In announcing California’s stay-at-home order on March 19th, Governor Gavin Newsom declared “there’s a social contract here.” At a Coronavirus press conference in March, New York Governor Andrew Cuomo stated, “I rely on you, you rely on me… [t]hat’s the social contract between us, I have a right to expect that from you, especially in dire circumstances.” An April 20 New York Times opinion article written by former Food and Drug Administration Commissioner David A. Kessler declared, “we need a new social contract for the Coronavirus.”
Indeed, one of the more terrifying things to come out of the Coronavirus Pandemic of 2020 is not the virus itself, but the plethora of officials and ordinary citizens citing “Social Contract Theory” as a justification for the various so-called “stay-at-home orders” imposed in one form or another across our nation, many of which imposed draconian restrictions on our basic civil liberties. Don’t buy it. Unless someone is referring to the Constitution of the United States, or a state constitution, no such “social contract” exists. Nor should you want there to be one.
Social Contract Theory is an antiquated philosophy popular in the 16th, 17th, and 18th centuries making the rounds again today, primarily among authoritarian Socialist Democrat types that also believe in a living, breathing Constitution, and for the same reason: both the “social contract” and the “living Constitution” mean nothing except what those people want them to mean at the moment they want them to mean something.
Under Social Contract Theory, the “social contract” is essentially an implicit agreement among members of society to cooperate for social benefits; for example, sacrificing some individual freedom for state protection. It’s an appealing venture: let’s work together as a society for the benefit of all. But as a licensed, practicing attorney well-versed in contract law, I’m here to tell you it’s only an illusory promise (which is lawyer-speak for an unenforceable agreement all but guaranteed to end in litigation). Why? Because, as with the “living Constitution,” the “social contract” is ambiguous and arbitrary. The “social contract” does not make clear what our rights are under it, nor does the “social contract” make clear what our obligations are under it.
And who decides what social benefits are desired or what rights and protections must be sacrificed to achieve those social benefits? Not you nor I, not even society. The “social contract” means whatever the authorities with power citing the “social contract” want it to mean. That’s no contract; that’s a recipe for tyranny and abuse of power.
That’s not hyperbole. Under the guise of the “social contract,” in the last two months of the stay-at-home orders, we’ve witnessed actual tyranny in the form of a beachgoer arrested for the crime of paddle-boarding, a mother slammed to the ground by police and handcuffed for the crime of walking her child while not wearing a mask in public, and a salon owner fined for the crime of cutting someone’s hair. That’s real tyranny, not imagined.
Even worse, the people with power may not even be elected officials; they may be an unelected, unaccountable bureaucracy, such as in the case of the San Francisco Department of Public Health, which unilaterally decided using taxpayer dollars to provide homeless people with hotels, alcohol, and drugs was somehow part of the “social contract” to deal with the Coronavirus. Or like the California Judicial Council that unilaterally ordered zero bail for misdemeanor and low-level felonies because apparently the “social contract” requires no bail for most crimes during virus pandemics. Or any number of state courts or judges that ordered the release of violent criminals and sexual predators because the “social contract” requires we do that, or something.
If we allow our federal, state, or local governments to continue citing the “social contract” as justifications for their actions, it won’t end well. Ever notice how whenever politicians want to take action on an issue, they frame it as a crisis or an epidemic? The “climate change crisis,” the “gun violence epidemic,” the “opioid epidemic,” the “homeless crisis” are just a few that come to mind. Phrasing problems as crises or epidemics is no accident; that language is intended to scare you into thinking the problems described are dire and require immediate action which is justified under the “social contract” even if proposed solutions infringe on your rights. Sorry, no more fossil fuel-powered vehicles, but don’t worry, it’s part of the “social contract.” I know you want guns, but it doesn’t matter what the Second Amendment says, you have to sacrifice your individual liberties because it’s best for society (according to me) under the “social contract.” It doesn’t matter that the First Amendment protects free speech, if you call that man who thinks he’s a woman a man, you’ll be punished for hate speech because the “social contract” requires us not to offend each other. What’s that? Hate speech laws are offensive to you? Sorry, but you don’t decide what the “social contract” is, we do.
The Constitution doesn’t have those problems. The first ten amendments, also known as the Bill of Rights, clearly articulate what our individual rights are. Articles 1-3 clearly state what powers are granted to the federal government. Every other power belongs to the state governments. It’s all right there, expressed for everyone to see. Sure, no one alive today signed the Constitution, but no one alive today signed the “social contract” either. And unlike the “social contract,” if someone wants to change the Constitution, there’s an amendment process for that which we participate in directly, or indirectly through our elected representatives. Not so much for the “social contract,” which can be changed on a whim by the authority citing the “social contract.”
So the next time someone tells you we have to take action because it’s part of the “social contract,” tell them the only contracts you abide by, and that you expect them to abide by, are the U.S. and state constitutions.
Darrell J. Greenwald, Esq. is a freelance writer focused on political, legal and current events. He has a Juris Doctor (J.D.) and Master of Laws (LL.M.) in Entertainment & Media Law from the Fowler School of Law at Chapman University. Prior to attending law school, Darrell served as a forward observer and infantryman in the U.S. Marine Corps. You can reach Darrell on Twitter at @DGreenwaldEsq.
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