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IT DOESN'T SAY WE CAN'T DO IT.

Roberts Rules of Order

If you are in an organization and need to know more about Robert's rules click here. There is a new chapter in the book especially for HOA's.

 

 

 

IT DOESN’T SAY WE CAN’T DO IT.

 

By Robert McConnell Productions

 

 

Dear Readers,

            Recently a friend called trying to find the answer to a question posed by a member of her organization.  The member wanted to do something and couldn’t find in the governing documents where it was allowed.  So she posed this question to my friend, “Where does it say we can’t do it?”  My friend’s natural instinct was “If doesn’t say we can do it, then we can’t.”  She found this quote in Robert’s Rules of Order (Newly Revised, 10th edition): “In bylaws, as in legal documents of any kind, every punctuation mark may have an important effect; and what is omitted may carry as much significance as what is included.” 

            In this Internet Parliamentary Newsletter, we will address this issue.  We will show how the governing documents of an organization, empower it to do something.  If it isn’t in the governing documents then it is not allowed.  The idea about writing down what the organization can do is defining its purpose, limiting its power, and putting forth in positive rules its scope of activity.  Prohibitions are usually not written into the bylaws unless they are of great importance.  And often prohibitions are written into the governing documents in positive statements.  By defining in specific terms what the officers or the members shall do, it is also saying, “other things not mentioned in these bylaws, the officers or the members can’t do.”  Again Robert’s Rules comes to our aid.  In the chapter on writing bylaws, and under the section about officers and their duties, the book says, “Great care must be taken in the writing of the article not to omit any duty, since an implication that the duty is not required could be read into the omission.  For this reason, if such an article is to be included, it is well to conclude the section on each office a clause such as “…and such other duties applicable to the office as prescribed by the parliamentary authority adopted by the Society.” [ii]  However, before we begin this subject it is important to understand some political theory about government itself.  The concept that everyone needs to understand in a constitutional country, or organization, is: theconsent of the governed.

 

THE CONSENT OF THE GOVERNED

 

            The political philosophical concept of the “consent of the governed” was brought forth by John Locke in his “The Second Treatise Government.”  It greatly influenced Thomas Jefferson who wrote the “Declaration of Independence.”  It has become a basic principle in American democratic thought.

            John Locke wrote that man basically lives in a state of nature where all men by nature are “free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent.”[iii]  In this state of nature each is governed by the state of nature which respects the rights of others.  There are no formal written laws or government to protect them.  Each man enforces the law of nature himself and has the right to punish another when the law of nature is violated, especially concerning the individual’s right of property, life or liberty.  The problem in the state of nature is that men become bias.  They are willing to enforce the laws of nature concerning others but not of themselves, their friends, or family.  So in civil societies men come together and give their consent to be governed by others.  He states:

 

“For when any number of men have, by the consent of every individual, made a community, they have thereby made that community one body, with a power to act as one body, which is only by the will and determination of the majority.  For that which acts any community being only the consent of the individuals of it, and it being necessary to that which is one body to move one way, it is necessary the body should move that way whither the greater force carries it, which is the consent of the majority; or else it is impossible it should act or continue one body, one community, which the consent of every individual that united into it agreed that it should; and so every one is bound by the consent to be concluded by the majority.   And therefore we see that in assemblies empowered to act by positive laws, where no number is set by that positive law which empowers them, the act of the majority passes for the act of the whole, and of course determines, as having by the law of nature and reason the power of the whole.”[iv]

 

            In short, we join a society, and relinquish our right to act independently, and agree to adhere to the will of the majority.  If we don’t like it, then we can withdraw our membership from that society and no longer be under its control, or we can persuade others to consider changing the rules.  But the basic principle here is that we give our right to be governed by acts of  “positive law”.  We propose the laws; we discuss them, and then adopt them.  After they are adopted we agree to obey them.

            Now let’s look at this from the perspective of organizations and their governing documents.  In coming together the members must agree on the purpose of forming a society and coming together.  Let us say a group of people get together to found an organization to help stray animals.  In this group there is an element that wants to also help homeless people, but they are not the majority.  If this minority felt strongly about only helping people instead of animals, then they probably wouldn’t join with this organization.  They in essence don’t give their consent to be governed. 

            When a group of people come together to begin an organization, by writing and adopting bylaws they are agreeing how they are going to be governed.  How much power are the members going to have?  How much power are the officers and board of directors going to have?  How much power are the committees going to have?  How are they going to select their officers?  Who can serve as officers?  What are the rights that come with being a member?  What are the responsibilities that come with being a member?   These are put into the governing documents and agreed to by the members. 

            When new people apply for membership, then they need to read the bylaws of the organization because by joining they are giving their consent to be governed by these documents.

            Another idea of consent by the governed is the idea of withdrawing consent or in essence changing the bylaws.  If after a while the bylaws are not working, then the members have the right to amend the bylaws and give their consent to new rules by which they will abide.

            If the members give their consent in the bylaws that they will have quarterly meetings, a board of directors or a president can’t decide to have monthly meetings unless there is a provision to call special meetings.   Even though the bylaw doesn’t say a president or board can have monthly meetings, the bylaw in “positive law” say the meetings are to be quarterly, which preclude more frequent meetings.

            The object of an organization states its purpose for existence.  If it is to take care of and find homes for stray cats and dogs, a president or even the membership itself can’t start a home for homeless people unless they have the consent of the governed because it does not fall within what the organization was founded to do.

            If everyone understood this basic concept about the consent of the governed and respected it, there would be none of the tyranny and disrespect for righteous government that we find in so many organizations today.

 

RIGHTS AND LAWS ARE STATED IN THE POSITIVE

 

            If you know your history, an interesting thing happened on the way to adopting our United States Constitution.  There was a very strong debate and even opposition to the constitution because it did not include basic rights or freedoms, such as free speech, right to a trial by jury, right to bear arms, right to assemble, right to free worship, and protection against unlawful search and seizures.  These rights were basic rights of Englishmen and the colonists.  Anti-Federalists were insistent that they be included in the Constitution.  The Federalists insisted that they didn’t need to be there because they were natural rights and given in state constitutions.

            Jack Rakove, in his book about the Constitution says this about the debate:

 

“By implying that traditional rights and liberties would be rendered insecure if they went undeclared, Anti-Federalists in effect suggested that the existence of these rights depended upon their positive expression.  An American bill of rights would thus be something more than a declaration of preexisting rights; for though its adoption could be interpreted as merely verifying the birthright Americans already possessed, its omission would fatally impair their authority.  Anti-Federalists sensed that the supremacy clause of a written, popularly ratified constitution could indeed sweep aside all prior claims of rights and authority.  The multiple sources for the authority of rights that the colonists had once invoked now seemed obsolete because the Constitution would create its own self-sufficient standard of legality.  The argument that rights would cease to be rights if they were not explicitly constitutionalized thus rested on venerable concerns, but it also addressed the modernity of the Constitution in forthright terms.”[v]

                                                                                                                                                                         

            And as we know, a Bill of Rights was added to the Constitution as the first ten amendments of the constitution.  These rights have become the corner stone of constitutional law, and they have become the basis for many of the Supreme Court decisions.  What would we do without them?

            When writing our documents, we must too put them in the positive.  It is a general principle that motions be put in the positive.  So should our governing documents.  Because of this basic rule, we don’t have to have lists of “thou shalt not dos”.  If this basic principle would have been understood in ancient times, there made not of have been the need for all the expanded “thou shalt not” laws in the Bible found in the book of Leviticus.  In the new testament, these laws were summed up: love God, and love your neighbor as yourself.  This fulfills the entire law.

            Another point that we must make is that when a power or right is given in specific terms it sets limits or boundaries within which the members can act.  For example, Robert’s Rules states that a board of an organization can only do what is assigned to it in the bylaws.  The board can’t take an action that conflicts with an action of the assembly, and the members can reverse any action of the board unless the power is specifically given to the board in the bylaws.  If the bylaws states that the board can only enter into contracts, then the assembly can’t oppose any contract made by the board.  However, if this power is not given to the board and the board enters into a contract, the members have the right to rescind this contract. 

            By understanding this basic principle of consent of the governed, putting the governing documents in the positive, members can protect their organizations from those who have no respect for the rules and principles of righteous government. 

            So what is your response when some says,  “It doesn’t say that we can’t do it.” ?  The reply is “where does it say that we can do it.”

 

 


[i] Robert III, Henry M., Evans, William J., Honemann, Daniel H., and Balch, Thomas J., Robert’s Rules of Order Newly Revised, 10th Edition,  (Cambridge:  Perseus Publishing, 2000) 551

[ii] ibid. 556

[iii] The Spark of Independence, (New York: History Book Club, 1997) 23

[iv] ibid. 24

[v] Rakove, Jack N, Original Meanings Politics and Ideas in the Making of the Constitution, (New York: Alfred A Knopf, 1996)  324

 

 



 

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