The thesis of this following essay is highly tentative. I have based it largely on reading secondary sources, and only a few primary sources, and so it is quite likely that I have read too much into the sources, providing ungrounded purely speculation for want of knowledge of the original sources. With that warning, I offer the following:
In the twelfth letter of John Dickinson's Letters from a Farmer in Pennsylvania, we read that we must have "regard for posterity, to whom, by the most sacred obligations, we are bound to deliver down the invaluable inheritance" and that "you are assigned by divine providence, in the appointed order of things, the protectors of unborn ages, whose fate depends upon your virtue."
So according to Dickinson, our constitutions and political forms must be formed with future generations. It seems to me that there are two reasons for this, a practical one and a theological one.
First, for the practical: according to Samuel Rutherford's Lex Rex, question 19,
It is false that the people doth, or can by the law of nature, resign their whole liberty in the hand of a king. 1. They cannot resign to others that which they have not in themselves, Nemo potest dare quod non habet (a principle of English common law, that one cannot sell that which does not belong to him]; but the people hath not an absolute power in themselves to destroy themselves, or to exercise those tyrannous acts spoken of, 1 Sam. viii. 11-15, &c.; for neither God nor nature's law hath given any such power.Likewise, Samuel Adams states in his The Rights of the Colonists that,
In short, it is the greatest absurdity to suppose it in the power of one, or any number of men, at the entering into society, to renounce their essential natural rights, or the means of preserving those rights; when the grand end of civil government, from the very nature of its institution, is for the support, protection, and defence of those very rights; the principal of which, as is before observed, are Life, Liberty, and Property. If men, through fear, fraud, or mistake, should in terms renounce or give up any essential natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of God Almighty, it is not in the power of man to alienate this gift and voluntarily become a slave.So according to Rutherford and Adams, man cannot even voluntarily sell himself into slavery, for he belongs not to himself, but to God, and one cannot sell that which belongs to God alone. It seems evident to me that if so, then it is all the more so true that one cannot sell one's posterity into slavery. One must frame an equitable and just political form if for no other reason than that one has no right to will an unjust government to his heirs. Even if one desires tyranny for oneself, one has no right to proffer tyranny onto his descendants.
Second, there is a theological reason: according to federalism, one's political constitutions bind not only those present at the original signing of the constitution, but even the descendants. For example, Heinrich Bullinger's A Brief Exposition of the One and Eternal Testament or Covenant of God (De testamento seu foedere Dei unico et aeterno, translated by Charles S. McCoy and J. Wayne Baker in Fountainhead of Federalism: Heinrich Bullinger and the Covenant Tradition (Louisville, Kentucky: Westminster/John Knox Press, 1991)) argues at length that the covenant binds even one's progeny, as evidenced by the fact that in Genesis 17, God speaks of the covenant of circumcision (brit milah) being binding on Abraham's descendants. Based on this, Bullinger argues against the Anabaptists, who practiced only adult baptism. By contrast, Bullinger modeled baptism on circumcision and thus believed in child baptism, just as children had been circumcised previously. Likewise, Deuteronomy 29:13-14 declares that, "Neither with you only do I make this covenant and this oath, but with him that standeth here with us this day before the LORD our God, and also with him that is not here with us this day."
The practical reason is clear enough, I believe. But the theological reason requires explanation. How can a covenant be binding on future generations? According to John Locke's theory of the social contract, how can anyone possibly be obligated by a social contract except those who participated in it (either personally or via their appointed representative)? Indeed, Locke himself permitted individuals to freely withdraw their consent to be governed, instantly withdrawing authority over themselves from the government. If the social contract so weakly binds those who personally participated in it, how can it possibly be held to bind those in the future?
The answer, I believe, lies in the various conceptions of the social contract. For Locke, the social contract was essentially one's personal act of appointing the government as one's proxy, one's שליח. One can, for example, appoint a proxy to perform a specific task on one's behalf, but all the same, one can revoke this authority from the proxy at any time. One has appointed the government as his personal proxy, but one can withdraw from this relationship at any time, and return oneself to a state of nature. Samuel Adams (op. cit.), for example, states, "The supreme power cannot justly take from any man any part of his property, without his consent in person or by his representative." Evidently, for Adams, the government is one's personal proxy, and so it cannot tax one without one's personal approval, or without the personal approval of one's personal representative. (Not the majority of one's representative's colleagues in the legislature; one's representative's colleagues are not one's own representatives.) Thus, Adams states (ibid.), "All men have a right to remain in a state of nature as long as they please; and in case of intolerable oppression, civil or religious, to leave the society they belong to, and enter into another."
By contrast, for the original federalists - upon whose theories Locke largely but not wholly relied - the social contract was less an appointment of one's personal proxy, and more the swearing by oath of a mutual covenanted relationship under God. One was not so much appointing a personal proxy, as much as establishing a certain religious relationship with God that extended even into the future, much as the covenants with Abraham and at Sinai bound future generations. Such a covenant could do so because it was largely founded not on personal opinion and consent, but on eternal and indisputable Godly norms. John Winthrop expresses such a view in his A Model of Christian Charity:
Thus stands the cause between God and us. We are entered into covenant with Him for this work. We have taken out a commission. The Lord hath given us leave to draw our own [political] articles [for government]. We have professed to enterprise these and those accounts, upon these and those ends. We have hereupon besought Him of favor and blessing. Now if the Lord shall please to hear us, and bring us in peace to the place we desire, then hath He ratified this covenant and sealed our commission, and will expect a strict performance of the articles contained in it; but if we shall neglect the observation of these articles which are the ends we have propounded, and, dissembling with our God, shall fall to embrace this present world and prosecute our carnal intentions, seeking great things for ourselves and our posterity, the Lord will surely break out in wrath against us, and be revenged of such a people, and make us know the price of the breach of such a covenant. ... For we must consider that we shall be as a city upon a hill. The eyes of all people are upon us. So that if we shall deal falsely with our God in this work we have undertaken, and so cause Him to withdraw His present help from us, we shall be made a story and a by-word through the world. We shall open the mouths of enemies to speak evil of the ways of God, and all professors for God's sake. We shall shame the faces of many of God's worthy servants, and cause their prayers to be turned into curses upon us till we be consumed out of the good land whither we are going.Therefore, according to Edwin S. Corwin's The "Higher Law" Background of American Constitutional Law (Ithaca, NY: Cornell University Press, 1955), p. 4, quoted in Steven Alan Samson's "The Covenant Origins of The American Polity" (op. cit.),
The attribution of supremacy to the Constitution on the ground solely of its rootage in popular will represents, however, a comparatively late outgrowth of American constitutional theory. Earlier the supremacy accorded to constitutions was ascribed less to their putative source than to their supposed content, to their embodiment of an essential and unchanging justice.... There are, it is predicated, certain principles of right and justice which are entitled to prevail of their own intrinsic excellence, all together regardless of the attitude of those who wield the physical resources of the community.In other words, the Constitution was considered binding not due to consent of those involved, but simply because it enshrined religious truth, period. God could bind future generations by His covenant simply because His words constitute absolute truth, and so consent is not important. (Nevertheless, God deigned to require consent anyway, asking in Exodus 19:5 for our consent, saying, "Now therefore, IF [emphasis added] ye will hearken unto My voice indeed, and keep My covenant, then...") Similarly, American constitutions also required the consent of the original signers. But the point is that consent was secondary to the constitution's enshrining fundamental, eternal, sacrosanct truth, truths which actually were binding with or without consent.
And all this helps shed light on the attitude evinced by the same John Winthrop elsewhere, in his journal, the The History of New England from 1630-1649, vol. II, p. 87, quoted in the Massachusetts Historical Society's introduction to their edition of A Model of Christian Charity:
For such as come together into a wilderness, where are nothing but wild beasts and beastlike men, and there confederate together in civil and church estate, whereby they do, implicitly at least, bind themselves to support each other, and all of them that Society, whether civil or sacred, whereof they are members, -how they can break from this without free consent [of the others], is hard to find, so as may satisfy a tender or good conscience in time of trial. Ask thy conscience, if thou wouldst have pluct up thy stakes, and brought thy family three thousand miles, if thou hadst expected that all, or most, would have forsaken thee there. Ask again, what liberty thou hast towards others, which thou likest not to allow others towards thyself; for if one may go, another may, and so the greater part, and so church and commonwealth may be left destitute in a wilderness, exposed to misery and reproach, and all for thy ease and pleasure; whereas these all, being now thy brethren, as near to thee as the Israelites were to Moses, it were much safer for thee, after his example, to choose rather to suffer affliction with thy brethren, than to enlarge thy ease and pleasure by furthering the occasion of their ruin.Apparently, Winthrop, in the last sentence, is referring to when God promised, after the sin of the Golden Calf, to destroy the Jewish people and make Moses another Avraham, i.e. a patriarch of a new nation, and Moses told God he'd rather be blotted out himself. His basic point is that the relationship among the men is that of a confederacy, i.e. a covenant, whereby they had sworn under God, saying they "do by these presents solemnly and mutually in the presence of God and one of another, Covenant and Combine ourselves together into a Civil Body Politic" (to quote the Mayflower Compact, by William Bradford, which was technically concerned with Bradford's Pilgrims and their Plymouth Plantation and not Winthrop's Puritans and their Massachusetts Bay Colony, but these two groups were ideologically quite similar except as regards some technical details of ecclesiology, i.e. church government, whether to separate from the Church of England (Pilgrims) or purify it from within (Puritans), but both to basically the same end and goal).
This might help explain another peculiarity: whereas Locke allows any individual to withdraw his own consent at any time, the vast majority of federal thinkers did not extend such freedom. Nearly all of them required interposition of inferior magistrates to defend the lay citizens against tyranny. Individual citizens were not permitted to avenge themselves even against actual bona-fide tyranny. There are a few reasons I have seen for this:
- One reason, as expressed by John Calvin, in a letter of 16 April to 1561 to the French Huguenot leader Admiral de Coligny, was the fear that popular uprising would inundate Europe in blood; see Douglas F. Kelly, The Emergence of Liberty in the Modern World: The Influence of Calvin on Five Governments from the 16th Through 18th Centuries (Phillipsburg, New Jersey: P&R Publishing, 1992), p. 38. Similarly, the French Catholics who oppressed French Protestants told the German Protestants that they were doing so because the Protestants were seditious anarchists; thus, Calvin had to argue - contra the Anabaptists - that Protestant Christians were loyal, law-abiding citizens; see Kelly, ibid., p. 10. And thus, it seems to me in my own personal opinion (I have not read the following interpretation anywhere), Calvin, in Institutes of the Christian Religion 4.20.8, permits rebellion to maintain liberty but not to increase liberty, because the former is not as liable as the latter to result in anarchy and bloodshed. Conservative rebellions are permitted while revolutionary ones are not.
- For Theodore Beza, Calvin's successor, there is a second reason to require inferior magistrates: inferior magistrates were required because political covenants were public matter, not a private one, and therefore had to be abrogated publicly, not privately; see Professor John Witte, Jr. Rights, Resistance, and Revolution in the Western Tradition: Early Protestant Foundations.
- A third reason for the requirement for inferior magistrates to interpose and lead rebellions is provided by Johannes Althusius's landmark 16th-century work Politica. In this work, Althusius provided a unified theory of federalism, using the covenant to not merely describe government, but rather all human society, governmental and not. According to this theory, man is a symbiote, and all of human life can be described in terms of covenants, compacts, and constitutions - whether explicit or implicit - among mutually consenting parties. Families covenant to form towns; towns covenant to form provinces; provinces covenant to form commonwealths; commonwealths covenant to form empires; commonwealths covenant to form international associations. Under such a conception, rebellion was to be undertaken by a given sector of society to whom the covenant was relevant. If so, for example, then if a province violated its covenant with the towns, then it was the towns, not the individual citizens, who were to rebel. Althusius requires interposition of inferior magistrates because it is only the actual members of the given covenant that can avenge themselves. Therefore, in the United States of America, it is the state governments, not the individual citizens, who are to avenge violations of the United States Constitution, for it is the states, not the citizens, who compacted to form the Constitution.