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Published online by Cambridge University Press: 05 August 2009
Thomas Paine's social-contract theory, which asserts the protection of individual rights as the sole end of civil society and the consent of the majority of individuals as the sole source of government's authority, may seem to be better suited to the democratic Constitution of the United States than Edmund Burke's theory of prescription of government. Burke's theory is based on the rational moral goals of civil society, not on the supremacy of the people's or any other will. It asserts that the natural ends of society are prior to rights as Paine and other radical democrats conceived of them and that natural obligation is prior to and controls consent. Burke can therefore afford us a more realistic interpretation of popular consent and of the Constitution as the political form that makes us a people. He also offers a useful corrective to the currently popular view of the Supreme Court's function as being primarily to protect an ever-expanding array of constitutional rights. Burke was no democrat but he may help democrats to overcome the limitations of the liberal contractarian model of society.
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2 The Rights of Man, in The Complete Works of Thomas Paine (New York: Freethought Press Association, 1954), 2:194.Google Scholar
3 Ibid., p. 155.
4 Ibid., p. 153
5 Ibid., p. 48
6 Ibid., p. 42
7 Ibid., p. 131
8 Ibid., pp. 13–14.
9 Dissertation on the First Principles of Government, Complete Works, 2:365.Google Scholar
10 Ibid., pp. 373–74
11 Rights of Man, p. 98.Google Scholar
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14 Ibid., p. 230.
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17 Tract relative to the Laws against Popery in Ireland, Works, 9:348.Google Scholar
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27 Ibid.
28 I have developed this thesis at length in Freedom of Expression: Purpose as Limit (Durham, N.C.: Carolina Academic Press, 1984).Google Scholar
29 The Irony of Liberal Reason (Chicago and London: University of Chicago Press, 1981), p. 303.Google Scholar
30 Excerpt in Liberalism and Its Critics, ed. Sandel, Michael J. (New York: New York University Press, 1984), p. 57.Google Scholar
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32 Statecraft as Soulcraft (New York: Simon and Schuster, 1983), p. 158Google Scholar. For an eloquent defense of “the moral equality of appetites,” see the dissenting opinions in Bowers v. Hardwick (the Georgia sodomy law case), 1065 S. Ct. 2841, 2848 ff. (1986).
