Jacob Levy has posted “Not so Novus an Ordo: Constitutions without Social Contracts,” forthcoming in Political Theory, on SSRN (H/t Legal Theory Blog). It has an interesting discussion of U.S. v. Lara. Here is the abstract:

Social contract theory imagines political societies as resting on a fundamental agreement, adopted at a discrete moment in hypothetical time, that both bound individual persons together into a single polity and set fundamental rules regarding that polity‘s structure and powers. Written constitutions, adopted at real moments in historical time, dictating governmental structures, bounding governmental powers, and entrenching individual rights, look temptingly like social contracts reified.

I argue in this article, however, that something essential is lost in the casual slippage between social contract theory and the practice of constitutionalism. Enacted constitutions do not come into being against the background of a state of nature of isolated individuals; and by this I do not mean to invoke the too-familiar critique of the supposedly decontextualized liberal person, but rather to critique the aspiration to decontextualize the legal and political order. Constitutions are enacted in ongoing societies (whether newly politically sovereign or otherwise) with pre-existing laws and legal systems, political organizations, cultural and linguistic and religious divisions, and norms and mores. Moreover, the practice of constitutionalism is usually, at least in part, a practice of reconciling those legacies to a new political order, of making use of those legacies to build loyalties to or counterbalances against the state (or both). Most constitutions cannot be well-understood by retrospectively characterizing them as the kind of complete and radical break with the past envisioned by social contract theory.

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