Mr. Jay starts out with the following statement:
Nothing is more certain than the indispensable necessity of government; and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights, in order to vest it with requisite powers.
This makes a lot of sense. Government certainly is necessary; anarchy is wholly undesirable. And, to function, government must have power from somewhere. Monarchy often rests on the idea of "divine right" - that is, God made him King, thus he has the right to rule. The Declaration of Independence asserts instead, that government's just powers are "derived from the consent of the governed." This idea reflects our Founders' belief in Natural Rights, that is, rights that belong to men because they are men; rights that come from God. Ezra Taft Benson explained it this way in his essay, "The Proper Role of Government:"
Thomas Paine, back in the days of the American Revolution, explained that:
"Rights are not gifts from one man to another, nor from one class of men to another… It is impossible t discover any origin of rights otherwise than in the origin of man; it consequently follows that rights appertain to man in right of his existence, and must therefore be equal to every man." (P.P.N.S., p. 134)
The great Thomas Jefferson asked:
"Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath?" (Works 8:404; P.P.N.S., p.141)
Starting at the foundation of the pyramid, let us first consider the origin of those freedoms we have come to know are human rights. There are only two possible sources. Rights are either God-given as part of the Divine Plan, or they are granted by government as part of the political plan. Reason, necessity, tradition and religious convictions all lead me to accept the divine origin of these rights. If we accept the premise that human rights are granted by government, then we must be willing to accept the corollary that they can be denied by government. I, for one, shall never accept that premise. As the French political economist, Frederick Bastiat, phrased it so succinctly, "Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place." (The Law, p.6)
Now, if rights are gifts from God, if they are inalienable as the Declaration of Independence asserts, then it follows that they can never be "ceded." Territory, for example, that one nation cedes to another, is gone. When Mexico territory to the US in 1848, following the annexation of Texas, the modern states of California, Nevada, Utah, and parts of current-day Arizona, New Mexico, Colorado and Wyoming became US Territories. Mexico no longer has anything to do with governing this land - it no longer belongs to Mexico. To cede our rights to government would be to remove them entirely from the individual. If our natural rights are to be "ceded" to our government, those rights are no longer ours, but the governments, and it would be within the government's proper power to deny us those rights. I, like Benson, can never accept that. However, government must have some power, it must have something in order to function. Benson addressed this, later in his essay, in terms of delegation of power:
[I]t is obvious that a government is nothing more or less than a relatively small group of citizens who have been hired, in a sense, by the rest of us to perform certain functions and discharge certain responsibilities which have been authorized. It stands to reason that the government itself has no innate power or privilege to do anything. Its only source of authority and power is from the people who have created it. This is made clear in the Preamble to the Constitution of the United States, which reads: "WE THE PEOPLE… do ordain and establish this Constitution for the United States of America."
The important thing to keep in mind is that the people who have created their government can give to that government only such powers as they, themselves, have in the first place. Obviously, they cannot give that which they do not possess.
Look at the difference in the definitions of the two words, cede and delegate:
Cede: to yield or formally surrender to another: to cede territory.
Delegate: - a person designated to act for or represent another or others; deputy; representative, as in a political convention.
- to commit (powers, functions, etc.) to another as agent or deputy.
I see the point that Mr. Jay was trying to make, but I think that his statement would be much better rendered thusly:
Nothing is more certain than the indispensable necessity of government; and it is equally undeniable, that whenever and however it is instituted, the people must delegate to it some of their natural rights, in order to vest it with requisite powers.