Contracts and Natural Law Fundamental Rights (Part IV)

United States citizens tried to inject social compact theories into welfare debates. The land reformers of the Nineteenth Century tried to argue that land belonged to everyone equally. Their theory suggests there should be no private property, that land should not be bought, sold, gifted, or willed. Moreover, they argued that the living, not the dead should control the land. Land reformers would argue that the sea, light, and air are all publicly owned. All that being said, none of the great theorists of social compact theory agree that all land should be publicly owned and redistributed to only living citizens. In their defense, Land reformers like to point to Locke’s statement: “Labor makes for the greatest part of the value of things.” However, this is not condoning welfare or land redistribution. It is condoning capitalism and those that work will have the best opportunities to reap the benefits of their labor and to purchase land. In fact, one of the biggest arguments made by land reformers is that it will reduce the size and power of government. Of course, we have learned that none of this true in modern America. Redistribution of wealth and welfare has grown the government in astronomical proportions over the past 60-years. Land reformers best argument from social compact theory comes from the Pufendorf point of view where citizens natural law rights are not absolute and therefore property rights can be abridged for any reason the government sees fit. However, this is the antithesis of the social contract theory America was founded on. Even if rights are abridged there must be a compelling reason and the government must use the least evasive method to achieve its objective. The Homestead Act of 1862 proved that land equality did not work. People who received free land got greedy and willed it to their children. This ended the land reformers bid for perpetual land equality. This is precisely why socialism does not work: everyone is partial to their own needs and greed. Besides, land reformers arguments that “land cannot be bought or sold” conflicts with modern liberalism principles that that rights such as healthcare can be bought and sold.

Modern progressives and liberals have moved away from the Declaration of Independence refuting natural law fundamental rights and social contract theory. However, using social contract theory arguments in favor of illegal immigration, lenient immigration laws, and gay rights would make more sense than the hollow arguments put forward merely to win political points (and votes). There are several reasons for liberals abandoning social contract theory. In particular, many progressive or liberal policies do not fit into social contract theory and the principles outlined in the Declaration of Independence. For instance, capitalism or economic freedom and private property rights are all supported by social contract theory. Also, it is important to understand that original progressives were racists. They believed in racial purity and therefore were proponents of anti-immigration, segregation, and legislation against women’s rights. But it was not just progressive and liberals dissing the Declaration of Independence. Far right conservatives did the same thing in the 1970s in response to the civil rights movement started in the 1960s. The bottom line is that the Declaration of Independence is long forgotten in modern society, taking a back seat to the incorporation of the Bill of Rights to the States (discussed later in this text).

The turning point in the movement against social contract theory started after the Civil War. After a brutal war, the people feared Lockean and Declaration of Independence principles of revolution and secession. The move from popular sovereignty to government sovereignty took many forms: majority rule, emergencies, social justice, presumption and other methods discussed later in this text. America began to look more like Alexander Hamilton’s view of big government over Thomas Jefferson’s political principles. A change in focus from political to social issues was also fundamental in mitigating social contract theory. There was a progressive ignorance indicating “creative political intelligence” was needed to “tame” social contract theory. However, progressives fail to see how social contract theory protects social rights such as friendships and community relationships. Progressives also incorrectly hypothesize “society makes individuals, individuals do not make society.” Obviously both statements are true, not just one.

Freedom of contract to protect natural rights was also hypothesized as a method to replace social contract theory: “There was no lack of postbellum lawyers and judges who deemed freedom of contract under the law a far safer bet than a social contract above the law.” But this text believes there is no reason that freedom of contract and social contract theory cannot coexist since both protect natural rights and popular sovereignty. And freedom of contract may not support overthrowing the government but it supports the formation of political assemblies and protests (social contracts) to keep government in check.

Is social contract theory dead in modern America? Yes, and the reasons are outlined below:

• A “state of nature” died a long time ago. A state of nature implies little governance so citizens can live free with nature. But as populations and society grew with technological advances much of the United States is no longer in a state of nature but is now a land of laws, institutions, and traditions.

• Supreme Court justice, Oliver Wendell Holmes, did his best to destroy the “higher law principles” of social contract theory. Holmes said “The jurists who believe in natural law seem to me to be in that naïve state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere.” Holmes and other progressives such as Walter Lippmann moved society away from higher law principles to one of majority rule. Lippmann said “Politics is not concerned with prescribing the ultimate quality of life.” Moreover, Lippmann suggested “that the public philosophy shall be believed to be right.” However, all that being said, following natural law principles does not violate the right of others, but majority rule in United States history has been used consistently to violate the rights of our neighbors (more on this later in the text).

• The question of who consents to the social contract is open for debate. And is consent absolutely necessary for social compact theory? There is no question that the founders and their generation consented to the Declaration of Independence and the Constitution. They signed the documents and even held state ratifying conventions for the Constitution. But, no one has officially signed on to these documents in over 240 years. .

Do United States citizens and aliens consent to government? The answer is both yes and no. There must be both political authority and political obligation for consent. Political authority is when “the leaders get the right to govern only those who agree to give them this right in a social contract”. Political obligation is when the “people are obliged to obey the state’s orders only if they agreed to do so in a social contract”. Those who do not consent have more rights than those who do consent. So, who consents to social contracts? Those who take an oath to uphold the Constitution; immigrants (illegal or legal) who move to the United States; those of us who inherit property; people who violate the rights of others (criminals); those of us who take more out of system (welfare and public benefits) than put into it (taxes); even those individuals or companies who benefited from temporary welfare benefits or bailouts have consented unless they paid back their grants with interest; individuals who fail to pay their taxes on time or cheat on their taxes; certain individuals and companies who work for government contracts; and military personnel as well as many public jobs. From this it is easy to surmise that a majority of Americans do consent to government and the social contract theory. Non-consenting individuals’ natural law fundamental rights should be honored as outlined in those critical documents at the founding: The Declaration of Independence, the Northwest Ordinance, and the Constitution. Consenting individuals’ rights might be abridged. For instance, military personnel lose rights when they tried in military tribunals; Criminals are confined and even when they are free they face parole guidelines such as being forced to wear a tracking device; Welfare recipients, if the government wanted, can be drug or alcohol tested and compelled to work jobs they do not want for their benefits; Public officials can be held to higher criminal standards such as treason; Layers, who take an oath to uphold the Constitution, can be disbarred for life from practicing law if they violate their duties whereas, most individuals who are fired from a job for violating ethical standards can simply get a similar job at another company. One thing is certain, consenting or not, all citizens should be held to the principles outlined in the Declaration of Independence and Constitution. Put another way, citizens and aliens consent only to Constitutional laws but no one consents to unconstitutional laws.

It is the view of this text that most Americans do provide consent and those who have not consented can be held to the principles of the Declaration of Independence and Constitution so long as their rights are not abridged for any reason. So, consent has sort of survived the test of time.

• Human or natural rights are the only aspect of social contract theory that has sort of survived the test of time. However, the “rights revolution” starting in the 1970s has increased the number of rights, but in doing so, it has also diluted our rights. Animals, nature, and abortion rights do more to mitigate our natural fundamental rights because it suggests elective surgery, a tree, and even drinking coffee are on par with true natural law fundamental rights such as obtaining knowledge and the sanctity of life. Instead, animals and nature can be protected through “human” contract rights with nature. In fact, social contract theory and a state of nature can be formulated to protect our environment. Social contract theory and higher law principles can also be used to protect nature as God intended. To make matters worse, many rights given to women, gays, and minorities in the form of diversity and affirmative action provide some groups of people preferential treatment. One should remember President Andrew Jackson’s campaign slogan: “Equal rights to all; special privileges to no one”. President’s Woodrow Wilson and Herbert Hoover would do a huge disservice to rights by suggesting “human rights over property rights”. After all, what good are an individual’s rights if the home they live in is confiscated by the government without just compensation. Finally, Franklin Delano Roosevelt (FDR) campaigned on social contract theory in 1932. However, in reality, his social contract theory was, in essence, social justice or welfare doing another huge disservice to the doctrine. But, in FDR’s defense, he was not the genius the Left made him out to be because he merely copied what France had already accomplished with regards to social rights.

Can social contract theory be resurrected? Probably not, although many have tried. Newt Gingrich’s “Contract with America” was at best a pseudo reenactment of the social contract theory. This text focuses on what reforms are needed to protect our true natural law fundamental rights to stop the dilution of rights (freedom of contract). This text is not trying to accomplish this goal by reinstating social contract theory but it will try to achieve this task through other Constitutional methods. Besides, it is not acceptable to pick and choose which parts of social contract theory are acceptable and which ones are not. Case in point, by doing so, the South found ways to justify slavery. However, the South could not justify slavery if they followed the entirety of Lockean and Jeffersonian social contract theory. For this reason, this text would like to see the full reinstatement of the Jeffersonian Declaration of Independence preamble for United States social contract theory. But that may not be possible based on the damage it has already undertaken.