within the current political climate of the time. Meese argues that just like in this instance, our individual rights become threatened if the court can interpret the Constitution according to any other standard than the founder’s intent.

Brennan’s arguments all really lend support to Meese’s argument on this point. Brennan makes the case even that the Constitutional principles should change based off of the generation, but that the fundamental principles should not be changed. Unfortunately for Brennan, he does not clarify what he means as fundamental principles. 

Without such a standard, it seems only logical to assume that each individual justice would determine which principles were “fundamental.” It doesn’t take much to see that this could lead to reinterpretation of the Constitution at the will of the justices alone. But a fluid document can never serve as a limit to the federal government.  

Adaptability/Flexibility within Document

We now reach the main point of Brennan’s counter-argument, namely, the ability of the country to adapt to changing circumstances. It is Brennan’s primary contention that limiting ourselves purely within the context of the original intent of the founders will result in anachronistic decision-making. After all, the values of 1789 are quite different than they are today. 

According to Brennan, this means that an intent-based methodology would eschew social progress because we would be inevitably biased against the claims of constitutional rights. Related, Brennan believes that the court should not be deferential to the other bodies of the legislature. 

Brennan believes that the Constitution includes a discussion of substantive value choices. Thus, he believes that the court has a duty to ensure that the rights of the people are protected from the majoritarian process.

Meese believes that the Constitution’s universal language when discussing human rights is enough to limit the power of congress. Meanwhile the power given to congress allows the flexibility to regulate new industries to protect the rights of the individual. Indeed, the Constitution was written so broadly and universally that it would never become outdated by social (or technological progress). 

Ultimately, then Brennan is correct in saying that the court should not simply defer to the legislative bodies when it comes to substantive value choices and should be able to strike down laws contrary to the Constitutional views of human rights. Nonetheless, the court should still base its decisions on such issues off of Meese’s intent-based methodology.  

Intent-based Framework to Fulfill Original Intention

When it comes down to it, the Constitution is about limiting the power of the federal government. To provide a meaningful limit, we must use the founder’s original intent as an interpretative framework. Any other framework opens the door for constant fluidity within the document, which kills its ability to limit the power of government. Thus, Meese’s intent-based framework is the only one that fulfills the original goal and intent of the Constitution – to limit government.