Social Compact Basics

For the Constitutionalists, the (1) “absolute necessity of legal government” stemmed from its ability to “prevent Anarchy and Confusion” and ward off “the destructive nature of Tyranny and lawless power.” It alone enabled man to “emerge from the state of Nature” and escape the constant dangers wrought by human deficiency and weakness (SB, 374; PP, 88, 93).Footnote ¹⁶ The Constitutionalists’ religious heritage contributed to this particularly dire state of nature narrative, for Puritanism emphasized the government's divine role in warding off the selfish actions of a fallen man, while Congregationalism stressed its earthly role in securing the conditions necessary to retain God-given liberty despite man's near-total depravity (Kuehne Reference Kuehne1996, 41, 92–3; Hammett Reference Hammett1976a, 220–1, 24; Williams Reference Williams, Hyneman and Lutz1983, 6).

Like the Levelers and the Whigs before them, the Constitutionalists concluded that (2) “the people are the fountain of power,” by denying any other possible source (PP, 90). Here, “power” refers to moral power, the right to use force in accordance with natural law or right. In the political context, this power translated to the right to make and enforce law, and to protect society more generally (Bailyn Reference Bailyn1992, 55–93; Simmons Reference Simmons1993, 60; White Reference White1978, 187–95). While the laws of nature and human behavior make government necessary, they do not assign authority to any particular person or group (SB, 375). Thus, the only source of moral power available is the rights or liberties individuals hold over themselves in a state of nature.

If power comes from the people, how can a government come to hold or wield it? The Constitutionalists claimed (3) that individuals transfer or entrust some of their natural rights and liberties to government through a series of consensual actions. As Allen explains, “Government is founded in Compact so it Origenates in the people” (SB, 375; V, 522).Footnote ¹⁷ The specifics of this transfer beg further discussion, for the different strains of social contract theory available to the Constitutionalists depict it differently. We can divide these into two types: early contractualism and simple contractualism.

Early contractualism describes a three-stage process culminating in a mutual arrangement between ruler and ruled, in which the ruled transfer power in the form of obedience and allegiance to a ruler in exchange for protection and order. Pufendorf provides a seminal description of this process: first, individuals create a “single and perpetual group” of united “wills and strengths” through the Compact of Civil Society; second, the majority of civil society agrees “upon the form of government” in the Decree of Form; and third, rulers recognize the liberties of the people and “bind themselves to the care of the commons security and safety, and the rest to render them obedience” in the Compact of Submission (Pufendorf Reference Pufendorf, Oldfather and Oldfather1934, 974–5).Footnote ¹⁸

The compact of submission resembles a legal contract, for it involves two separate parties exchanging one thing for another and binding themselves to specific performances. The compact of civil society is considered perpetual, and the decree of form treated as a separate event. This shielded institutions of government such as representative bodies in mixed constitutional regimes from the demise and recreation of compacts of submission, an effect heighted by situating the first two steps of the process in the distant and mythical past (Morgan Reference Morgan1988, 94–121; Ward Reference Ward2004, 109–13, 265–8; Zook Reference Zook1999, 161–4).

While traditionally the King's coronation oath and the people's acquiescence were taken to be the compact of submission, by the 1770s many colonists identified it with the charters of their colonies (Lutz Reference Lutz1988, 35–49; Massachusetts House of Representatives 1768). These “charters as compacts,” and early contractualism more generally, became critical to revolutionaries after their refusal to accept virtual representation came to its inevitable conclusion: since the British Parliament had no authority over the colonies (the Decree of Form had deteriorated), the charters were the sole legal connection with the metropole.Footnote ¹⁹ This explains the near exclusive focus on royal misbehavior in the Declaration of Independence and the surrounding debate, for justifying the revolution entailed showing that the King's repeated violations of the charter severed this final link (Morgan Reference Morgan1988, 243–5; Tate Reference Tate1965, 377; Wood Reference Wood1998, 270–1, 82).

However, when it came to founding new governments, early contractualism offered little help. The compact of submission broke down when representative institutions replaced independent magistrates as primary power holders (Wood Reference Wood1998, 283). Representatives were members of the people, and thus explaining obedience as the result of a compact between two separate parties became conceptually incoherent. In addition, Americans during the revolution were intent on creating something new, which meant unsettling institutional arrangements rather than falling back on them. This rendered early contractualism far less relevant, for it focused on protecting the rights and liberties of Englishmen by emphasizing the historic and unchangeable foundations of all legitimate forms of government (Tate Reference Tate1965, 386).

The Berkshire Constitutionalists thus relied on simple contractualism, of which Locke is the central theorist. Simple contractualism presents a two-stage story.Footnote ²⁰ First, individuals create a civil society through mutual compact. Second, this society creates an empowered government.Footnote ²¹ At each stage, two rights or powers are transferred or entrusted to the newly created entity: the power to preserve oneself within the bounds of natural law and the power to punish those who violate this law (Locke Reference Locke and Laslett2002, II.128). The combination of these two rights constitutes political power and rightful authority (Locke Reference Locke and Laslett2002, II.171).Footnote ²²

The Constitutionalists’ arguments not only track simple contractualism, but also referenced writers in the tradition. Allen cites: the self-described Lockean Richard Price; an 18th century radical Whig pamphlet comprised of restatements and excerpts of the Two Treatises; and Philip Furneaux's Lockean critique of Blackstone (SB, 376; The Judgment 1713; V, 522, 526).Footnote ²³ Further, William Whiting, a discontented former member of the Constitutionalists, attempted to convince them to reopen the courts by claiming that Allen misinterpreted “the great Mr. Locke” (Whiting Reference Whiting, Hyneman and Lutz1983, 462). That Whiting, who knew Allen and eventually rejoined the Constitutionalists, thought this was an effective means of persuasion attests to the significance of Lockean ideas.

One additional feature of simple contractualism bears mentioning: different voting thresholds apply to each stage. The creation of civil society employs a unanimity threshold, for only individual consent can remove a person from the state of nature. However, this consent entails agreeing to “submit to the determination of the majority.” The majority, then, is the sole means through which civil society can act prior to the creation of government (Locke Reference Locke and Laslett2002, II.96–9). From this, we can restate the third component of the Constitutionalists’ argument: (3) only the majority of civil society is capable of creating an authoritative government.

The Necessity of a Constitution

The Constitutionalists’ next claim, that (4) the first step in forming a government is to create a constitution, implies that authoritative nonconstitutional government is impossible.Footnote ²⁴ They used this logic to justify their protest of the provisional government. For them, the Declaration of Independence formally eliminated any vestige of authority that the revamped charter still possessed. Government did not exist in Massachusetts, and would not exist until the majority adopted a constitution (Allen Reference Allen and Handlin1966a).

Allen reached these conclusions by equating the second Lockean compact with the creation of a constitution. Massachusetts was thus in a preconstitutional state of civil society where all members were bound only to the will of the majority. Obligations to constituted authority simply did not exist (V, 521). Further, since the provisional government claimed a right to rule without a constitution and made laws without authority, the Constitutionalists could rightfully oppose it. As Locke notes about such usurpers, “the people are not therefore bound to obey,” and moreover are able “to resist the force of those, who without Authority would impose any things upon them” (Locke Reference Locke and Laslett2002, II.212).Footnote ²⁵ These conclusions were not automatic. Simple contractualism is vague about practical application and silent when it comes to the creation and function of a constitution (Morgan Reference Morgan1988, 256; Tate Reference Tate1965, 379). This means that in interpreting and applying Locke, the Constitutionalists created something new. It also meant that competing interpretations were possible.Footnote ²⁶

For instance, Whiting made an opposing argument by exploiting Locke's ambiguous remarks about the workings of civil society between the two compacts (Whiting Reference Whiting, Hyneman and Lutz1983, 467). Locke claims that after the first compact, rather than creating a government, the majority can act as a limited direct democracy, “making Laws for the Community from time to time, and Executing those Laws by Officers of their own appointing” (Locke Reference Locke and Laslett2002, II.132). Whiting endorses this position, but expands it far beyond the nongovernmental form of direct democracy that Locke seems to have in mind. According to Whiting, the majority in Massachusetts adopted “whatever modes and forms therefore, they had been accustomed to from the old charter, and still found would be useful and expedient for a free and independent society” (Whiting Reference Whiting, Hyneman and Lutz1983, 472). This reauthorized a charter-based government, making all members of civil-society obliged to obey the provisional authorities.

To explain authorization without direct consent, Whiting follows the logic of early contractualism, stressing acquiescence and the lasting legitimacy of government institutions apart from the monarchy. He suggests that the use of the revised charter and the elections of legislatures counted as majority acceptance from which consent can be imputed, for these activities require the majority taking action, giving consent, or at least not resisting. Thus, not only is nonconstitutional government possible, but it existed in the Commonwealth and commanded everyone's obedience (Whiting Reference Whiting, Hyneman and Lutz1983, 478, 67).

The Constitutionalists could not accept these claims for two key reasons. First, they denounced the possibility of consent via acquiescence being used to establish a new government.Footnote ²⁷ If the provisional government continued to usurp the majority's political power this would not somehow render it morally legitimate in their eyes, even if this went unnoticed by most. The provisional government did not receive authorization directly and could not be plausibly construed as an instrument of direct majoritarian rule. Second, the Constitutionalists ascribed two roles to a constitution that Whiting did not share, both of which marked a further extension of Locke's theories. A constitution both provides “a sacred Barrier against Tyranny and Despotism,” and “is the Basis and ground work of Legislation” (SB, 375).

The barrier conception stemmed from the Constitutionalist's belief in the corrupting effects of political power. As mentioned, they held the state of nature to be execrable because man, by his nature, is deficient and weak. Government was necessary because it alone protected men from “Anarchy and Confusion.” However, government alone provided insufficient protection, for men may “use all manner of Deceit and Craft” (PP, 89) and there is a “strong Byass of human Nature to Tyranny and Despotism” (Handlin Reference Handlin1966b, 71). In other words, power could corrupt officials and transform them into tyrants. This was no hypothetical possibility, for the Constitutionalists and their ancestors witnessed a variety of political actors undergo this transformation, leading them to conclude that “Tyranny Triumps thro’ the world” (Allen Reference Allen and Handlin1966b, 62).Footnote ²⁸ In the face of such potential tyranny, the Constitutionalists sought relief in a constitution. “We have Nothing else in View,” Allen writes, “but to provide for Posterity against the wanton Exercise of power which cannot otherwise be don than by the formation of a fundamental constitution,” which secures “sacred Rights and Immunities against all Tyrants that my spring up” (PP, 91–2).

The constitutionalists never directly explain how a constitution prevents tyranny or despotism, but their reasoning seems to be the following. Arguments such as Whiting's, in which political power is vested in representative governments without a constitution, rely on informal rules, habitual institutions, and the good behavior of politicans to prevent despotism. For instance, to combat the Constitutionalist's claims that wicked men in the Commonwealth intended to enslave the people, Whiting argues that this is impossible, for Councilors and Representatives take oaths “to be true to the people of the state” and elected politicians make good decisions because “they are sufficiently apprized that if they do not. . .they will not be elected themselves again” (Whiting Reference Whiting, Hyneman and Lutz1983, 471).

For the Constitutionalists, these sorts of reassurances were laughable. As the behavior of the British Parliament and local councilors showed, corrupted leaders break informal rules and traditions, violate oaths, alter or postpone elections, and create new legislation to advance their interests. Such behavior cannot be stopped because the people in civil society and a nonconstitutional government are in a state of nature with one another; no common authority exists between them to patrol and punish misbehavior. A constitution solves this problem by being above the purview of government officials, organizing and constraining them in a visible manner by making public the conditions of their trust and the limits of their power, and clarifying the means of resolution for the inevitable conflicts that power produces.Footnote ²⁹ It makes it “peculiarly out of the Power of Designing men to Enroach on the Inherent and Unalienable rights of the People,” serves as “Lines...Drawn as rules of Government,” and makes “the Servants of the People. . .as much as may be in the Possession of the People” (Handlin Reference Handlin1966b, 418).

Civil society thus endangers itself whenever it grants power to a government without such a device, for “whatever Building is reared without a foundation must fall into Ruins” (PP, 91). In an essay quoted by Allen, Price expresses similar sentiments, noting that political power is “delegation for gaining particular ends,” and that because “this trust may be misapplied and abused. . .employed to defeat the very ends for which it was instituted, and to subvert the very rights it ought to protect. . .all delegated power must be subordinate and limited” (Price Reference Price and Thomas1991, 28). For the Constitutionalists, such subordination and limitation required a constitution. Thus, in addition to the limits on government proposed by Locke, the necessity of consent and natural law, the Constitutionalists posited another: the constitution or second compact itself.

A constitution's second role is to be “the Basis and ground work of Legislation.” Allen explains that, “Legislators stand on this foundation, and enact Laws agreeably to it.” In other words, the entire legal and political system draws its authority from the constitution. At first glance, this simply expresses the distinction between higher and ordinary law that allows constitutions to serve as a barrier against tyranny. However, the Constitutionalists are also asserting that legislators owe their existence to the Constitution, because without one there would be no reason to have government. Individuals form civil society and government in order to create a means of living together and resolving conflict. A nonconstitutional government lacks justification because it simply creates another source of conflict without resolution, this time between the people and government.

The Constitutionalists’ own fight with the General Court illustrates this scenario, for it was a protracted conflict over the proper source of government authority with no common judge to resolve the dispute. Again, adopting a constitution helps avoid such situations by setting out public bounds of authority and institutionalizing mechanisms of dispute resolution. In this sense, all governmental authority comes from the constitution. As Allen's citation of The Judgment of Whole Kingdoms explains: “Every subjects allegiance is first oweing to the Constitution and to the Ruler only in the fource and virtue of what Every member of the Political society is Bound unto by the Terms of the Original pact or settlement” (V, 522).

Because there was no constitution, legitimate government did not exist in Massachusetts. By refusing to reopen the courts the Constitutionalists did not rebel, but instead ignored a usurping authority. An authoritative government used political power entrusted to it by the major part of civil society, with the terms of this trust codified in a constitution. As the Constitutionalists explain, (4) “the first step to be taken by a people in such a state for the Enjoyment or Restoration of Civil Government amongst them, is the formation of a fundamental constitution,” and until then the people “are but beating the Air and doing what will and must be undone afterwards” (PP, 90–1).

Authorization and Agency

However, constituent power theories confront a problem: creating a constitution requires writing one, and it is unclear how civil society can do this. The most obvious solution, having every member directly take part, is impossible for all but the smallest communities. Thus, alternative ways to combine popularly held constituent power with the process of constitution-making must be found. Several exist.

An individual or group can write and enact the constitution, and somehow identify its actions with the will of the majority. For instance, construing constituent power as something that can be entrusted or delegated enables principal-agent dynamics. The people temporarily entrust their constituent power to a group of elected delegates who write the constitution at the people's behest. Alternately, Sieyès conceptualized constituent power as noncommunicable, but bypassed the problem of direct authorship though a conception of extraordinary representation, in which special representatives embody and become identical to, rather than represent, the will of the people during constitution-making (Sieyès Reference Sieyès and Sonenscher2003, 139). Another solution involves a Rousseauian or Platonic Lawgiver with the extraordinary ability to create a constitution that so perfectly aligns with the nascent will of the people that its creation can be attributed to them.

These options place emphasis on the identity of the framers and the nature of the drafting process, with the idea that only the right sort of framers in the right conditions can embody the majority will. By doing so, these and similar solutions depict constitution-making as a single unbroken procedure undertaken by the constituent power.

The Berkshire Constitutionalists introduced a different approach: they divide constitution-making into drafting and authorization stages, with authorization, the approval or rejection of the draft constitution, being the sole site of constituent power. This deemphasizes drafting and the identity of the framers as a source of authority, and elevates the importance of the ratifiers’ actions instead. For Allen, when it comes to constituent power, what matters is who gets to approve the constitution, not who writes it. The key moment is “the Approbation of the Majority” (PP, 90). Thus, (5) the people “create” their constitution when they ratify it.

This completes the Constitutionalists’ general argument for popular ratification. Only the people can create legitimate government, which means creating a constitution, and constituent power is only exercised during the authorization process. Thus, the people must have the opportunity to approve or reject the constitution before implementation, for it is at this stage that they act and mark the constitution as their creation.

However, demanding that the people ratify does not specify a particular procedure. Constituent power might be exercised directly or through authorized legislatures or special ratifying conventions. The Constitutionalists’ next claim eliminates any ambiguity by denying the permissibility of all forms of ratification other than a direct popular vote, i.e., a referendum.Footnote ³¹ Allen explains:

This and similar passages contain two entangled arguments. The first attacks the possibility of existing legislative bodies ratifying a constitution. According to the Constitutionalists, such a plan circulated as early as mid-1776 and was “the rankest kind of Toryism, the self same Monster we are now fighting against” (PP, 90–1).

The Constitutionalists’ argument is a slight reformulation of the familiar claim that a constituted body cannot constitute itself. On the one hand, like any organ of government, legislative bodies receive their power and authority from the people. However, political power can only rightfully be given to governments organized and limited by formal rules laid out in a constitution. Since constitution-making events take place in the absence of an operable constitution, any existing body of government lacks ordinary authority, let alone the extraordinary power to create a constitution. “A Legal Representative is a Creature of the Constitution of a state, or Kingdom,” Hampshire County Towns explain, and “we Desire to know how such a Creature can Exist in a Legal Sense prior to that Constitution on which his being and Existance Depends” (Handlin Reference Handlin1966b, 385).

On the other hand, creating a constitution involves creating the source of authority for government. Therefore, a government entity cannot create the constitution because this would be creating its own creator, authorizing the source of its own authority. As Allen notes, “the whole Legislature of any state is insufficient to give Life to the fundamental Constitution of such state, it being the foundation on which they themselves stand and from which alone the Legislature derives its Authority” (SB, 377).

An Unalienable Right

The second argument for confining constituent power to referenda is wider reaching. The Constitutionalists claim that constituent power cannot be delegated or entrusted, that (6) the right to create a constitution by authorization, the right to ratify, is unalienable.

They first discuss unalienability in the following passage:

Here, Allen mentions three unalienable rights: the right of religious belief (inner worship); the right of religious practice (external worship); and the right to be determined by the majority in the institution or formation of government, which can be restated as the right to ratify.

To clarify, a right is unalienable if it cannot voluntary be given away or exchanged by its owner. This is different than a right being nonforfeitable or imprescriptible, though unalienable rights might overlap with both (Pufendorf Reference Pufendorf, Oldfather and Behme2009, 91, 221; Tuck Reference Tuck1979, 25; White Reference White1978, 186–92). To say that the right to ratify is unalienable is to claim that civil society cannot transfer its morally sanctioned ability to approve or reject a constitution.

Looking at the rights literature of the time helps clarify the substance of the Constitutionalists’ position. According to Hutcheson, the originator of the alienable/unalienable distinction, one must consider two things when determining if a right is alienable: “1st. If the Alienation be within our natural Power, so that it be possible for us in Fact to transfer our Right; and if it be so, then, 2nd. It must appear that to transfer such Rights may serve some valuable Purpose” (Hutcheson Reference Hutcheson1775, 185; White Reference White1978, 196–202). Using this distinction, we can divide unalienable rights into two types: naturally unalienable and morally unalienable.

A right is naturally unalienable if it concerns an ability that a person cannot physically transfer to another. Hutcheson gives the example of the right to private judgment, which he claims occurs automatically in the mind in response to external stimuli. This right is naturally unalienable because individuals cannot give another person the ability to make judgments for them, let alone transfer the right to do so. The discourse on religion in late 18th century Massachusetts contains similar arguments. For instance, the Congregationalist Pastor Abraham Williams notes that “Human Law can't control the Mind.—The Rights of Conscience are unalienable; inseparable from our Nature; —they ought not—they cannot possible be given up to Society” (Williams Reference Williams, Hyneman and Lutz1983, 8).

Natural unalienability explains the Constitutionalists’ treatment of the right to worship as unalienable, for a person cannot give another the ability to dictate their faith and religious belief. However, it does not explain the right to ratification or external worship, for there is nothing physically impossible about their alienation.

A right is morally unalienable if it is possible for a person to alienate the activity or object in question, but not without violating moral law. Two variations exist: nonownership moral unalienability and no-reason moral unalienability. A right that we do not possess is nonownership morally unalienable. For instance, a person might be able to x but be unable to transfer the right to do x because he does not possess it. Locke uses nonownership unalienability to explain the moral impossibility of voluntary enslavement or submission to absolute rule. Both, he argues, involve alienating the right to destroy our lives, which only God possesses (Simmons Reference Simmons1993, 115–6; White Reference White1978, 210).Footnote ³² “Nobody can give more power than he has himself, and he that cannot [morally] take away his own life cannot give another power over it” (Locke Reference Locke and Laslett2002, II.23).

Nonownership moral unalienability clearly does not explain the right to practice religion as one chooses, but what about the right to ratification? One tempting argument is the following: the majority cannot alienate the right to ratify because civil society possesses it. However, this makes the mistake of treating the majority as a distinct agent separate from civil society, rather than as the sole means through which, as agreed upon in the first compact, civil society can take action. For the Constitutionalists, civil society taking an action meant the use of a majoritarian procedure; the two were inseparable.

This leaves us with no-reason moral unalienability, which applies when alienation is always irrational, i.e., when the reasons against alienating a right necessarily win out over those in favor. This conception is a descendant of the Grotian idea of interpretive charity seized upon by English Radicals in the 17th century, whom argued that while it is logically possible for free men to renounce all of their natural rights, charity dictates that we assume our predecessors were rational, and therefore could not have intended to leave themselves and future generations without any critical rights (Tuck Reference Tuck1979, 143–52). Moving from early to simple contractualism eliminates the focus on the original compact and the ancient constitution, turning the principle of interpretive charity into a general form of unalienability that, I argue, best explains the right of ratification. Here, the irrationality of alienating certain rights is treated as a defeating condition, like fraud or insanity, the presence of which automatically voids a contract, or in this case any attempt at alienation.

What does it mean to say that certain rights always lack sufficient reasons for alienation? Alienating a right, taken on its own, has a negative effect on its holder. Rational rights holders, then, only alienate a right if doing so, in some way, is to their benefit. Thus, Allen explains that, “alienable [rights] may be delegated for the Common good, or those which are for the common good to be parted with.” Since Allen is referring explicitly to a right held by civil society, the good of which is the “common good,” we can define alienable rights as those rights the alienation of which can benefit the wellbeing of their holder, for these are rights for which good reasons might exist for alienation. To say that a right always lacks sufficient reasons for alienation means that alienating it can never benefit the good of its holder, which implies that any alienation would harm its holder. Thus, a right is no-reason morally unalienable if alienating it is always contrary to the good of its holder.

Seen in this light, no-reason moral unalienability is not unfamiliar. Hobbes expresses a similar logic, when he writes, “Whensoever a man transfers his right or renounces it, it is either in consideration of some right reciprocally transferred to himself or for some other good he hope thereby. . .and therefore there be some rights which no man can be understood by any words or other signs to have abandoned or transferred” (Hobbes Reference Hobbes and Tuck1996, 66). Likewise, in a discussion of the limits of legislative power, Locke explains that “no rational creature can be supposed to change his condition with an intention to be worse” (Locke Reference Locke and Laslett2002, II.131), and in the Essex Result, Parsons claims that certain rights “are unalienable and inherent, and of that importance, that no equivalent can be received in exchange” (Handlin Reference Handlin1966b, 330; Peters Reference Peters1978, 80).

No-reason moral unalienability explains both the right to practice religion and the right to ratify the constitution. In regards to the former, the Constitutionalists likely followed Hutcheson, who explains, “it can never serve any valuable purpose, to make Men worship him in a way which seems to them displeasing to him” (Hutcheson Reference Hutcheson and Leidhold2004, 185). Since the point of practicing religion is to take actions one believes God desires and to be judged accordingly, allowing another person to dictate one's religious practice eliminates its value, adds nothing, hurts the rights-holder, and is therefore without reason. Since such alienation is irrational, the right to practice one's religion as one pleases is unalienable.

In these terms, the right to ratification is unalienable because any alienation endangers or harms civil society and is therefore without reason. Why would this be the case? The Constitutionalists explain:

This argument tracks and expands the Berkshire Constitutionalists’ earlier argument against nonconstitutional government. An entity entrusted with constituent power, i.e., entrusted with the right to authorize the constitution before its final enactment, might approve a constitution directly harmful to the people, and be completely within its power when doing so. Moreover, there is no way to prevent this occurrence, for individuals in civil society cannot reliably control or check governing bodies in the absence of a constitution. In this sense, the dominion of those endowed with constituent power is indeed, as Allen suggests, uncontrollable.

Moreover, the Constitutionalists must have recognized that the authorization of a constitution by a body endowed with constituent power would make the constitution appear morally legitimate, even if the authorizers violated the terms of their trust. This effect would be heightened by the tradition of covenanting and the general popularity of contractual thought in Massachusetts at the time, which likely made anything resembling a social compact appear somewhat acceptable. Thus, alienating the right to ratify a constitution involves giving an external body the moral power to take actions the effects of which are either long-lasting or permanently harmful to civil society, in a context in which institutional safeguards and regulatory mechanisms are absent. To the constitutionalists, no potential benefit can offset such risk, and therefore the right to ratify is unalienable. Constitutions not only must be ratified, but this must be done directly by the people in a referendum.