Government as Coercive Power and Its Limitation and Regulation by the Constitution as a Social Contract Based on Equality
What distinguishes moral philosophy as it applies to political philosophy is that government is communal and it concerns primarily the use of coercive power. Taxation is essentially a coercive power. In addition, one of the purposes of government is to ensure social order and thus remove individuals from an escalating cycle of personal revenge. Government, in one view, can be considered a monopoly of coercive power (Weber [1921] 1964, 154). The problem then becomes not only the moral authority of government, but also the limitation and regulation of its coercive power.
One of the strengths of what historian Adrienne Koch called the great collaboration between Jefferson and Madison was that between them they had a balanced appreciation of both the possibilities and the limitations of human nature and our capacity for self-government (Koch 1964). The political philosophy which underlies the founding documents thus reflects a concern for both the moral foundations of government and for the limitation and regulation of governmental power. The Constitution, which incorporates this political philosophy, was perceived to be a social contract, a fundamental law of the land which was ordained and ratified by the people. The concept of government as a social contract, however, has not always led to the limitation and regulation of governmental power.
Writing at the time of the Puritan Revolution and civil war, Thomas Hobbes (1588–1679) had argued in Leviathan (1651) that sovereignty is not based on divine right or even a summum bonum, a highest good, but on the ability and power to establish order. Whatever “Mortall God” could impose order on man’s natural state of “warre of every man against every man” had and deserved the implied sovereignty of the people. This “Mortall God” could also define justice and law where previously there had been none. In the state of nature, as perceived by Hobbes, all persons are equal in that they fear a violent death and they are all not only capable of killing one another but are also free to do so. With such a pessimistic view of human nature, Hobbes had the state establish order (chap. 13). In contrast, Jean Jacques Rousseau (1712–1778), writing at a time prior to the French Revolution, had an ambiguous but optimistic view of humanity in a state of nature. Theories based on his writings would later attempt to have the state also define morality, not by simple imposition but by associating it with the concept of the general will. Revolutionary movements in continental Europe—from aspects of the French Revolution to the Russian Revolution, from Communism to Fascism—were based on such unlimited concepts of all order and morality being defined by the state.
John Locke (1632–1704) had a more moderate concept of humanity in the state of nature, and therefore a more moderate concept of the social contract and the role of government. He considered individual rights to precede the formation of government. He reasoned from that premise that society could place limits on the coercive powers of government or even change the government by revolution for good cause. The concept of a social contract as the authority for government served Locke’s purposes well. By placing all sovereignty in the people, rather than relying on a constitutional tradition of mixed government that included the king, Locke was able to provide a rational foundation for government by consent, parliamentary supremacy, and the Glorious Revolution of 1688.
Thomas Paine, in Common Sense (1776), also used the concept of the social contract. He felt that the mutual benefits and concerns of society in a state of nature preceded government. He also recognized government as a coercive power, however, and he wrote that “Government, even in its best state, is a necessary evil, in its worse state, an intolerable one” (Paine [1776] 1982, 65). Before Paine, the thirteen colonies had focused their grievances mainly on England’s Parliament. The Parliament had both violated traditional principles of constitutional law and denied the colonies representation which stood for the concept of self-government. In addition, Paine attacked the king, the whole concept of monarchy, and thus solidarity with England. Locke’s arguments for legitimate revolution and popular sovereignty were now brought to bear against the whole government of England, both the Parliament and the king. Paine argued for declaring independence and called for a “Continental Conference” to form a “Charter of the United Colonies.” “But where, say some, is the King of America?”, he wrote, and he answered, “...that so far as we approve of monarchy, that in America THE LAW IS KING” (Paine [1776] 1982, 96–98). American government was to be constitutional, or in the words of Chief Justice John Marshall in Marbury v. Madision (1803), “a government of laws, and not of men.” Government was to represent the people not just in theory; it was to be accountable to a fundamental law of the land ordained and ratified by the people and to a democratic process.
The American development of constitutional democracy formally combined the earlier medieval English concept of government as limited by law and the concept of government by consent. Our constitution was originally perceived to have moral authority both because it contained “higher law” concepts of freedom, equality, and justice and because it was ordained and ratified by the people (Corwin 1955,4). Because the sovereignty of the people was formally expressed in a written constitution and the supreme Court was given a power of judicial review, neither parliamentary supremacy nor monarchy established themselves in the United States. Through a constitutional process certain principles and values were placed even beyond the reach of transient legislative majorities. It is our Constitution that both limits and divides governmental power and gives it political accountability on the basis of several aspects of equality.