The Trouble with the Constitution and the “Social Contract”

Politics is of its very nature biased in favor of intervention and planning. Even in its “minarchist” or “night-watchman” version, politics is based at root on the idea that some decisions must be made coercively and imposed on unwilling minorities — or even majorities, as the case may be. This is contrary to the principle we observe in private life every day: the consent of both parties is necessary for a transaction to take place.

The state never stays “limited” in the long or even medium run, as we’ve seen for ourselves, and before long it worms its way throughout civil society. Once it becomes entrenched in some area of social life that had previously been managed by voluntary means, people grow accustomed to the state’s new role, even coming to view it as indispensable. The spirit of spontaneous, voluntary cooperation therefore atrophies and dies. This, in turn, is cited as justification for still further state interference, and the cycle continues.

In the modern state politics is coupled with government education in a one-two punch to the voluntary sector. That is, the moral principles and the unstated assumptions that govern politics have already been drilled into the heads of the young well before they become eligible to vote. By that time they have imbibed every comic-book platitude about the selfless public servants who are just out to improve everyone’s well-being. Were it not for the indoctrination of the public from a very young age, the state’s racket would be far more obvious and transparent.

(Incidentally, the first lesson kids in government schools learn is that if enough people want something — “free” education, for example — you should get it by having goons seize the funds from your neighbors. Why, how else could anything get done?)

The best known of the intellectual constructs by which the state seeks to legitimate itself must be the “social contract.” To evaluate this construct properly, consider how contracts function in civil society. You and I are interested in, say, an exchange of services for money. You are going to paint my house, and I am going to give you a cash payment. We spell out the terms of our understanding in a contract.

These terms may include the nature of the work, a deadline by which the task must be completed, and perhaps even the name of an independent arbitration service we agree to consult if one of us believes the contract is not being properly honored.

Contrast this with the state’s so-called social contract. Here, nobody signs anything. You are assumed to consent to the state’s rule because you happen to live within its territorial jurisdiction. According to this morally grotesque principle, you have to pack up and leave in order to demonstrate your lack of consent. The state’s authority over you is simply assumed (or it takes the form of a contract nobody ever signed), with the burden of proof on you, rather than — more sensibly — on the institution claiming the right to help itself to your life and property.

If my cooperation with the system is only under duress, and my repeated insistence that I do not consent, is insufficient to indicate my lack of consent, then what kind of crazy moral system is this?

Is there an analogous situation in the private sector? Do we just assume you intended to buy a car or a house, or to enter into a labor agreement, on the basis of dubious inferences? Do we not instead sign form after form, drafted in meticulous legal language, to ensure that the nature of the activity in question is clear to everyone?

Oh, but the state provides services, and you should pay for them! Again, though, when anyone else provides services, I decide for myself whether I want to use them (in which case I pay), whether I prefer an alternative provider of the service, or whether I choose not to avail myself of the service at all.

Ah, but the services the state provides aren’t the kind that can be provided competitively on the market, so you must be corralled into paying for them, like them or not.

But this is mere assertion. Education is provided on the market, and always has been. Scientific research was funded more copiously per capita before the state became heavily involved. Poverty relief took place on a vast scale long before the world’s welfare states amounted to much of anything. Even security and legal services can be and are quite effectively provided on the free market.

All right, so the state’s social contract may not amount to a hill of beans, and in fact is a transparent attempt to legitimize behavior we would not tolerate from any other actor or institution, but what about written constitutions? Aren’t these at least partly contractual in nature, and don’t they restrain government from the worst abuses?

Let’s consider the United States Constitution as a test case, since conservatives and even many libertarians point to it as one of the most brilliant political documents ever drafted.

The minarchist calls for a “night watchman” state, a state that limits itself to the production of security and adjudication services. (I shall leave aside the cognitive dissonance in warning about the dangers and wickedness of the state on the one hand, while simultaneously proposing the absolute necessity of the state in providing the most important and fundamental services of all.)

Interestingly, the US Constitution actually calls for something less than a night-watchman state, in the sense that most security services are assumed to rest with lower levels of government, and are not a federal function in the first place. So this would appear to be an excellent test of the “limited government” position, for here is a document that begins with such a limited government that it’s even less government than minarchists themselves would call for.

Well, how has it worked out?

For the answer to that question, simply look around you.

“The Constitution hasn’t been obeyed,” comes the reply. Well, no kidding.

What reason would politicians have for obeying the Constitution? Once it is believed that the state may legitimately initiate force and levy taxes, it’s not much of a leap to consider how those powers might be turned to the advantage of Industry X or constituency Y. Meanwhile, people who protest this development as a departure from the Constitution will be an isolated minority left in the dust, laughed at by the plotters and schemers who can’t believe anyone seriously expected this institution to remain limited. Where’s the money in that?

No, the Constitution cannot be exonerated. If it lacks institutional safeguards to prevent the egregious abuses of our own day, then it is a failure. Human beings have failed to follow it? Well, did we not realize from the start that fallible human beings would be in charge?

In Lysander Spooner’s unforgettable formulation: “But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

Strictly speaking, the US Constitution was conceived of as an agreement among the states, to which the US government, being the creation of that agreement, was not itself a party. But for the sake of argument, let’s do as some do, and think of written constitutions as being roughly analogous to an agreement between the government and the people.

Who gets to adjudicate disputes over whether the terms of this contract are being violated? An independent third party? Of course not. The state’s own courts decide. And in the case of the US, those courts are populated by people trained in US law schools — where, with insignificant exceptions, students are taught to believe preposterous, ahistorical interpretations of the Constitution’s most important clauses: commerce, general welfare, “necessary and proper,” and the Supremacy Clause.

Good luck waving your copy of the Constitution in that setting.

So there is certainly something fishy about the state. We are urged to apply special rules in our moral evaluation of this institution, rules we would indignantly reject in any other context.

As for the state’s supposedly indispensable role, once we grow up and leave behind the scare tactics from our sixth-grade textbooks — without your public servants you’ll starve, or be poisoned, or drive an exploding car — we discover how little we need the state after all. The historically unprecedented explosion in living standards all over the world had everything in the world to do with market-driven capital accumulation, and zero to do with government spread-the-wealth schemes.

The truth of the matter is this: the only welfare the state is concerned about, at root, is its own. As Murray N. Rothbard was fond of pointing out, we can get to the heart of what the state is really all about by considering the kind of crimes it treats the most severely:

We may test the hypothesis that the state is largely interested in protecting itself rather than its subjects by asking: which category of crimes does the state pursue and punish most intensely — those against private citizens or those against itself? The gravest crimes in the State’s lexicon are almost invariably not invasions of private person or property, but dangers to its own contentment, for example, treason, desertion of a soldier to the enemy, failure to register for the draft, subversion and subversive conspiracy, assassination of rulers and such economic crimes against the state as counterfeiting its money or evasion of its income tax. Or compare the degree of zeal devoted to pursuing the man who assaults a policeman, with the attention that the State pays to the assault of an ordinary citizen. Yet, curiously, the state’s openly assigned priority to its own defense against the public strikes few people as inconsistent with its presumed raison d’etre.

If the nature of the state is as I have described it, we should not be surprised by two related phenomena: (1) the glorification of the state, its record, its motives, and its nature; and (2) the demonization of the free market economy, which operates independently of the state. The public must be led to consent intellectually to its own subjection, to come to believe that the state’s confiscations and abuses are truly for their own good. What the state needs is to bring about a society-wide Stockholm Syndrome. It accomplishes this task through a combination of (1) fear; and (2) persuading us of its legitimacy.

Libertarians must continue to take direct aim at both of these. First, fear: many people believe, based on what their formal education taught them, that under laissez faire big business would exploit everyone, the environment would be despoiled, and children would be working in factories. We have plenty of ammunition to use against these concerns.

But legitimacy is truly the state’s most potent weapon. Legitimacy is what allows the state to get away with its moral enormities. It is because the public believes state activity to be legitimate that it tolerates it even for a moment. This is why the state and its hangers-on are so eager to ensure we buy into the social contract nonsense, and the various other means by which the state seeks to justify itself. When that legitimacy is cast into doubt, things happen.

Recall what Ron Paul says when he’s asked what he thinks about the fact that roughly 50 percent of Americans don’t pay income tax: “We’re halfway there!”

Libertarians should have thought the same way about Donald Trump’s threat to undermine the legitimacy of a President Hillary Clinton: if one major presidential candidate’s legitimacy is undermined, we’re halfway there!

No matter how the election turns out, libertarians should be about their proper business: de-bamboozling the masses, exposing the state for what it really is, and defending liberty as the root of everything we cherish.

[Originally published as “The Trouble with Politics,” November 8, 2016.]