The Social Contract Is Null and Void

by Anthony Gregory

We have all heard the mantra that we owe it to society to follow its rules – usually meaning, the government’s laws – because of a “social contract,” which binds us together in peaceful and manageable coexistence, without which our culture would be a chaotic anarchy.  

Many libertarians have long argued that we do not need any vague “social contract”; an explicit one already exists: the U.S. Constitution. Though even a principled minarchist would object to the Constitution’s provisions for the government to carry out such functions as establishing post offices and coining money, its Bill of Rights, say these constitutional minarchists, would allow for a government quite limited, and quite tolerable, by reasonable libertarian standards.  

The United States government has operated beyond constitutional limits for its entire history, but constitutionalists would still argue that the “sacred” document should be respected by those of us who value freedom. According to them, the real world presents us with alternatives, none of which achieves perfection, but some of which, like a Constitutional republic, are clearly better than others, such as an unlimited democracy or communist dictatorship.  

The recent ruling from the Fifth Circuit Court, legitimizing warrantless searches of homes by police, has made the constitutionalists’ case that much harder. Historically, when police would violate the Bill of Rights in a drug raid or in search of weapons, illegally turning someone’s home or vehicle upside down without a warrant, constitutional minarchists would correctly condemn such abuses, but then in the same breath naively insist that the courts would correct the injustice, if the matter came to them for their judgment. Now that a federal appeals court has outright nullified the Fourth Amendment, it’s hard to imagine what court apologists will say. Perhaps the Supreme Court will come to the rescue.  

I doubt it. The Supreme Court has made repugnant rulings throughout its entire history. It declared that blacks had “no rights a white man is bound to respect.” It okayed forced sterilization of indigents -- back when the United States was experimenting with eugenics programs that would later be mimicked by the Nazis – on the crude basis that “three generations of imbeciles is enough.” It has either supported or been completely ineffective in stopping the worst abuses of human rights in our country’s history – from the ethnic cleansing of American Indians to Lincoln’s suspension of Habeas Corpus, from Japanese Internment to wartime conscription, from the censorship under the Sedition Act to today’s Guantanamo Bay abomination, and on and on and on (to say nothing of its historical failure to stop aggressive war).  

If the Bill of Rights has any weight at all in its letter, the courts have been as guilty of ignoring and violating it as the other branches of the state.  

It should be no surprise that the Fifth Circuit Court would hand police the power to search our homes without a warrant. The courts are agencies of the government, after all, and expecting the state to protect your rights from its abuses is comparable to hiring the mafia to protect you against Al Capone’s extortion.  

The Constitution has always been an intolerable social contract, not only because it establishes a government with way too much power, but also because its enforcers and arbitrators are the same interested party. Obviously it would be a freer country if the U.S. government obeyed the document more closely, but that’s as utopian a dream as any.  

If the state can willfully break its own rules and get away with it, no one can expect the people to follow every one of its thousands of laws and millions of regulations it imposes on them. In America , everything has become illegal. Americans go to jail for not filling out forms properly, even if they did so with the advice of the federal government.  

The government expects us to break its laws, after all. That’s why it has hundreds of thousands of armed agents and a prison system housing two million people. Government depends on law-breakers to survive and thrive, so it passes enough laws to ensure there will be enough lawbreakers to justify its enormous and growing size.  

It’s a cliché among libertarians to deny having signed any mythical, malleable social contract. I haven’t signed one myself. But I’ll make the following promise to anyone who’s interested:  

I will not initiate force against you, or commit transgressions against your rightfully held property, if you follow a similar guideline in dealing with me, unless you initiate force upon another, who delegates to me the right to forcefully act against you in his or her behalf.

Of course, this isn’t original. It’s the zero aggression principle, upheld by libertarians and generally followed by most people in their day-to-day interactions with each other.  

The most rational legal guidelines I can think of are simply not to violate any law that circumstantially overlaps nicely with the zero aggression principle (such as laws against murder, theft, etc.), and not to violate any law that you’re likely to get punished for, beyond what you can tolerate.  

I’m at least saying people should follow laws that make sense and not break laws that are likely to get them in trouble. The government doesn’t even have this limiting its behavior. Everything it does violates someone’s rights, and it gets caught repeatedly in the act of particularly egregious crimes – such as dropping bombs on thousands of innocent people over false alarms – but the government can’t go to jail.  

The law itself is not sacred. How could it be, when the government courts have ruled in favor of warrantless searches and against the Fourth Amendment, which is supposedly a part of the “Supreme Law of the Land.” And if warrantless searches are supposedly constitutional, then there’s nothing vaguely libertarian in upholding the Constitution as an ideal.  

Those libertarians who love the courts and uphold the Constitution as a good “social contract” should reflect upon the way the Courts have so nonchalantly changed the terms of this contract. Police can now search your home more or less at whim. We should have expected this to happen in America , the land full of people who do not mind the encroachment of fascism because fascism could never happen here.  

But the social contract wasn’t being followed anyway. Some Libertarians love to talk about how simple and perfect a document the Constitution is, but in truth it isn’t. It contradicts itself many times, and any defense of it on libertarian grounds requires at a minimum the belief that one or more of its Amendments were never legally ratified. As if the Constitutional Convention itself was anything more than a statist coup d’Etat.  

I certainly won’t stand in the way of noble attempts to curb government abuses via the Bill of Rights. I might even join in. As long as the government exists, I’d definitely prefer it not to infringe free speech, take away our guns, or quarter solders in our homes. Anything within the bounds of the zero aggression principle that limits the power of the state and relieves people of its oppression is fine with me.  

But the extent to which a constitution is enforceable relies on the vigilance and good nature of the people. Why bother hoping to one day have a population dedicated to the Constitution, when it is so much simpler to teach people the zero aggression principle?  

I modestly suggest we adopt some simple, consistent, and less cumbersome social rules than what exists in the Constitution. Let’s respect each other’s rights and property, honor our promises, keep our hands and feet to ourselves, and stop expecting the government -- which has never been able to protect us from common criminals -- to protect us from itself.