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Many Americans are dubious about big government, but the GOP, The Tea Party, and Libertarians have been the most vocally opposed to it. Especially the Patient Protection and Affordable Care Act, with conservatives decrying it as unconstitutional the moment it was signed into law and demanding its repeal. After the Supreme Court heard oral arguments back in March 2012, many observers thought that the Court would strike down the individual mandate as an undue expansion of federal authority over the citizen, since the mandate entails forcing all American citizens to get health insurance, a compelled market transaction. But then the Court surprising upheld “Obamacare”, as a tax rather than an expansion of power under the Commerce Clause, and rightwing America hyperventilated. Many people around the web and on Facebook were screaming about the new tyranny, the death of liberty, and how President Obama was the equivalent of Mao, Stalin, Pol Pot, and everyone’s favorite dictator analogy, Adolf Hitler. Seriously?
So apparently, for some, the modern definition of tyranny, an equivalent to a decree from Hitler, is a plan championed by a democratically elected President during his election campaign, that becomes a bill passed by the democratically elected House of Representatives and Senate, signed into law by the President, legally challenged by roughly half the State governments, and then upheld as constitutional by the Supreme Court. This really does not look like tyranny to me. To me this looks like a Madisonian Republic, a textbook version of the legislative process in which all three branches of government played their proper role.
Whatever you may think about the merits of the recent national healthcare solution, the notion that it represents some sort of decreed subjugation is just plain demagoguery. The exact same day that the Supreme Court ruled on the individual mandate they ruled on a different case in which they struck down the Stolen Valor Act, a popular law passed unanimously by the Senate in 2006 and signed by President Bush, a law which prohibited you from misrepresenting your own military service. In a vote of 6-3 the Court found that this uncontroversial law violated freedom of speech (Singh). The vitality of our system of checks and balances could hardly be more apparent.
So what is going on, why do so many people think President Obama is such an evil tyrant? The answer to this question might lie in a political treatise written thousands of years ago. Plato, in Book VIII of his classic dialog about political philosophy, Republic, uses his characterization of Socrates to explain the differences between the various types of political regimes which are possible and how they come about. Tyranny is appropriately identified as the worst, but counterintuitive to our modern expectations he suggests that democracy is the second worst kind of regime, due to its proclivity to result in tyranny.
When a democracy which is thirsting for freedom has evil cupbearers presiding over the feast, and has drunk too deeply of the strong wine of freedom, then, unless her rulers are very amenable and give a plentiful draught, she calls them to account and punishes them, and says that they are cursed oligarchs… the father grows accustomed to descend to the level of his sons and to fear them, and the son is on a level with his father, he having no respect or reverence for either of his parents… the master fears and flatters his scholars, and the scholars despise their masters and tutors; young and old are all alike; and the young man is on a level with the old, and is ready to compete with him in word or deed; and old men condescend to the young and are full of pleasantry and gaiety; they are loath to be thought morose and authoritative, and therefore they adopt the manners of the young… as the result of all, see how sensitive the citizens become; they chafe impatiently at the least touch of authority and at length, as you know, they cease to care even for the laws, written or unwritten; they will have no one over them…[s]uch…is the fair and glorious beginning out of which springs tyranny.
I think Plato’s cautions about democracy are a prescient depiction of at least some of what I see going on in America. I do not see us sliding toward tyranny at the moment, just taking our freedoms for granted. Except in our country of polarized Democrats and Republicans, the party out of power demagogues the other, pushes the Hitler analogies, and sees the end of freedom behind every corner, the liberals did it to Bush, now the conservatives are doing it to Obama, and libertarians call them both out. Crying oppression and worrying your loyal listeners about the threat of tyranny is a great way to excite the fearful masses and drive them to the polls, but this hyperbole is hampering actual governance.
The party in power is forced to defend their ground from attacks, the party out of power remembers want the power back, and the best way to do this is to block agendas. The country gets saved from bad policies from one point of view, but maybe good policies are destroyed by collateral damage from another point of view. Even after a signature policy is enacted the opposition vows repeal, whether this is the Bush Tax Cuts, the PATRIOT Act, or the Patient Protection and Affordable Care Act. How can anything get done if any change to the status quo, initiated from one side of the political spectrum trigger Newton’s third law of motion? The equal and opposite reactions within our polarized political system illustrate a modern disregard for communal cohesion, the culture war has left us with a dichotomous view of the social contract, each side only negotiating and agreeing with themselves.
States of Nature and Social Contracts
The idea of a social contract probably originates with Plato’s dialog Crito. In the story Socrates is confined in a jail to await his execution, having been convicted of impiety and corruption of the young. Crito, a good friend of Socrates, comes to the jail and offers him a chance to flee Athens, and to live out the rest of his years in one of Greece’s other city-states. Socrates refuses the offer and gives a powerful reason for doing so. He has benefited his whole life by living in Athens, a great city that has provided him and his family securities and amenities as good as any around, and he recognizes that the laws and the system of governance in the city are a significant factor in its greatness. To leave now would be to disgrace the life he had enjoyed. It would not be honorable. Even if he disagreed with the jury about his own conviction, he did not disagree with the system that allowed them to make the conviction. Plato did not spell out the idea of a social contract but he certainly implies it in Crito.
Aristotle views the state as a natural institution. That is, the formation of the state is a natural occurrence given the nature of humans. Humans are predisposed to form states due to certain physical realities about survival and procreation. Men form relationships with women in order to have children and the biological realities of a long pregnancy and child rearing make the formation of a family necessary for survival of the young. Even a family is not enough for humans though, because in order to survive and thrive we need and want a plethora of goods and services. In order for these items to be available for everyone’s benefit we need to collaborate by specializing and exchanging. The natural limit to this human organizational endeavor is a polis, or city-state, because this is the point at which the size of the state is at the point of self-sufficiency (Aristotle 108-110). Aristotle was fond of the doctrine of moderation in most things, so the state should not be too small like a village, or too big like an empire. Incidentally, he thought that the proper composition of the populace in a state, from a wealth distribution perspective, should be heavily dominated by the middle class, because this group is in a position to bridge the gap in value systems between rich and poor (Aristotle 121).
Aristotle defines humans as political animals that naturally form social bonds as a result of our capacities for rationality and language, as well as our inability to survive individually. He believes that politics is the dominant function of human organization because it is required for the stability and security of all other human interaction. Politics is the activity that governs the just distribution of resources and thus supports the primary goal of humans to be happy (Aristotle 108-110). Also, happiness is most likely to result from constructive human companionship and positive social interaction, so politics is also needed to keep these behaviors properly aligned. Aristotle believes that happiness is the ultimate end, or final cause, of human beings. That is, our desire for happiness underpins and drives our other desires. Happiness is an intrinsic end; a thing that is desired for its own sake. An extrinsic end in comparison would be a thing that is desired for its use as a means to an intrinsic end. For instance, I desire to hold a job (extrinsic), in order to earn money and other benefits (extrinsic), so that I can live secure, comfortable, and content, a circumstance most conducive to happiness (intrinsic).
Aristotle intends the meaning of “natural” to be a descriptive and observable fact about humans, rather than a normative judgment. His philosophical method of choice is empiricism, and his analysis of politics and the state is based on his own careful observation. However, the social structures and hierarchies of his time probably biased his observations, and led him to conclusions that though relevant for his time are relative to today’s norms. An obvious example of this is Aristotle’s endorsement of slavery, based on the observation that some men seemed naturally inclined to be possessed, and others seemed naturally inclined to posses them (Aristotle 110-112). Aristotle was confounded by what he saw as the natural tendency of some men to lack freedom, with the circumstantial fact that these men were actually enslaved, since a doctrine of empiricism in social settings limits the result set to the particular social setting that is being observed. This creates a similar problem with his view of the natural role for women. The subjugation of slaves and the domestication of women are no longer cultural norms in many modern societies, and are in fact considered immoral and barbaric institutions today. This change of cultural perspective exposes Aristotle’s other conclusions to criticism, since it exposes his observational limitations. Nevertheless, I believe his intuition that humans are political animals by nature is still incredibly insightful today.
Social contract theory proper did not become a truly formal topic for political philosophers until the Enlightenment, with many prominent thinkers writing about the subject, such as Hugo Grotius, Jean-Jacques Rousseau, and John Locke. For Thomas Hobbes in 1651 the social contract requires a strong sovereign power, referred to in the title of his book, Leviathan. We can understand why people need a strong ruler if we can imagine them in a state of nature, a scenario in which men have not formed the bonds of community. The state of nature is a hypothetical condition that is not believed to have actually existed, just a thought experiment. Hobbes predicts that without a government to enforce laws people will live in a state of anarchy, of every person perpetually at war with every other person. Because men need to survive, but also because they are competitive and seek reputation, quarrels are easily caused between them. On top of that, men are all created relatively equal, in that even the strongest in physical form or in mental capacity can be overcome by weaker individuals who join together to suppress them. In the state of nature, life would be “solitary, poor, nasty, brutish, and short”, and no growth and human progress could happen (Hobbes 208). Even if people were not actively at war with each other, they would always be expecting violence and would need to spend their time establishing a defense, or initiating a pre-emptive strike. This is time and energy taken away from actions that lead to constructive growth.
To pull themselves out of the state of nature people create a social contract, which are covenants to jointly give up some freedoms in order to be free from those same actions committed by others. So we agree to live and let live, and to honor each other’s private property rights (Hobbes 212). Even under a social contract people will not honor their agreements if they can find a way to benefit from the protections of the covenants, while simultaneously violating the covenants at every opportunity since this would give them advantages. Because people naturally do not have an incentive to honor such an agreement, the rule of a strong sovereign to enforce the laws is a necessity. A powerful ruler can keep the populace in check through the fear of punishment for violation of the covenants. Without the covenants and the strong sovereign to back up these laws, there could be no security for all (Hobbes 209, 214-215). For Hobbes the social contract demands a monarch or strong central authority.
I think Hobbes view of humanity is too pessimistic. I agree that some people will try to abuse the rules, but that for the most part people want to get along. Aristotle’s explanation for why people naturally form communities is more realistic to me, because it feels more natural than Hobbes’ version of the state of nature. I can picture the anarchy that Hobbes’ fears and I understand situations where the world might appear this way, like in a war zone. However, I think that people are for the most part naturally inclined to work together as Aristotle thought, and that given a chance they would prefer to live harmoniously than to fight. Lasting human cooperation is achievable without the need to for a despot or strongman. The insight from Hobbes that really matters for my thesis is the notion that the social contract is ineffective if it is not enforceable through some sort of power relation. This allows entails a potential for feelings of subjugation and disenfranchisement in those who are on the weaker side of that power relation, such as minority factions on the losing end of the vote in a democratic system.
John Rawls put a new spin on social contract theory much more recently in 1971. Rawls’ theory of justice is justice as fairness. There is a distinction between justice and fairness, but the fairness aspect of justice in Rawls’ theory comes from the method by which justice is determined, a fair method. The method is a twist on the classic social contract theory. The equivalent of the state of nature in Rawls’ idea is the original position, the initial point at which negotiations on the form of a future government take place. The twist in Rawls’ original position is that everyone is required to bargain from behind a veil of ignorance. This veil of ignorance means that each participant is ignorant of everything about themselves and everyone else. No one ones knows their own situation regarding sex, race, age, social status, wealth, political persuasion, or any other characteristic about their position in life (Rawls 672-673). Assuming they are rational, when people decide on what justice should be from an original position, behind a veil of ignorance, the determination they make will be by definition fair. No one has any advantage in the negotiations and so everyone will agree to a fair arrangement through pursuance of a minimax strategy (Rawls 289). This is a strategy of maximizing the benefits for the weakest position, because everyone is willing to give up the potential for maximum benefit in order to avoid the risk of maximum detriment (Rawls 675-677). This is how justice becomes fair.
Rawls’ social contract insight is much less pessimistic than Hobbes, and I appreciate that. I agree that using the veil of ignorance does indeed set up the right conditions for a state, which will result in a system of justice that is fair. The only tricky thing about translating Rawls’ theory of justice into real world results is that the veil of ignorance only happens in the thought experiment. How do we get people to sign on to the liberty principle and the equality principle when they are already aware of the advantages or disadvantages that are inherent in their original position? After all, reality is full of vested interests. For example, if in America we were to negotiate health care policy from behind a veil of ignorance, we would likely approve some sort of guaranteed minimum coverage for all, but in real life the absence of a veil of ignorance creates an environment where people do know their situation, so that many who already have coverage don’t want to give up what they have, even if it mean others will not have any coverage at all. Some may sabotage the negotiations, because they just don’t like those who they are negotiating with. Without a veil of ignorance there are any number of vested interests, power differentials, distrusts, and personal biases that can get in the way of constructing a fair set of rules. Rawls believes that there are two outcomes which develop through bargaining from the original position. These are primary rules that determine the basic structure of how to govern, rather than specific declarations of what is just or unjust. The first outcome is the liberty principle, which is that people would agree to the greatest amount of freedom compatible with the same amount of freedom for everyone else. The second outcome is the equality principle, which is that everyone would agree to the same equality compatible with the same equality to everyone else (Rawls 689). A caveat to the equality principle is the difference principle, which is that people will agree to inequalities only where these result in increased benefits for the least advantaged in the populace (Rawls 680). For example, not everyone can or should be a doctor and it would make everyone better off if the system had the type of inequality built in which allows only qualified individuals to handle specialized tasks. We can’t all be doctors, lawyers, rock stars, or presidents, so we need the kind of inequality that leads to the optimum division of labor.
I have a friend, Chris Wagster, who shares my interest in philosophizing, sometimes discusses and debates with me about a political, economic, social, or scientific issue that is riding the news that day. Recently he lamented to me that by his estimation most Americans had forgotten about the social contract, and many of us were letting our own notions of personal liberty invade the peace, security, and liberty of others, without recognizing that we were doing so. When the externalities of commerce pass on costs to citizens outside the market, this requires regulation. The enforcement of guidelines on these activities is not tyranny, but many among us decry government regulations as the death knell of liberty in American, too selfish to admit our obligations to the society we live in.
Chris told me that too many of us take the significant liberties we have for granted, and we also take for granted the way in which public goods, institutions, and infrastructure play a role in improving our lives. He suggests that everyone should have the opportunity to live in a country without strong central authority for a while, like Somalia or Sudan, and then see how we like not having our allegedly oppressive government. This could be like the spoiled American teenager’s equivalent of the right of Rumspringa, when Amish youth decide whether to remain in their community or join the relative anarchy that is America. In regards to the issue of national health care, Chris made the point that we would not need an individual mandate for healthcare if uninsured people were willing to sign away their entitlement to all hospitalization, even emergency room care, without cash up front. This would be a true social contract, but probably not the one that the majority of us really want.
I agree with Chris’ observations. We need to reaffirm our commitment to the social contract. Of course, those who believe we are living under tyranny, or are at least sliding towards one, as represented by things like individual mandates, social safety net entitlements, the Federal Reserve System, and the TSA, would probably agree with a certain kind of social contract, just not the liberal or communitarian kind. The Tea Party movement, Palinites and Paulites alike, want to reaffirm Americas commitment to its founding values, at least how they interpret them. Those how favor a limited government interpretation of the Constitution, an originalist understanding, or a laissez-faire Lockner v. New York reading, they don’t oppose a social contract by any means, they believe that the proper and traditional American social contract has been lost through disregard by progression. On the other hand, progressives see the need for an evolving social contract that reflects the changing times and circumstances, and this puts these value systems in direct opposition, even though they both embrace a social contract concept on their own divergent terms.
The challenge is getting us to all agree to accept the same conventions. Perhaps the solution is a commitment to the system by which the conventions are chosen, honoring the tradition of American government as its evolved over time, and avoiding an adherence to uncompromising ideological standards which necessarily exclude the possibility of valid views from the other side. Whether I like the Patient Protection and Affordable Care Act or not, it was established through the traditional mechanisms by which America has adapted its social contract since the founding. My commitment to the system, instead of following a particular form of idealism, leads me to see even laws that I do not like as legitimate nonetheless.
To someone like me, a moderate independent, the social contract is going to need to adapt to the social setting, but it also needs to maintain a traditional core and avoid revolutionary changes. I recognize the reality of tension in the political system, expecting and desiring that the power relations between left and right will wax and wane, our system will at times be more or less progressive. Currently I am leaning to the left, because this is where I see the most balance, the greatest focus on reality, and because the rightwing tilt is too extreme for me right now.
But I want to keep an open mind, and even though I am campaigning for, and will vote for, President Obama’s reelection, I will not panic if he loses and Romney becomes the next president. I will not fear this as tyranny. I will not buy into any conspiracy theories designed to demagogue and delegitimize Romney, I will not hollowly threaten to move to Costa Rica, and I will not demand that my representatives in Congress spend their time making sure he fails. A social contract that respects institutions before ideologies implies that sometimes things may go my way, and other times they may not, but what really matters is that there is a fair way to balance power and that we take part in the decision process. As far as I can tell this is still the America I am living in.
Jared Roy Endicott
Aristotle. “Politics”. Princeton’s Readings in Political Thought. Eds. Cohen, Michael and Nicole Fermon. Princeton: Princeton University Press, 1996 (original 384-322 B.C.). 107-123.
Hobbes, Thomas. “Leviathan”. Princeton’s Readings in Political Thought. Eds. Cohen, Michael and Nicole Fermon. Princeton: Princeton University Press, 1996 (original 1651). 205-242. Print.
Plato. Republic. The Internet Classics Archive. 380 B.C. Web.
Plato. Five Dialogues: Euthyphro, Apology, Crito, Meno, Phaedo. Second Ed. Trans. G.M.A. Grube. Indianapolis: Hackett Publishing Company, Inc., 2002 (originals 399-380 B.C). Print.
Rawls, John. Princeton’s Readings in Political Thought. Cohen, Michael and Nicole Fermon. Princeton: Princeton University Press, 1996 (original 1971). 667-697. Print.
Singh, Tejinder. “Court Holds Stolen Valor Act unconstitutional, dismisses First American Financial v. Edwards”. SCOTUS Blog. 28 Jun 2012. Print. 14 Jul 2012.