Smith explains Burke’s argument against majority rule and a constitution based on the consent of the governed.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

It is with good reason that my discussion of the ideas of Thomas Paine and Edmund Burke has been more extensive than any other topic I have hitherto covered on Lib​er​tar​i​an​ism​.org. No direct confrontation in the history of political thought has dealt with so many fundamental issues, such as the nature of rights and their proper role in practical politics, the moral foundation of government, and the justification (if any) of resistance and revolution against an established government.

In my last essay I called attention to Paine’s allegation that the much‐​ballyhooed “English Constitution” was a myth. The elements of that supposed constitution, such as charters, legal precedents, and acts of parliament, were the products of the government itself. Only the people, as represented by delegates elected to special “conventions,” could establish legitimate constitutions, and no such thing had ever happened in English history. As Paine put it in Part Two of Rights of Man: “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution, is power without a right.” Thus did Paine call into question the moral legitimacy of the English government.

This is the context in which Paine’s references to the Norman Conquest (1066) should be understood. “Conquest and tyranny transplanted themselves with William the Conqueror from Normandy into England, and the country is yet disfigured with the marks.” Never had the English people been able to participate in a constitutional convention to frame a government for themselves. The power of their government, rooted in conquest rather than in consent, was assumed rather than delegated; and “all assumed power is usurpation.”

The English case stood in stark contrast to America, where the state and federal constitutions were authorized not by legislatures but by special conventions whose delegates were elected by the people. (For a discussion of this distinctively American use of the word “convention,” see Gordon Wood, The Creation of the American Republic, 1776–1787, pp. 306–43.) Government, according to Paine, is a trust; a government possesses no legitimate powers except those that have been specifically delegated to it by the people. It is absurd to suppose that a government can delegate power to itself, yet that was the source of the authority claimed by defenders of the English Constitution. Various charters and declarations of rights in English history were nothing more than agreements among rulers as to how to divide and distribute illegitimate powers among themselves. Whatever else may be said about the so‐​called English Constitution, in the final analysis “it has undoubtedly been the most productive machine of taxation that was ever invented.

Contrary to Burke’s position, according to which the English Constitution was grounded in a type of irrevocable compact between the people and their government, Paine maintained that a proper constitution is based on a social compact (or contract) among the people themselves, and that only after that agreement has been made do the people create a government, delegating certain powers to it in the form of a trust. The political implications of these conflicting views differed profoundly.

In Burke’s conception of a social compact (the essentials of which had a long provenance in Roman law and medieval political thought), a bilateral agreement between the people and their government may be dissolved only with the agreement of both parties–whereas in Paine’s conception of a social compact (which was essentially Lockean, though it did not originate with Locke), the people themselves may decide to dissolve their current government and institute a new government in its place. Needless to say, Paine’s version of the social compact made popular revolutions far easier to justify than anything found in Burke, for rare indeed is a government that will agree to its own extinction.

We now come to how Paine applied his theory of the social compact to the French Revolution, and how Burke criticized Paine’s argument.

In Part One of Rights of Man (February 1791), Paine said the following about the French National Assembly:

The present National Assembly of France is, strictly speaking, the personal social compact.–The members of it are the delegates of the nation in its original character; future assemblies will be the delegates of the nation in its organized character. The authority of the present Assembly is different to what the authority of future Assemblies will be. The authority of the present one is to form a constitution; the authority of future Assemblies will be to legislate according to the principles and forms prescribed in that constitution; and if experience should hereafter show that alterations, amendments, or additions are necessary, the constitution will point out the mode by which such things shall be done, and not leave it to the discretionary power of the future government.

Burke, in An Appeal from the New to the Old Whigs (August 1791) attacked Paine’s argument on two fronts. First, the National Assembly was never authorized by the people to frame a new constitution for France. Rather, that body began as deputies for the Third Estate–one of three orders, along with the nobility and clergy–when Louis XVI convened an Estates‐​General in May 1789. Those commoners who elected delegates to represent them in the Estates‐​General never authorized their deputies to draft and ratify a new constitution. That power was assumed, not delegated, when the deputies for the Third Estate declared themselves the National Assembly on June 17, and assigned to themselves the task of framing a new constitution. According to Burke, this option was never even presented to the voters, much less approved by them; and few voters from the Third Estate would have sanctioned the overthrow of the Old Regime even if they had been presented with that option. That body which christened itself the sovereign National Assembly was nothing more than a renegade faction of the Estates‐​General, a faction that did not meet Paine’s own standards for a legitimate constitutional convention. Without going into the historical complexities involved here, suffice it to say that Burke had a strong case.

The second part of Burke’s attack was theoretical and therefore broader in scope than his criticism of the National Assembly. Indeed, this aspect of Burke’s critique cut to the heart of the Lockean notion of a social compact. Burke began by asking a fundamental question: What do we mean when we speak of “the people”? Although this term is frequently used to signify a majority that exercises “supreme authority” in civil society, this usage is based on a legal fiction; specifically, it is based on the notion of individuals who have incorporated themselves into a single, unified political body. Burke wrote:

In a state of rude nature there is no such thing as a people. A number of men in themselves have no collective capacity. The idea of a people is the idea of a corporation. It is wholly artificial; and made like all other legal fictions by common agreement. What the particular nature of that agreement was, is collected from the form into which the particular society has been cast. Any other is not their covenant. When men, therefore, break up the original compact or agreement which gives its corporate form and capacity to a state, they are no longer a people; they have no longer a corporate existence; they have no longer a legal coactive force to bind within, nor a claim to be recognized abroad. They are a number of vague loose individuals, and nothing more. With them all is to begin again. Alas! they little know how many a weary step is to be taken before they can form themselves into a mass, which has a true politic personality.

If, as Paine argued, the people create a government through the mechanism of a constitution, then (in accordance with the Lockean version of a social compact) they must first agree unanimously to incorporate themselves into a political body that is thereafter governed by majority rule. Without this foundation of unanimous consent, “there can be no such thing as majority or minority; or power in any one person to bind another.” As Locke himself conceded, no one may be compelled to abandon the state of nature and obey the will of the majority in political decision making. Thus, according to Burke, no constitution ratified by a majority of the people may be deemed legitimate unless every individual under the jurisdiction of that constitution has previously agreed to become a member of that civil society called “the people.” Only this prior consent can morally obligate individuals to obey the will of the majority. Therefore, according to Burke, Paine’s notion of a constitution based on the consent of the governed “must be grounded on two assumptions; first, that of an incorporation produced by unanimity; and secondly, an unanimous agreement, that the act of a mere majority (say of one) shall pass with them and with others as the act of the whole.”

Having taken Lockean social contract theorists at their word, Burke had no problem demonstrating that the Paineite defenders of the French Revolution failed to fulfill their own criteria for a legitimate constitution. A revolution, by dissolving the current government, places individuals in a state of nature–a condition in which they may refuse to incorporate themselves once again into a civil society and so have no moral obligation to obey the will of the majority. After a revolution, the process of incorporation that creates “the people” (in a legal sense) must begin anew, and a new civil society, in the Lockean scheme, requires the consent of every member who is to be governed by the majority. Thus a constitution, even if it is directly ratified by a majority of the people, cannot bind individuals who never agreed to become members of that civil society in the first place.

Of course, Burke intended his critical analysis of majority rule to apply to more than the French Revolution and its defenders. Burke’s attack was meant to undermine the very foundation of Lockean social contract theory by showing that it is unable to rescue us from the anarchical state of nature. Like previous critics of political individualism, Burke maintained that those philosophers who begin with natural rights in a state of nature are forever doomed, theoretically speaking, to remain in that anarchistic condition, because the requirement of unanimous consent has never been met—whether in France, America, or any other country. By Lockean standards, therefore, no government in history was or is legitimate.

Ironically perhaps, Burke’s argument bears an uncanny resemblance to the argument later presented by Lysander Spooner in No Treason: The Constitution of No Authority. But whereas Burke invoked the radical implications of consent theory as a reason to reject the theory, Spooner embraced both the theory and its radical implications. But that is a topic for another discussion.