nize that he is subject to civil law and
all the penalties connected therewith
until his ideas or acts no longer con-
stitute those of a minority group, but
have become "obvious" or "evident" to
all and have resulted in dissolution of
the compact.
The Declaration of Independence is
clearly a document based upon Utopian
natural right, not on constitutional
law. The unalienable rights to life, lib-
erty, and the pursuit of happiness are
natural rights; according to Locke, best
served by membership in society.
The right to destroy the society of
which one is a member is retained
throughout one's membership in society.
The exercise of this right, however, is
"to declare war" on the society, and to
discredit the very purpose for which the
society was formed, that is, the security
of its membership. No society, there-
fore, in the interest of stability, self-
preservation, and preservation of its
members, can allow individuals to exer-
cise a civil right to revolt. No man,
however, nor any society, can deprive a
man of his natural right to do so.
Man is free when he is aggrieved,
Utopians would state, to protest against
tyranny and to refuse to submit. Yet, it
would be an invitation to anarchy, an
absurd recognition of individualism and
equality of men's minds, if a constitution
were to guarantee self-determination in
personal grievances, the very object
which the institutions of civil law sought
to end; for it is easily seen how natural
liberty may tend to privilege and thence
toward a disintegration of government
and a susceptibility to aristocracy or
monarchy.24
24 See 3 J. rousseau, Du contrat social
Ou principes Du droit politique, chs. 4-6,
10 (Gamier Frerer ed. 1962).
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The credibility of much of what has
been said above depends upon the credi-
bility of an original contract. It is unreal-
istic, however, to conceive of every
member of a future society organized in
a floodlighted colliseum off in the wilds
of nature, all of whom are prepared to
consent to rule by law and punishment
by delegated power. It is conceivable
that "many" men or "distinguished"
men, representing the will of all, will
organize to form some such contract. It
ought to be forgotten that tables or
parchments are in anyway involved, for
the very issue may turn on the giving of
tacit consent to civil rule.
Theoretical individualism suggests
that no one need obey any government
which he has not personally undertaken
to obey. Locke was quite explicit on this
point: "Every man that hath any pos-
session or enjoyment of any part of the
dominions of any government doth
thereby give his tacit consent and is
obliged to obedience to that govern-
ment's laws."25 On the other hand, to
reaffirm his belief that tacit consent
should not be confused with subjuga-
tion or compliance by necessity, Locke
stated further: "No man is a member
of a society but by his actually entering
into it by positive engagement and ex-
press promise and compact."26 In other
words, by tacit consent, man is bound by
law and in conscience, but only by ex-
plicit consent does he become a full
member. The distinction, if it exists at
all, is a fine one, and seems only to
strengthen the role of tacit consent in
society.
25 social contract, supra note 12, at 71.
See also Ashwander v. TVA, 297 U.S. 288,
346-48 (1936) (Brandeis, J., concurring
opinion).
26 social contract, supra note 12, at 72-
73.
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