The Constitution as a Social Contract In Marcos v.

Manglapus,[1] the Supreme Court speaking through Justice Cortes categorically opined that the Constitution, aside from being an allocation of power is also a social contract whereby the people have surrendered their sovereign powers to the State for the common good. The Social Contract Theory is nearly as old as philosophy itself. In general, it is the view that persons moral and/or political obligations are dependent upon a contract or agreement between them to form society.[2] As a modern political theory, it has taken its full shape in the writings of the three main social contract theorists: Thomas Hobbes, John Locke and Jean-Jacques Rousseau. In the twentieth century, it gained revival in the works of John Rawls. In laying down the foundation and basis for this paper, a brief summary of the different versions of the social contract theory is in order, and for this purpose, I reproduce the summaries made by the Internet Encyclopedia of Philosophys article on the Social Contract Theory[3] with very slight modifications, viz.: Thomas Hobbes Version According to Thomas Hobbes, the justification for political obligation is this: given that men are naturally self-interested, yet they are rational, they will choose to submit to the authority of a Sovereign in order to be able to live in a civil society, which is conducive to their own interests. Hobbes argues for this by imagining men in their natural state, or in other words, the State of Nature. In the State of Nature, which is purely hypothetical according to Hobbes, men are naturally and exclusively self-interested, they are more or less equal to one another, there are limited resources, and yet there is no power able to force men to cooperate. Given these conditions in the State of Nature, Hobbes concludes that the State of Nature would be unbearably brutal and he concludes that the State of Nature is the worst possible situation in which men can find themselves. It is the state of perpetual and unavoidable war. The situation is not, however, hopeless. Because men are reasonable, they can see their way out of such a state by recognizing the laws of nature, which show them the means by which to escape the State of Nature and create a civil society. Being reasonable, and recognizing the rationality of this basic precept of reason, men can be expected to construct a Social Contract that will afford them a life other than that available to them in the State of Nature. This contract is constituted by two distinguishable contracts. First, they must agree to establish society by collectively and reciprocally renouncing the rights they had against one another in the State of Nature. Second, they must imbue some one person or assembly of persons with the authority and power to enforce the initial contract. After these contracts are established, then society becomes possible, and people can be expected to keep their promises, cooperate with one another, and so on. The Social Contract is the most fundamental source of all that is good and that which we depend upon to live well. Our choice is either

to abide by the terms of the contract, or return to the State of Nature, which Hobbes argues no reasonable person could possibly prefer. John Lockes Version In contrast to Hobbes concept of the hypothetical State of Nature, Locke considers the State of Nature as a state of perfect and complete liberty to conduct one's life as one best sees fit, free from the interference of others. So, the State of Nature is a state of liberty where persons are free to pursue their own interests and plans, free from interference, and, because of the Law of Nature and the restrictions that it imposes upon persons, it is relatively peaceful. However, since in the State of Nature there is no civil power to whom men can appeal, and since the Law of Nature allows them to defend their own lives, they may then kill those who would bring force against them. Since the State of Nature lacks civil authority, once war begins it is likely to continue. And this is one of the strongest reasons that men have to abandon the State of Nature by contracting together to form civil government. Jean-Jacques Rousseaus Version Rousseau for his part, begins with the most oft-quoted line Man was born free, and he is everywhere in chains. He argues that humans are essentially free, and were free in the State of Nature, but the progress of civilization has substituted subservience to others for that freedom, through dependence, economic and social inequalities, and the extent to which we judge ourselves through comparisons with others. Since a return to the State of Nature is neither feasible nor desirable, the purpose of politics is to restore freedom to us, thereby reconciling who we truly and essentially are with how we live together.[4] The most basic covenant, the social pact, is the agreement to come together and form a people, a collectivity, which by definition is more than and different from a mere aggregation of individual interests and wills. This act, where individual persons become a people is the real foundation of society.[5] John Rawls Version Like Hobbes, Locke, Rousseau and Kant, Rawls belongs to the social contract tradition. However, Rawls social contract takes a slightly different form from that of previous thinkers. Specifically, Rawls posits that a just social contract is that which we would agree upon if we did not know in advance where we ourselves would end up in the society that we are agreeing to. This condition of ignorance is known as the Original Position. In the original position, no-one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength and the like.[6] Rawls argues that any rational person inhabiting the original position and placing him or herself behind the veil of ignorance can discover the two principles of justice, Rawls has constructed what is perhaps the most abstract version of a social contract theory. It is highly abstract because rather than

demonstrating that we would or even have signed to a contract to establish society, it instead shows us what we must be willing to accept as rational persons in order to be constrained by justice and therefore capable of living in a well ordered society. The principles of justice are more fundamental than the social contract as it has traditionally been conceived. Rather, the principles of justice constrain that contract, and set out the limits of how we can construct society in the first place.[7] Next in this inquiry is the concept of a Constitution. A Constitution, in the modern sense of the term, may be understood in the light of the British Parliamentary tradition that had no notion that a single document could serve as a Constitution and it may, in contrast, be understood in the light of the American Constitutional tradition that has its foundation in a single codified text, which they aptly named as the Constitution of the United States of America. Britain has taught America the core tradition of constitutionalism. The ancient Greek notion of politeia, a plan for a way of life, and the Roman concept of constitutio stand as the distant progenitors of the modern construction of the term.[8] Donald S. Lutz in his book The Origins of American Constitutionalism[9] reasons that while the U.S. Constitution stands at the apex of American tradition, it remains simply another political document unless the people choose to use it in a certain way, as the summary of the political commitments and as the standard by which to assess, develop, and run the political system.[10] He regards the Constitution as a document of political founding or refounding and proceeds to discuss that the term constitution has to do with making or establishing something, giving it legal status, describing the mode or organization, locating sovereignty, establishing limits, and describing fundamental principles.[11] Viewed in the light of the Social Contract Theories, the Constitution may be considered as the Social Contract itself in the sense that is the very basis of the decision to constitute a civil society or State, breathing life to its juridical existence, laying down the framework by which it is to be governed, enumerating and limiting its powers, and declaring certain fundamental rights and principles to be inviolable. On the other hand, the Constitution, as a political document, whether embodied in a single code or scattered in numerous fundamental or organic acts, may be considered as the concrete manifestation or expression of the Social Contract or the decision to abandon the state of nature and organize and found a civil society or State. However, one clarification is in order to avoid confusion or inaccuracy. A common denominator to all the above treatises on the Social Contract is that the social contract to form a civil society is a contract that is theoretically entered into between and among the people themselves. It does not include the State per se as a party. The social contract precedes the very existence of the State and the government. Having preceded the existence of the State and the government, the social contract could not have had the State or the Government as a party. It is therefore inaccurate or even a mistake to regard the State or the Government as a party to the social contract.

Therefore, the dictum in Marcos v. Manglapus[12] that the Constitution, aside from being an allocation of power is also a social contract whereby the people have surrendered their sovereign powers to the State for the common good should not be understood as a social contract between the people and the State or the Government. If it is to be consistent to the original thoughts and conceptions of the great social contract theorists, it must be understood as a social contract between and among the people themselves whereby they have agreed to form a State and surrendered certain powers to the State for the common good. Social Contract Definition: The idea of the social contract is one of the foundations of the American political system. This is the belief that the state only exists to serve the will of the people, and they are the source of all political power enjoyed by the state. They can choose to give or withhold this power. The origin of the term social contract can be found in the writings of Plato. However, English philosopher Thomas Hobbes expanded on the idea when he wrote Leviathan in response to the English Civil War. In this book he wrote that in the earliest days there was no government. Instead, those who were the strongest could take control and use their power at any time over others. Hobbes' theory was that the people mutually agreed to create a state, only giving it enough power to provide protection of their well-being. However, in Hobbes' theory, once the power was given to the state, the people then relinquished any right to that power. In effect, that would be the price of the protection they sought. Jean Jacques Rousseau and John Locke each took the social contract theory one step further. Rousseau wrote The Social Contract, or Principles of Political Right in which he explained that the government is based on the idea of popular sovereignty. Thus the will of the people as a whole gives power and direction to the state. John Locke also based his political writings on the idea of the social contract. He stressed the role of the individual. He also believed that revolution was not just a right but an obligation if the state abused their given power. Obviously these ideas had a huge impact on the Founding Fathers, especially Thomas Jefferson and James Madison. Constitution a social contract By Rick Larsen Perhaps the best way to understand the role of the Constitution is in the context of a contractual relationship between the government and the governed. This is validated by the Preamble to the Constitution which 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 defense, 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. We sometimes need to be reminded that the Constitution was not just an itemization of rights for citizens and limited governmental powers for that earliest generation of Americans, but that it was to secure the Blessings of Liberty to ourselves and our Posterity. It was designed and intended to be no

less of a contract between the people (collectively and individually) and our government today than any other contractual relationship. Strictly defined, and strictly applied, with assurances made to the contractual parties and recourse for violation of those terms. When it is argued that the Constitution is a living document, implication is made that the precepts and principles of the Constitution are not applicable to today and this provides an excuse for all types of scurrilous and specious assertions for expanded government largesse at the expense of our freedom and our money. To say that the Constitution is a living document, hence, not to be taken literally, is akin to asserting that the Ten Commandments are really just Ten Suggestions. It also affords proponents of the living document theory latitude to pick and choose cafeteria-style which rights established by the Constitution are legitimate or applicable today. They like freedom of speech, but not freedom to bear arms, for example. Judicial precedent and daily judicial decisions are judged against the basic principles and rights specified by the Constitution and statute to provide applicability to todays milieu. In that way alone is it a living document? Statute is how the fundamental principles of the Constitution are codified in a changing social structure, but the Constitution provides the baseline. Provision for changing the text of that social contract was made through the amendment process, which has been done 27 times to date. To assert that the words of the Constitution are not binding is absurd, especially when itemized authority of federal governmental powers are assessed individually. The legitimacy of freedoms of speech or right to bear arms are no less legitimate than the clauses that state there are to be three branches of government. The validity of the social contract theory is born out each time a suit or judicial decision upholds those rights assured under the Constitution. Each time a citizen wins a case of free speech, it reestablishes and reaffirms the nature of that social contract between the government and the citizens, individually and collectively. James Madison, regarded as the Father of the Constitution, said, There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations. We have witnessed this over the generations since the founding of the country, and we see that process of silent encroachment of government on the freedom of the people accelerated over the past two years in a way never before witnessed. We see government dictating terms of property ownership, dictating terms of access to health care, dictating terms of energy use and private consumption, for starters. Madison must have anticipated our current form of federal governance when he said, If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one. It appears that the majority in Washington no longer considers the Constitution valid, as they are hell-bent on unlimited government authority over every aspect of our lives.

Historical context is no less crucial in historical methodology than it is in constitutional interpretation. Madison recognized this as well when he said, Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government. The Constitution is not a living document. The Founders were specific in their language and did not mince words. They meant what they said. It was written precisely to prevent the incursion of government into our lives to the extent that we see it occurring today proving it is not an anachronism. It is a social contract to assure and guarantee fundamental freedom and liberty for all generations of Americans. We need to be intimately familiar with it and hold those accountable who seek to subvert the freedoms of those who are intended to have ultimate power in this republic: We the People! In political philosophy the social contract or political contract is a theory or model, originating during the Age of Enlightenment, that typically addresses the questions of the origin of society and the legitimacy of the authority of the state over the individual.[1] Social contract arguments typically posit that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority of the ruler or magistrate (or to the decision of a majority), in exchange for protection of their remaining rights. The question of the relation between natural and legal rights, therefore, is often an aspect of social contract theory. The Social Contract, created by Jean Jacques Rousseau was a book about government reforms and how it should change to suit the people instead of the government. The Philippine Constitution is a Social Contract which embodies the fundamental principles and policies, according to which the Filipino people are governed by the State. The fundamental principles are abstract and as such they cover every aspect of the life of the Filipino people; while the fundamental policies cover specific areas of application of those principles. The fundamental principles remain fixed and permanent, but the policies built upon those principles can be modified or repealed by legislation to suit the needs of the times. Social contract One of the most influential theories of government in the past two hundred years has been the social contract, on which modern democracy and most forms of socialism are founded. The social contract theory holds that governments are created by the people in order to provide for collective needs (such as safety from crime, poverty, illiteracy) that cannot be properly satisfied using purely individual means. Governments thus exist for the purpose of serving the needs and wishes of the people, and their relationship with the people is clearly stipulated in a "social contract" (a constitution and a set of laws) which both the government and the people must abide by. If a majority is unhappy, it may change the social contract. If a minority is unhappy, it may persuade the majority to change the contract, or it may opt out of it by emigration or secession. This theory is based on the idea that all men live in a state of nature which is not ideal to perfect harmony. It is also an agreement among the members of an organized society or between the governed and the government defining and limiting the rights and duties of each. Thomas Hobbes, John Locke, Jean-Jacques Rousseau are three of the most famous

philosophers of contractarianism. Today, natural rights are the basis for many issues involving the constitution and ones right to privacy under the government.