The Social Contract
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In "The Social Contract," Rouseau argues that with respect to citizenship of a
particular state or country, the most sensible way to think of the relationship
between the sovereign and the subject is that of a contract. The subject
swears allegiance to the state and in turn the state protects the subject.
Thus, in the United States we see that one who is not born here is ordinarily
required to go through a naturalization process in which one is required to
swear allegiance to the United States of America. If one is born here, however,
then one is generally not asked to do so. In my view both "cradle" citizens as
well as others should be required to swear an oath to uphold and defend the
Constituition of the United States of America at age 21 (in the case of a
"cradle" citizen), or at a later appropriate time in case of a naturalized
citizen. The only sensible objection that I can see to this would be if the
person felt that simply swearing an oath in this sense would be idoltrous
because there is no set or determinate way of interpreting the Constitution.
This objection is easily met by allowing the person to qualify the Oath by
stating that one swears to Uphold and Defend the Constitution of the United
States of America under Divine Law (or Natural Law) (or God) (or a Higher Power)
or something transcendent analogous to the above. One might object that
a citizen should be able to take advantage of Constitutional rights while at the
same time not supporting or even recognizing the validity of the Constitution.
Here, I would argue that the principle of "Constitutional Estoppel," would apply,
which estops a person or persons from taking advantage of Constitutional
principles when in the abstract they themselves refuse recognize the validity of
such principles. So, for example, in the classic case where the Nazis wish to
demonstrate in Skokie, I would argue that unless they or their leaders agree that
blacks, jews, catholics, or others who would want to hold a demonstration in their
neighborhood be also be allowed a permit to march, the principle of Constitutional
Estoppel would prohibit the Nazis from marching in the present circumstances.
The Social Contract, by Rouseau opens one's mind to many of these questions,
and is a very important book. A must read for lawyers, judges, and politicians,
especially.
particular state or country, the most sensible way to think of the relationship
between the sovereign and the subject is that of a contract. The subject
swears allegiance to the state and in turn the state protects the subject.
Thus, in the United States we see that one who is not born here is ordinarily
required to go through a naturalization process in which one is required to
swear allegiance to the United States of America. If one is born here, however,
then one is generally not asked to do so. In my view both "cradle" citizens as
well as others should be required to swear an oath to uphold and defend the
Constituition of the United States of America at age 21 (in the case of a
"cradle" citizen), or at a later appropriate time in case of a naturalized
citizen. The only sensible objection that I can see to this would be if the
person felt that simply swearing an oath in this sense would be idoltrous
because there is no set or determinate way of interpreting the Constitution.
This objection is easily met by allowing the person to qualify the Oath by
stating that one swears to Uphold and Defend the Constitution of the United
States of America under Divine Law (or Natural Law) (or God) (or a Higher Power)
or something transcendent analogous to the above. One might object that
a citizen should be able to take advantage of Constitutional rights while at the
same time not supporting or even recognizing the validity of the Constitution.
Here, I would argue that the principle of "Constitutional Estoppel," would apply,
which estops a person or persons from taking advantage of Constitutional
principles when in the abstract they themselves refuse recognize the validity of
such principles. So, for example, in the classic case where the Nazis wish to
demonstrate in Skokie, I would argue that unless they or their leaders agree that
blacks, jews, catholics, or others who would want to hold a demonstration in their
neighborhood be also be allowed a permit to march, the principle of Constitutional
Estoppel would prohibit the Nazis from marching in the present circumstances.
The Social Contract, by Rouseau opens one's mind to many of these questions,
and is a very important book. A must read for lawyers, judges, and politicians,
especially.
