STR Column by Jim Davies, published on October 15, 2010

 
An advocate for the US Constitution recently argued on the Peter Mac Show that any group of people in any locality properly has the right to set up an association and to define its terms. He was correct, of course. The terms agreed would relate to who can belong and who, not--and to how decisions of policy and practice shall be made, as they arise from time to time. All that is closely similar to what enterprisers do when they decide to establish a company or partnership. They might declare that a certain number of ownership shares shall be issued, and subscribe to all or some of them; what the broad business objectives are, and how day to day decisions shall be reached (e.g. by consensus, majority vote, supermajority, etc.)
 
So far, no problem. Anyone buying ownership shares in such a company would be agreeing to those terms of association, and if he didn't like them, he wouldn't buy; and if he did agree and bought some but later changed his mind, he could readily sell them and so leave.
 
Therefore, a business company--or a social or professional club--is an entirely voluntary association. Members can join or leave at will, under the terms unanimously agreed; and if there is not unanimity about those terms (which are quite different from and superior to the day to day decisions about what products to market and how, whom to hire, etc.), then the formation of the company or club doesn't happen. Association requires unanimity about how to go about doing the things that are planned to be done in the future.
 
The guest then applied this principle to America's founders, and he's still right. The four million people living in 1787 in the 13 ex-colonies could have associated any way they wished, and set up whatever forums they wished, to manage any matters in which they felt they had a common interest.
 
However, they would have had to do it unanimously. Otherwise, it would not be a valid association; in part it would be a press-gang. Dissenters would have been forced to join, against their will; sign here, or sail back to King George. Obviously, there is no way that could be a true, binding association. If it was to be a partial association (three million belong, one million do not) that would have been okay, but the three million would have had to accommodate that minority without forcing them to take any action; the activities of their club would have had either to be limited to matters that did not affect it, or else bestow benefits on it for which its members did not pay. That's not impossible, for there are "free riders" today; if in a residential subdivision a social club is formed with facilities for use only by those who join and pay, there is still a benefit to non-joiners in the form of enhanced property values. However, I don't see how anyone could craft a whole, conventional nation that way, in 1787 or since; and in any case nobody tried.
 
So there are a couple of problems, in likening the Constitution to the sort of terms of association that any set of people is properly free to adopt. One is that the record shows that those four million Americans did not agree to its terms unanimously. In fact, those four million were not even consulted. Thirty nine of them (one per hundred thousand) met and proposed the terms of association, and then a few hundred more voted on whether or not to adopt them; perhaps one or two in ten thousand. And even those few hundred were not unanimous; there was a substantial minority (of about a third) opposed. So there was no semblance of a voluntary association by "Them the People" and the analogy between the formation of the United States on the one hand, and the adoption by some group of terms of association for mutual benefit on the other, is 100% false.
 
The second problem is that even if those four million had concluded a valid agreement among themselves, they are all now long dead and whatever they agreed could not possibly bind even their own children, let alone us who are alive today. You and I did not sign-on to the terms of the US Constitution by buying shares in the US of A or by any other means; we (or rather, you; I reached the Planet in another place) just happened to get born here.
 
This Constitutionalist said, no problem; if an American grows up and finds he doesn't like its terms, he can emigrate; as in America, love it or leave it. But that completely invalidates his analogy; on the one hand he suggests the US Constitution is binding because it's what was voluntarily agreed, yet now he is saying you must agree to its terms or leave the country. The analogy breaks down; nobody can renounce a commitment ("sell his shares" as it were) which he never made in the first place. No more than anyone can delegate a power (to rob his neighbor, for example) that he does not possess in the first place.
 
I used to be slightly bothered by this analogy, and have previously denied its applicability on the ground of size; it's okay, I used to say, for a small group to associate for some purpose, even establishing a village with commonly agreed service contractors; but that becomes inapplicable to a large town, a city, state or nation because it's so costly and disruptive to leave it. I was wrong, for there is no objective way to determine the borderline between "small" and "large."
 
The proper basis for its rejection is not size, but unanimity. America doesn't have that, and never did.
 
There's a thought-experiment one might attempt, having reached that conclusion, a "what-if." What if, in 1787, some good fraction of America's four million had said of the proposal to form a "more perfect union," "Hang on! You 39 lawyers and politicians can draft an agreement for us, but to be validly adopted, all four million of us must sign it. And while we're at it, let's check; in each of our 13 states, did all the people in each sign their agreement to the constitutions of the states you are supposedly representing?"
 
Now, that would have been a really good question; and there would have been no answer except "no." The states succeeded the colonies, the machinery of their governments already existed, and their constitutions--their terms of reference--were not formed by unanimous consent but by majority votes. In fact, the example of my own State of New Hampshire suggests a condition of limbo. On January 1, 1776, its "congress" was the first to fire a "Broadside" to announce its independence following the abrupt and prudent departure of its Governor, but that was done by "members of the Congress of the Colony, chosen and appointed by the free suffrages of the people of said Colony and impowered by them..." who "found [them]selves reduced to the necessity of establishing a form of government, to continue during the present unhappy and unnatural conflict with Great Britain..." "Impowered"? "Necessity"? "Free"? Ha! So what exactly was this entity, which was later represented in Philadelphia? Hard to say.
 
So if only Americans had thought clearly in that year, there would not only have been no federal government, but also the existing state governments would have been dissolved--for it's almost as hard to get consensus among a few hundred thousand as it is among four million. Yes, I know, it's asking a lot of people who had only just emerged from the myth that monarchs have some right to rule, and who had just fought and won a hard war, to leap to a radical but accurate conclusion such as was not reached until a century later, by Lysander Spooner. For all that, it's one of history's tragic "might have beens."
 
Better late than never. We can pick up where they left off.