In 1762, Jean-Jacques Rousseau came forth with the philosophical idea of the “Social Contract”, which is premised on the idea that man is born free, but in order to have an orderly society, a contract is needed to set forth “a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before.” Of The Social Contract, Or Principles of Political Right, (Du contrat social ou Principes du droit politique) (1762) by Jean-Jacques Rousseau.
The clauses of the Social Contract, as Rousseau stated, were:
“so determined by the nature of the act that the slightest modification would make them vain and ineffective; so that, although they have perhaps never been formally set forth, they are everywhere the same and everywhere tacitly admitted and recognised, until, on the violation of the social compact, each regains his original rights and resumes his natural liberty, while losing the conventional liberty in favour of which he renounced it.”
This basic idea of the Social Contract is very important. In the United States, we all live within the relatively loose confines of our Social Contract, which is set forth in our Constitution, our laws, and even our unspoken rules and customs. Each individual has as much rights as another, and each individual’s rights only extend to the point where another’s rights are infringed upon. However, each individual has a different tolerance for breaches of the Social Contract and reacts to breaches in different ways, and for different reasons.
A simple example can be used to demonstrate the complexities of the Social Contract, a breach of the Social Contract, and a reasonable reaction to such breach.
While standing in line for a ride at Disney, a man approaches the front of the line and “cuts in”. My reaction, and perhaps the reaction of others, would be to confront this obvious breach of the Social Contract and preserve my right not to wait longer in line due to another’s inconsiderate disregard for my rights. Others may say nothing and view such a breach as inconsequential. Some may consider speaking out against the injustice, but may consider the size and disposition of the individual “cutting” in line and use such determination as a decision point in whether to confront the individual or not – which is an obvious parallel to the effectiveness of government force in limiting the rights of it citizens. These are all reasonable reactions and very similar to other, more serious breaches of the Social Contract.
We adjust our Social Contract regularly. For example, some individuals do not want to wait in line for rides at Disney and the economic markets – the great re-calculator of social and economic contract – have adjusted and provided for this demand. Individuals who despise waiting in line and feel their time is more valuable than others can pay not to wait. The Social Contract was essentially altered by several theme parks when fast-passes and other alternative line-cutting methodologies were implemented – with the trick being in the pricing, which is a great, but separate, economic discussion. In the end, individuals accepted the alternatives.
The mindset of the non fast-pass individual, watching the fast-passers breeze their way through a crowded theme park, may still be that of slight righteous indignation. However, once the individual assesses the cost of their own fast-pass, and internally reconciles that to their own alternative market basket, the perceived breach of the Social Contract typically disappears. The choice is now his and his alone to wait in line or pay for a fast-pass, which preserves liberty.
So why the socio-economic analysis of the Social Contract and fast-passes? Simple. The concept of the Social Contract, and its basic understanding, lie at the core of virtually every civil or criminal case, most political squabbles, and this week what many, including myself, believe is one of the most important Supreme Court cases in more than a generation.
The Supreme Court will, this Monday, Tuesday and Wednesday, dedicate more than five hours to determine whether the individual mandate contained in the Patient Protection and Affordable Care Act (the “Act”) is constitutional, and if unconstitutional, what other provisions of the Act must be eliminated as a result. At its core, whether a provision requiring an individual to buy health insurance or pay a penalty is unconstitutional, is really just a question of whether the individual mandate is a breach to our Social Contract. Or, did the government cut in line?
As an attorney, I could espouse one view or another, and cite case names like Wickard v. Filburn, Lopez, or Morrison, but I will not. Greater legal minds than I have written volumes on the individual mandate over the last several years, covering every conceivable interpretation of analogous law and legal theory. Instead, I will return to the concept of the Social Contract and the importance of a reaction to a breach thereof.
A few years ago, back in 2009, the government began spending immense amounts of taxpayer dollars to bail out financial service companies and attempt to rescue a faltering economy. Immediately thereafter, the government passed the Act. In the wake of these actions, a movement grew, known by many as the Tea Party. As fractured and confusing as the Tea Party has been at times, and despite the criticism they receive from many – including myself – its members are simply dissidents, telling a line cutter to get in the back of the line and respect the liberties of others. Had the Tea Party and other individuals not raised such ire at the actions of the government, it would have been assumed that the bailouts, and the Act, were within the acceptable, ever-changing parameters, or the modern day Social Contract. And this is why the Tea Party, and groups like them on both sides of the political spectrum are important. Let’s be honest, Attorney General’s are typically more apt to take action when the winds from populist voices are filling their sails. But whether small or large, these populous movements are very important.
Americans have always been slightly rebellious, and often very sensitive to perceived or actual injustice. That is our history and what makes us a great nation. However, whether it is racial or other inequalities, it has always taken a movement of some kind to significantly alter our Social Contract; and I sincerely hope that aspect of American life never changes. The non-violent, continuous, logical, and intelligent reconstruction of our Social Contract is incredibly important to our progress and prosperity – and exactly what our founders intended to happen. Blind obedience and acceptance never ends well, and for the Tea Party’s role as the dissident, I tip my hat to them. (For an interesting aside, read Stanley Milgram’s 1974 article, The Perils of Obedience, or the Book Obedience to Authority: An Experimental View to really dig deep into the importance of speaking out against real or perceived injustice).
In the end, whether the Act constitutes a perceived or actual breach of the Social Contract is really all that the Supreme Court will decide next week. This is the Supreme Court’s defined role, pursuant to the power we have granted them in the Constitution – our most respected Social Contract – and I trust that they will do their jobs.
More importantly, we have to remember our role in the Social Contract. No legislative body in the United States has any power, except that which is granted to them by us, Republicans and Democrats alike. No individual holds public office except through the consent granted by us. So please, whenever the legislature or a politician cuts in line, call them out.