Contracts and Natural Law Fundamental Rights (Part III)

Americans should never forget the preamble of the Declaration of Independence has been critical for providing civil rights to minority classes of citizens in United States history where the Constitution failed: ending slavery, woman’s suffrage, and other civil rights fights. For instance, the Missouri Compromise used the Declaration of Independence social contract theory to prevent slavery in certain territories; the women’s movement started in 1848 with the Declaration of Independence; the labor movement in the 1800s found both political and social freedoms in the Declaration of Independence; Abraham Lincoln moved the nation towards war using the principles found in the Declaration of Independence; communist organizer, Eugene Debs, discovered how the Declaration of Independence could support his labor movement; three time Democratic Presidential Candidate, William Jennings Bryant, used the Declaration of Independence to point out American hypocrisies dealing with persons of newly acquired territories in the Spanish-American War (Imperialism: social contract does not support conquering and governing those who do not consent); and Martin Luther King’s “I have a Dream” speech is based on those social contract theories found in the Declaration of Independence.

All that being said, early in American history and up to the present time, the Declaration of Independence has been attacked by many saying it has no relevance to the Constitution and it does not apply to everyone equally. This surely explains the Southern philosophy to defend slavery and even the Northern philosophy to deny free-Negroes and women equal rights. In their famous debates Senator Stephen Douglas would say Abraham Lincoln was no different than King George III. Douglas would elaborate by suggesting just as King George III passed laws regulating property (taxes) without consent, Lincoln’s emancipation of slaves would be no different. However, most people, like Douglas, would confuse the social contract theory of popular sovereignty with majority rule democracy: they are not the same because majority rule democracy places sovereignty in the government even without consent of the people. Put another way, Douglas believes it is the will of majorities to decide government policy based on political sentiment at the time and not that the natural law fundamental rights of every person are the same. Of course, Southerners had no issue arguing in favor of Lockean social contract theory and the Declaration of Independence when they held they had a right to revolution and to secede from the Union.

Social contract theory has taken many forms in world history and it is important to show its progression in the United States history. In particular, to show how America has veered from the social contract theory found in the Declaration of Independence. Interestingly, early American history saw both the Patriots and Loyalists favor the social contract theory put forth by Samuel Pufendorf a century earlier. Pufendorf theorized that due to the social nature of man, they create societies. This, according to Pufendorf, is the “first contract” to establish a State where people create a government and therefore, consent to be ruled. Pufendorf differs from Locke because his theory consists of a double contract. Pufendorf’s second contract is “submission”. In other words, citizens must conform, even to a rogue government, because natural rights will be sacrificed regardless as to whether or not the government is legitimate. Since citizens provide the government with consent, Pufendorf rules out that governments can be coercive. Pufendorf’s theory of social contract can be summarized in one word: Peaceful. There is no contract to overthrow a government since peace must be maintained at all costs. One could see how this fits the Loyalists view to defend England against the Colonies. It also fit the early movement of American Patriots because their motto was to protest English rule, but to do so peacefully and to follow the law. As Americans pushed for freedom via revolution, American Patriots adapted John Locke’s views. The fight over the Constitution between federalist and anti-federalist also became a battle over Locke and Pufendorf respectively. Federalist and popular sovereignty won with the Ninth Amendment while the anti-federalist won major concessions with the other Bill of Right amendments securing a second contract between citizens and government.

Social contract theory was utilized extensively by both the North and South leading up to the Civil War. Northern abolitionists adhered to John Locke’s theories of popular sovereignty, social contract, and natural rights (all men are created equal). Northerners also adhered to John Locke’s revolutionary principles threatening to secede from the South on many occasions. Legal scholars such as John Marshall, Joseph Story, and Daniel Webster would maintain that it was the “people’s constitution”. Dorr’s Rebellion (1841), in Rhode Island, was a perfect example of people using social contract theory. Citizens rebelled because they wanted to update the State constitution to be more representative of the people.

On the other hand, the situation in the South was complex when it came to social contract theory. The South would use John Locke’s revolutionary principles to argue their right to secede from the Union. When it was convenient, Southerners would use social compact theories and principles put forth by Pufendorf to defend slavery. Since, according to Pufendorf, there must be submission of the people to maintain order even in the face of a rogue government, it is easy to see how individuals or citizens could become slaves of the State. In this sense, Pufendorf would argue that rights became duties to maintain the peace, even if the duty was to support slavery. Pufendorf would rationalize slavery by suggesting that masters owned only the slaves labor, not the entire man. And when it was convenient, the South would use social contract theories put forth by Hugo Grotius to defend States rights and federalism. During the expansion West, Grotius’s social contract and federalism reinforced each other. The South maintained the Union was a mere alliance of States, thus social contract theory only applied to the States. Did “We the People” of the Constitution suggest we the people of the Union (North), or we the people of the States (South)? This text believes that social contract theory applied to both the Union and States. Finally, the South rejected all social contracts when faced with more consistent and logical arguments by Northerners. For this reason, many Southerners embraced Edmund Burke since he did not believe in natural law fundamental rights or social contract theory. Since the Civil War, only one famous American truly embraced Burke, and that was Woodrow Wilson. Wilson would use Burke’s dismissal of natural law to defend his racism similarly to how the South would justify slavery. After all, with no social contract to ensure equality, then it is acceptable to discriminate against certain groups of people. Wilson would eventually drop his support of Burke as he moved to progressivism. However, Wilson’s progressivism was perverted because he would protect natural law fundamental rights of white males while neglecting the rights of everyone else.