A Little History 

“The past is but the beginning of a beginning, and all that is and has been is but the twilight of the dawn.”

 H. G. Wells

Our founders established the United States government by social contract, following the lead of the states by including preambles or articles outlining the genesis of the only legitimate source of government power – the people. These state and federal contracts hold that powers not granted are retained by the states, or by the people. As with every valid contract, these contracts include sanctions for nonperformance. ‘We the people’ have the right to take back the powers we granted. This is not very practical, but it is our right nonetheless. It can also be said that we have the right to exercise the powers we reserved – a far more practical approach to improving the way we govern ourselves.

 In the past decade, the Supreme Court has revitalized the Tenth Amendment, granting its protections of state sovereignty by striking down federal laws commanding obligations of state and local governments on issues as diverse as handgun control, waste disposal, timber exportation and child protection. In New York v. United States, 505 U.S. 144 (1992), a waste disposal case, Justice Sandra Day O’Connor delivered the opinion of the Court, which reads in part:

 “...and while the Tenth Amendment makes explicit that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," the task of ascertaining the constitutional line between federal and state power has given rise to many of the Court's most difficult and celebrated cases.”

If this is true, as the Supreme Court maintains, then the people retain the right to government by contract. Why, then, do we limit ourselves to state and federal contracts?  Is there a place where the people can exercise their reserved power rights of government by contract without a) the need for government action, and b) causing the disruption or destruction of our government institutions? Would adding a new social contract to our system of government improve the way we govern ourselves? The answer is yes.  

Exercising unused reserved powers to govern ourselves by contract has the potential of delivering new liberties to the American people. For the first time in two hundred and twenty five years, America is at the dawn of another beginning – if the American people have the will to think and act like the Founding Fathers. 

When we look back at the founding of this country, we see that it was, indeed, the beginning of a beginning. Colonists, absent royal titles passed around by the British Crown, came together with a vision of self-governance. For the first time in human history, people, not kings or tyrants or warlords, but people in need of a way to govern themselves, came together with a vision that all legitimate government power originated from them, as individuals, and that this power was a direct gift from God. Only individuals, collectively, could give away some, but not all, of this power to create legitimate government. Without this consent, the power of kings and tyrants and other forms of government were not legitimate, according to our colonial Founding Fathers.

Having a great idea is one thing – putting it into practice is entirely another. How does a body of individuals give away some of its powers while holding onto those powers it chooses to retain?  For roughly 150 years prior to the 1760s, the American colonies adopted much of English common law, and in particular contract law, as it related to the affairs of commerce. Although subjects of the Crown, the American colonies had a lengthy history of some 150 years of self-government, making their own tax laws, printing money and raising government revenues.

All this changed when King George III came to power in 1760. His view of the colonies was simple; they were a source of raw materials and little else. His views and heavy-handedness in dealing with the colonists were in large part responsible for igniting the fuse that ultimately led to the American Revolution.

As the colonists looked to establish governments, both state and federal, applying the principals of contract law to newly formed governments was a natural extension of existing self-government practices. The creators of the 13 original states (with the exception of Massachusetts) in their collective effort to create a federal government believed that the best way to ensure compliance and guidance in the formation of these government entities was by creating a contract that outlined specific performance and general guidelines.

By declaring that the governmental legitimacy granted in these contracts originated from the people, and that those powers not granted were retained by the states, or by the people, the creators of these contracts ensured that the real power remained in the hands of the people who consented to being governed. As a result, collectively as Americans, we are passively sitting on a huge base of unused reserved power granted to us by our Founding Fathers.

Nowhere, in any of our founding federal and state constitutions, or lower level government entities created since our Founding, did the people give away our power to government by contract. In fact, government by contract is fundamental to our method of self-governance. When there is a dispute regarding one of these contracts, we look to the courts to settle the issue. As a people, and as a nation, we have more than 200 years of experience governing ourselves by contract with judicial oversight.

If ‘We the People’ choose to add another contract that fits within the existing framework of our state and national constitutions, doing so is our right. It is a right guaranteed by our Constitution and granted us through the wisdom of our Founding Fathers. To say otherwise shatters the fundamental principles of our state and federal constitutions and destroys the very foundations from which this great nation was built.