Contracts, Political Commitments, and Freedom

In 1867, Lysander Spooner, a hero to many of today’s critics of Abraham Lincoln and one of the sixteenth president’s most vociferous postwar detractors, defended [white] southerners against the charge that they were traitors in the recently concluded Civil War, in part because they had not actually consented to the Constitution. “The number who actually consented to the Constitution of the United States, at the first, was very small,” Spooner reasoned. Consequently, “the adoption of the Constitution was the merest farce and imposture, binding upon nobody. The women, children, and blacks, of course, were not asked to give their consent. . . . Furthermore, those who originally agreed to the Constitution, could therefore bind nobody that should come after them. They could contract for nobody but themselves.” (emphasis mine)

I was recently alerted to an additional, or potential, deficiency in Spooner’s argument (for more see Loathing Lincoln, pp. 72-75) when reading the philosopher Annette Baier’s landmark 1986 essay, Trust and Antitrust.” In that piece, and with great wit, Baier observed the following:

The great moral theorists in our tradition not only are all men, they are mostly men who had minimal dealings with (and so were then minimally influenced by) women. With a few significant exceptions (Hume, Hegel, J.S. Mill, Sidgwick, maybe Bradley) they are a collection of gays, clerics, misogynists, and puritan bachelors. It should not surprise us, then, that particularly in the modern period they managed to relegate to the mental background the web of trust tying most moral agents to one another, and to focus their philosophical attention so single-mindedly on cool distant relations between more or less free and equal adult strangers, say, the members of an all male club, with membership rules and rules for breaking for dealing with rule breakers and where the form of cooperation was restricted to ensuring that each member could read his Times in peace and have no one step on his gouty toes. Explicitly assumed or recognized obligations toward others with the same obligations and the same power to see justice done to rule breakers then are seen as the moral norm.

Now, I want to be clear that I am not saying that Spooner fits all the characteristics Baier enumerated or that his works cannot be read with benefit.  But she reminded me of one of the limitations of our political tradition and of the unhappy consequences if Spooner’s views were ever implemented. Spooner, who never married and rejected “social contract theory,” believed that those who originally agreed to the Constitution, could thereby bind nobody that should come after them. They could contract for nobody but themselves. They had no more [*5] natural right or power to make political contracts, binding upon succeeding generations, than they had to make marriage or business contracts binding upon them.” The implication of such a stance, it seems to me, would be that Americans, in order to truly be “free,” would have to revisit fundamental matters of political consent, or rewrite their entire Constitution, on a relatively frequent basis.

But imagine how destabilizing, not to mention exhausting, this would be in practical terms. As the political theorist Stephen Holmes put it, “An inherited constitution can institutionalize as well as stabilize democracy. It is not only, and not essentially, a hedge against arbitrary government. For instance, it also designs and erects those institutions that render rulers accountable. Because it is relatively hard to change, a constitution can disencumber the present generation. Thus, it cannot plausibly be characterized as an oppressive force, an autocratic attempt by the past to enthrall the future. Precommitment [to previous a Constitution] is justified because it does not enslave but rather enfranchises future generations.” If we are continually revisiting basic political commitments we would be living in a nightmare world of endless political argument and/or legal disputation. And really, who would have the time for such controversy? The wealthiest Americans, I would imagine. And who might benefit? Lawyers, perhaps?

Corey Robin (full disclosure: Corey is a friend of mine) has written about what he thinks such a society – “neoliberal,” he calls it – might look like (and for the purposes of this post I wonder if this might apply as well to a world where we are constantly renegotiating previous generational commitments or using private companies to fulfill their “contracts” to us):

In the neoliberal utopia, all of us are forced to spend an inordinate amount of time keeping track of each and every facet of our economic [and political?] lives. That, in fact, is the openly declared goal: once we are made more cognizant of our money, where it comes from and where it goes, neoliberals believe we’ll be more responsible in spending and investing it. Of course, rich people have accountants, lawyers, personal assistants, and others to do this for them, so the argument doesn’t apply to them, but that’s another story for another day.

The dream is that we’d all have our gazillion individual accounts—one for retirement, one for sickness, one for unemployment, one for the kids, and so on, each connected to our employment, so that we understand that everything good in life depends upon our boss (and not the government)—and every day we’d check in to see how they’re doing, what needs attending to, what can be better invested elsewhere. It’s as if, in the neoliberal dream, we’re all retirees in Boca, with nothing better to do than to check in with our broker, except of course that we’re not. Indeed, if Republicans (and some Democrats) had their way, we’d never retire at all.

In real (or at least our preferred) life, we do have other, better things to do. We have books to read, children to raise, friends to meet, loved ones to care for, amusements to enjoy, drinks to drink, walks to take, webs to surf, couches to lie on, games to play, movies to see, protests to make, movements to build, marches to march, and more. Most days, we don’t have time to do any of that. We’re working way too many hours for too little pay, and in the remaining few hours (minutes) we have, after the kids are asleep, the dishes are washed, and the laundry is done, we have to haggle with insurance companies about doctor’s bills, deal with school officials needing forms signed, and more.

What’s so astounding about Romney’s [private unemployment accounts] proposal—and the neoliberal worldview more generally—is that it would just add to this immense, and incredibly shitty, hassle of everyday life. One more account to keep track of, one more bell to answer. Why would anyone want to live like that? I sure as hell don’t know, but I think that’s the goal of the neoliberals: not just so that we’re more responsible with our money, but also so that we’re more consumed by it: so that we don’t have time for anything else. Especially anything, like politics, that would upset the social order as it is.

As a result, I don’t think that Spooner was correct about consent, for both theoretical and practical reasons. The “stateless society” he and his modern-day compatriots envision would be powerless, as Holmes explains, “to overcome anarchy” or “to correct the unbearable maldistributions of private power.” To quote Abraham Lincoln, “Have we no tendency to the latter condition?”


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