Topic: Constitutional Issues
The Myth of the Social Contract A criticism of traditional notions of the social contract.by Alex Strekal
(libertarian)
Sunday, January 6, 2008
One of the most erroneous political ideas is the notion of the social contract. The idea is that the legitimacy of a government is based on a social contract between the people and the government. In America, the constitution is supposed to be our social contract. But since no such "social contract" has ever been an actual voluntary contract among "the people", it cannot be said to have any genuine authority under any common sense standards of justice. None of us ever signed the document (and even when it was drafted, it was only signed by a tiny aristocracy of people). Rather, we are assumed to have implicitly "consented" to it merely for being born within the territory. This strikes me as incredibly unjust. A true contract requires explicit consent. However, the standard view of the social contract is that everyone implicitly agrees to it by simply living under a given government.
The idea of a contract that I never signed that binds me to the authority of the state from birth, is akin to slavery from birth. I never signed no stinking contract. How is it that I am binded by this document for merely being born within the territory? How is it that I am obligated to serve a particular band of men for merely being born within the territory? How can a document be self-enforcing? It cannot, it must be created and enforced by flesh and blood individual men. How can the law rule all on its own? It cannot. The rule of law is a concept meant to, or that at least functions to even without such intent, disguise what is really the rule of men. The state can not be contractual. If such an institution truly is contractual, it ceases to be a state in any rational definition of the word.
The Lockean view of sovereignty essentially boils down to the idea that as soon as the constitutional contract is broken by the government, it is no longer binding and the government therefore no longer has sovereignty. In fact, without realizing it, Locke throws a huge bone to anarchists, because no government in the history of mankind fits the criteria necessary for his social contract. He was indeed denounced by his detractors as being an anarchist, for they quite correctly realized that the implications of his theory of sovereignty would completely delegitimize all existing states. Under common sense standards of jurisprudence, and Lockean principles, the constitution literally is not a binding contract. Furthermore, even if we treat it as having once been binding, the government has long since reniged on its contractual obligations. Therefore, under the classical liberal theory of sovereignty, it (and the government that it spawned) has no legitimate authority.
What about the idea that the constitution gives us our rights? It does no such thing. Rights are natural. You have them regaurdless of wether or not the law recognizes them. If the 2nd amendment was not in the bill of rights, you would still have a right of self-defense. It would not be legally recognized, but you will still have that right. This is the Lockean-style view of natural rights. You have them by virtue of being a human being. Constitutions do not give you your rights, they can only legally recognize them. Rights do not come from governments or laws, they come from human nature itself. All the government can do at best is abstain from violating your rights. In the Lockean view, governments and laws may be instituted in the name of securing these rights, but they are not where they derive from.
Thomas Jefferson said it best: "A free people claim their rights as derived from the laws of nature, and not as the gift of their chief magistrate." -- Thomas Jefferson
From a practical standpoint, the constitution already has been shown to not work. It was defied almost from day one and the post-civil-war federal government, and especially the post WWI federal government, essentially has little to no resemblance to the document_ The constitution already has failed, so I don't see the logic in trying the exact same thing again. Clearly, the document can either be interpreted in a manner that implies the opposite of its original intent or meaning, or outright defied anyways. The document was flawed in the first place (not to mention that it was expansive in comparison to the document that preceded it, namely the AOC).
What about the content of the constitution? While it has been argued ad nauseum that it's "original intent" (or, to take a somewhat more strong stance, the "original meaning" of the words in themselves) was to limit the government's powers, the document itself contains plenty of "loopholes" and vague language that can easily be construed (and have been so construed) to grant expansive powers not intended or apparent within the plain language. The "general welfare" clausecomes to mind most of all. It has been used to justify practically anything the government does, for "general welfare" is a loaded, subjective and arbitrary term. Who's welfare, and what exactly is welfare? Who will define this for us? "The supreme court", you answer? What kind of limit on government is this, that it may define its own powers arbitrarily and at whim?
Not only can the constitution not work and has been empirically shown to not have worked, but it cannot be ethically justified to begin with.
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The views expressed in this
article are those of Alex Strekal only and do not represent
the views of Nolan Chart, LLC or its affiliates. Alex Strekal is
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You are entitled to your opinion, but it is completely unprovable, because absolute truths like natural rights are a matter of faith. I hold them to be self evident. You don't seem to believe in them at all. Ok, don't force your faith on me and I won't force mine on you.
A contract is simply a recognition of an agreement or relationship. It may or may not be voluntary, permanent or binding. The U.S. constitution is NOT binding or even supposed to be binding on you. It is binding on the Federal government and it is a contract BETWEEN THE FEDERAL GOVERNMENT AND THE STATE GOVERNMENTS. It's primary purpose is to limit government power, not to authorize it.
Please read Judge Andrew Napolitano's terrific new book A NATION OF SHEEP to get an idea of the main libertarian view on contracts and jurisprudence.
Point of semantics: Your views seem more anarchist than libertarian to me. That's your right, but be honest. The big state people already stole the word "liberal" from us, and if you minarchists/anarchists take "libertarian", well "Classical Jeffersonian Liberalism" is just too damn long a term.
"You are entitled to your opinion, but it is completely unprovable, because absolute truths like natural rights are a matter of faith. I hold them to be self evident. You don't seem to believe in them at all. Ok, don't force your faith on me and I won't force mine on you"
I don't see where you imply this. In the article I argue in favor of natural rights and against constitutionalism. And I disagree that natural rights is a matter of faith, they are derived through reason in a rational process.
"Point of semantics: Your views seem more anarchist than libertarian to me. That's your right, but be honest. The big state people already stole the word "liberal" from us, and if you minarchists/anarchists take "libertarian", well "Classical Jeffersonian Liberalism" is just too damn long a term"
Yes, I am an anarchist, and anarchists have always been a part of the libertarian movement. In fact, the word libertarian itself originally derives from late 19th century anarchists. As a braod paradime, libertarianism includes both anarchists and miniarchists/minimalists or classical liberal types.
Your original statement about the nature of the social contract is inaccurate. The social contract is a theory which attempts to explain the nature of society. It is not, nor has it ever been an actual document. The Constitution plays a role within social contract theory, but it is not the social contract in and of itself.
Thomas Hobbes is the modern father of social contract theory, although its roots go back to the ancient Greek philosophers, most notably Socrates. In his 1651 book “Leviathan”, Hobbes stated that man used his reason to come up with a method to ensure cooperation between equal individuals. This method was the invention of civil society. Hobbes believed that man needed civil society to save him from a hypothetical State of Nature in which people were not bound by laws and were free to follow their own self interests without regard for one another. Hobbes believed the State of Nature was inherently violent and was marked by permanent, unavoidable warfare. Nobody could ensure the long term satisfaction of needs and desires because they all lived in a state of perpetual distrust which necessitated constant vigilance against loss of life.
The social contract was the tool used to establish civil society. The social contract has two parts. First men had to collectively and reciprocally renounce all claims they had on each other in the Sate of Nature. In other words they had to agree to pursue peace so long as others pursued it as well. The social contract leaves the option of pursuing war if, and only if, others had chosen war first. The originators of aggressive actions are known as criminals. This brings us to the second part of the social contract, enforcement. Men had to agree to imbue some person or group of persons with the power of enforcement when individuals chose to break the contract. The Constitution, and all of our laws, are simply the details of how the social contract will be enforced and who will actually enforce them.
You ask how the social contract can be self-enforcing. I answer that it isn’t. The social contract includes a provision for enforcement.
You ask how you can be obligated to obey the law simply by being born in a territory. I will use the answer that Socrates gave to this question. In the dialogue “Crito” Socrates explained why he stayed in prison and accepted the death penalty rather than escape into exile. He argued that the laws of Athens had made everything about his way of life possible, including his very existence. He argued that his mother and father met, married, and raised him according to the customs and laws of Athens. More importantly though, he argued that once he was grown he had the opportunity to choose whether to stay or to pack his belongings and leave. The fact that he chose to stay implied an agreement between him and the law. He felt that this agreement was just since it wasn’t coerced. Since he had lived by the agreement he could not break it, even though it meant his life was forfeit. You too have the same choice before you every day. If you decide that the laws where you live are unjust you are free to leave for greener pastures, as you like. Of course since we live in a society in which individuals are afforded opportunities to try and alter the laws to remove some the injustice they may feel it is their lot to endure, you could also choose that option. We all await your decision.
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