The Personal Website of Mark W. Dawson

The American Theory of Government

What are the Duties and Responsibilities of the people of a country to the government, and what are the Duties and Responsibilities of the government to the people? This philosophical question has been pondered by philosophers for millennia, most especially by John Locke in his 1689/90 Two Treatises of Government. In a new book by Randy E. Barnett and Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit, they answer this question with the qualifier as follows:

“… the natural duty of obedience to government authority owed by a citizen entails a reciprocal duty of protection toward citizens that is owed by the government.”

This is the Social Compact that we all enter into by being citizens of a country. In America, this social compact includes:

“The right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceeding concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms.”
 - Senator Lyman Trumbull

To which I may add:

No law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

An indictment by a Grand Jury is required for infamous crimes, and no Self-Incrimination is to be impelled or required, nor is Double Jeopardy permitted. No one’s life, liberty, and property are to be taken without Due Process of Law, and private property cannot be seized without equitable compensation.

The right of no Soldier in time of peace to be quartered in any house, the right to be secure in our persons, houses, papers, and effects against unreasonable searches and seizures, the right to a speedy and public trial by an impartial jury, and no excessive bail shall be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it, and no Bill of Attainder or ex post facto law shall be passed.

The Duty of Obedience requires that the government pass and enforce ‘just’ laws for the protection of our Natural Rights; amongst these are the unalienable Rights of Life, Liberty, and Property as well as other Natural Rights. Some of our Natural Rights we cede to the government to assure that everyone’s Natural Rights are being protected and for the orderly and peaceable functioning of society, but in no case can government violate our Natural Rights unjustly. The question, as always, is what are just laws? The most elegant answer to this question is from Martin Luther King’s Letter from a Birmingham Jail:

“One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.”

The Duty of Protection requires that government protects our unalienable Rights of Life, Liberty, and Property, as well as other Natural Rights. This requires that the government proactively protects our rights. If they are passive and do not protect our rights, or violate our rights, then they are an illegitimate government that the people owe no Duty of Obedience to. Some current events are apropos to this Duty of Protection. In particular, the lack of prosecution for perpetrators of leftist’s mob violence, no bail and early release of felony criminals, the labeling and monitoring of conservative protesters as terrorists, treating the January 6th rioters as insurrectionists, and the selective investigations, audits, and prosecutions against conservatives who protest government actions, all of which seem to be a violation of the Duty of Protection. A violation in the sense of the state's responsibility to act to protect the rights of all persons from being violated by others, including by private actors. These current events can be construed as a violation of the social compact of government for the protection of Life, Liberty, and Property of the individual.

This Duty of Protection is the basis of the American Theory of Government, as Randy E. Barnett has outlined in another paper, “The Declaration of Independence and the American Theory of Government: First Come Rights, and Then Comes Government”:

• According to the American Theory of Government, the rights of individuals do not originate with any government but pre-exist its formation;
• According to the American Theory of Government, the protection of these rights is both the purpose and first duty of government;
• According to the American Theory of Government, at least some of these rights are so fundamental that they are inalienable, meaning that they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so;
• According to the American Theory of Government, because these rights are inalienable, even after a government is formed, they provide a standard by which its performance is measured; in extreme cases, a government’s systemic violation of these rights or failure to protect them can justify its alteration and abolition.

These answers are what our Founding Fathers utilized in writing "The Declaration of Independence", most famously at the beginning of the second paragraph:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

When a government fails in its Duty of Protection, then the people have the right, and duty, to alter or to abolish it to institute a new government that will afford these protections of Life, Liberty, and Property, as well as the other Natural Rights, retained by the people. Americans that vigorously protest government actions are not attempting to overthrow the Constitution but to assure The American Theory of Government is applied. Or, as the 16th President of the United States has said:

"We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution."
  - Abraham Lincoln

In the 21st century, many Americans seem to have forgotten or do not know The American Theory of Government. Led by Democrat Party Leaders and Progressives/Leftists, they believe that whatever the majority needs or wants should be implemented by the government for the greater good rather than the common good, as I have written in my Terminology webpage on "Greater Good versus the Common Good". This is not a republican form of government based on The American Theory of Government, but an ochlocracy that can only be enforced by despotism. Indeed, a despotism that can quickly devolve into a tyrannical government.