Debunking Charlie Kirk on the social contract
In January 2020, Turning Point USA posted a 3:43 minute video clip of Charlie Kirk, its founder and president, debating Kyle Kulinski, a “social democrat” at Politicon in 2019. That clip was headlined “‘Social Contract’ Argument Destroyed.” [The full debate can be seen here; the section I will be talking about roughly begins at 18–19 minutes in and last just two-three minutes.]
In the clip Kirk sets out to argue against the theory that the US Constitution is a “social contract.” Readers should recognize the phrase from our civics education as being one of the bases for the Constitution as it was being written in the late 1700s.
The “social contract” is an agreement between the citizens and those who govern the citizens, summed up in the phrase “consent of the governed.” Or as The Center for Leadership and Ethics at the University of Texas says, “Social contracts can be explicit, such as laws, or implicit, such as raising one’s hand in class to speak. The U.S. Constitution is often cited as an explicit example of part of America’s social contract. It sets out what the government can and cannot do. People who choose to live in America agree to be governed by the moral and political obligations outlined in the Constitution’s social contract.”
The “consent of the governed” is found in the Declaration of Independence. That document reads: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”
Yet Kirk says during the debate that “the Constitution actually rejected social contract theory” (19:23).
I think it is important to understand why Kirk makes this claim, how it influences his ideas, and why it is wrong.
Social Contract Theory
Jean-Jacques Rousseau in his 1762 book titled The Social Contract is credited with a revitalization of the theory that has some roots in Greek and Roman philosophies. This theory was generally accepted, though with important caveats, by the philosophers often cited as influencing the writers of the Constitution: Thomas Hobbes and John Locke.
Hobbes was known to argue that humans would cede some liberty for security. Or according to the Internet Encyclopedia of Philosophy: “According to Hobbes, the justification for political obligation is this: given that men are naturally self-interested, yet they are rational, they will choose to submit to the authority of a Sovereign in order to be able to live in a civil society, which is conducive to their own interests.”
That “sovereign” may be a king to Hobbes, but his thinking on the contract helped the fathers of American democracy. You can see why: “men can be expected to construct a Social Contract that will afford them a life other than that available to them in the State of Nature. This contract is constituted by two distinguishable contracts. First, they must agree to establish society by collectively and reciprocally renouncing the rights they had against one another in the State of Nature. Second, they must imbue some one person or assembly of persons with the authority and power to enforce the initial contract. In other words, to ensure their escape from the State of Nature, they must both agree to live together under common laws, and create an enforcement mechanism for the social contract and the laws that constitute it.” [my emphasis]
Locke understood the “state of nature” in an opposite fashion than Hobbes but saw also people agreeing to give up a right to war for some civil community: “Political society comes into being when individual men, representing their families, come together in the State of Nature and agree to each give up the executive power to punish those who transgress the Law of Nature, and hand over that power to the public power of a government. Having done this, they then become subject to the will of the majority. In other words, by making a compact to leave the State of Nature and form society, they make ‘one body politic under one government’ (par. 97) and submit themselves to the will of that body. One joins such a body, either from its beginnings, or after it has already been established by others, only by explicit consent.”
Rousseau saw a destructive origin to the social contract like Hobbes but like Locke argued there had to be a way to live with freedom and civil restraint: “Since a return to the State of Nature is neither feasible nor desirable, the purpose of politics is to restore freedom to us, thereby reconciling who we truly and essentially are with how we live together. So, this is the fundamental philosophical problem that The Social Contract seeks to address: how can we be free and live together? Or, put another way, how can we live together without succumbing to the force and coercion of others? We can do so, Rousseau maintains, by submitting our individual, particular wills to the collective or general will, created through agreement with other free and equal persons.”
Kirk’s Claims
After saying the Constitution rejects “social contract theory,” Kirk states that “[the Constitution] said our rights come from what? From God, not from government, that government should not infringe upon your rights. The Constitution rejected coercive government action the United States. The Constitution rejected the idea that… actually the entire United States Constitution was a warning sign against having government come too much… infringing of our rights….”
Kirk insists that 1) God, not government grants rights, 2) the Constitution rejected “coercive government”, and 3) that overall the Constitution rejected social contract theory.
This second idea is based in libertarian political ideals. In 2016 The Washington Post published an op-ed by Ilya Somin, a law professor at George Mason University and an adjunct scholar at the Cato Institute. The former is a noted home to libertarian scholars funded by the libertarian stalwarts, the Koch brothers. The latter is a libertarian think-tank.
Somin argued in his piece titled “Why real-world governments don’t have the consent of the governed — and why it matters” that “the lack of consent does undercut arguments that we have a duty to obey the government because we have somehow agreed to it or because it represents the ‘will of the people.’”
He adds: “Moreover, if government power must be legitimized by its consequences rather than by its supposedly consensual origins, that strengthens the case for imposing tight limits on the state in areas where the consequences are negative, or even ambiguous. Other things equal, the exercise of coercive power without consent is a bad thing, especially if resistance is often subject to severe punishments such as imprisonment, heavy fines, or even death.”
In a similar fashion, the Mises Institute — a libertarian think tank in Alabama — has also critiqued the social contract theory: here and here.
Kirk echoes one of the lines from the Mises Institute in the debate. When Kulinski mentions the social contract for the first time, Kirk asks “when I did sign that, Kyle?” The second link there from Mises argues: “I have often had occasion to protest that I haven’t even seen the contract, much less been asked to consent to it. A valid contract requires voluntary offer, acceptance, and consideration. I’ve never received an offer from my rulers, so I certainly have not accepted one…” [I have written previously about the Mises Institute and Kirk. See here and here.]
While libertarianism praises the Declaration of Independence for its basis in the “consent of the governed,” [see here, here, and here], it as an ideology suggests the “social contract” is either flawed or imaginary.
In blunt terms, a writer at The Libertarian Institute argues: “That’s the truth about the social contract. It’s just some lousy excuse. What validates it is our willingness to grant it legitimacy. If we chose not to, it would collapse. And that’s why the state uses it.”
Also listen to a writer at libertarianism.org: “Libertarians throughout history have figured that we ought to be careful to avoid coercing people who have never actually sat in the original position or agreed to specific terms, however beguiling a clever philosopher’s thought experiment may be. It is, after all, difficult enough just to decide whether a given act is coercive.”
A Rebuttal of Kirk
While there has been modern critiques of social contract theory, to say that the Constitution or its writers rejected that theory is not based in the evidence. And Kirk provided none.
Libertarians have suggested that the Constitution is a mythical social contract because it is based on the myth that “governmental powers could be restrained by words” and specifically our founding document confirms “its unrestrained power given to the state,” to quote a Mises Institute article.
While libertarians might reject the theory and therefore not see the Constitution as a social contract, Kirk is taking that logic a step further to argue the document itself or its authors rejected that theory. There is quite a difference between the two.
Second, Kirk does not define the coercive action he sees in government. But it seems that such action may include infringing upon rights by forcefully — without consent — eliminating those rights. And if those rights are granted by God, they can’t be erased by government, according to Kirk.
This idea of freedom as the absence of coercion comes from Friedrich Hayek, the economics scholar. Hayek is a favorite of Kirk. Kirk wrote in his book Time for A Turning Point that Hayek was one of four people whose philosophies had the most impact on him (ix).
Yet Kirk conflates, like Hayek, economic and political freedom and their opposite, economic and political coercion. Both therefore see the specter of socialism as a kind of government coercion even though it would come in the form of a government of the consented, a representative, democratic process, at least in the US.
Kirk cited Hayek in a 2019 Newsweek editorial: “The idea that political freedom — in this case freedom from political conflict — cannot exist without economic freedom, dates back a century to the arguments of great economists like Friedrich von Hayek and Ludwig von Mises. They understood that liberty, and with it peace, is generated from free exchange and access to free markets.” [Kirk also alluded to Hayek’s famous book The Road to Serfdom in a Fox News post.]
On coercion, the Mises Institute notes Hayek included both physical and non-physical elements, or in other words, the government’s judicial or law enforcement elements and its economic elements. This combination is “deeply flawed” because it includes “peaceful and non-aggressive actions as well,” according to Mises.
In so conflating, Kirk then implicitly suggests any government regulation is an infringement of rights — political, social, economic — because those rights come from God, not government.
Yet Kirk does not name the rights that are divinely inspired. He certainly has made the case that the right to bear arms — the Second Amendment — is such a right from God.
But is the right not to quarter militia in your house a right divined by God? Or is it based on the rights inherit in the idea of private property? Same for a speedy trial? Or trial by jury?
And if these rights are divinely made, where is there note of such rights? How do we know we have such rights and where might we go — how might we protest — when those rights are infringed? Kirk does not say, but notes the Constitution is not a contract that could answer those questions.
It could be that Kirk denies the “social” part of the contract. That seems the case as his example after his claim is about economic individual power, aka the billionaire and how they make their money. The context for such a claim is the debate being had in this video about how might the government regulate or change economic inequity.
Kirk might see the Constitution as a contract between the individual and the government, not merely the “social.” But as some have pointed out the “we” in the Constitution (and Declaration) is not a collection of individuals but people becoming a whole in order to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare….” Common and general here is key.
Kirk’s claim that the contract is not apparent or has he as an individual signed up suggests he does not like what Locke thought, as described above: under a social contract, individuals submit to the will of the majority.
Why does Kirk imply that he does not want to submit to that group? It seems that group might restrain his ability to make millions, or inhibit him to live as he wants. Or take from him to spend on projects and policies he does not agree with. Kirk famously says taxes are theft.
It is also an appeal to fear to suggest there is no social contract. Because that “social” can turn on you. As I wrote here, “as Kirk makes clear in his tweet from October 2018, if 51% (actually it’s 50% plus 1 as definition of majority) can take away “100%” of your rights, then democracy is bad.”
But we are not talking about a coercive tyrant, but a democratically elected government doing things Kirk does not want. And he won’t submit himself to that contract. [Not withstanding the horrible events in US history of the government doing such…. Breaking the contract is a different case than there is no contract.]
Kirk is interested, as he notes, in making sure his God-given rights are sustained. And he denies any contract that might he might have to submit to. Yet while Kirk denies a political contract, he submits to a religious one. He can’t deny the historic Christian tenets and also call himself a Christian.
Those who like Kirk say they didn’t sign any social contract. But their critics argue there are implied consents in voting and participating in the political process in other ways.
A leader at the Freedom from Religion Foundation noted in a Religious News Service post that “the founders enshrined a social contract in our Constitution. We agree on the rights we keep and the rights we give away to the state, and, if one breaks the social contract, we agree on which rights of theirs we can take away. John Jay, the first chief justice of the Supreme Court, wrote, ‘Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers.’”
The question is what rights is Kirk not willing to cede. And how he has already, always, but doesn’t want to admit it.
Kirk might rightly point to the “unalienable” rights in the Declaration. Life, liberty, and happiness.
But on those rights, the Constitution and the Declaration both use the same phrase in speaking of the government’s role toward those rights: “secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America” and “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”
The Constitution suggests that it is not merely the document but the ordaining and establishing of the document by the collective that “secures” the rights named. The social action establishes their appearance. [The Declaration also nods to this social action: “we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”]
The Constitution is therefore the “enforcement mechanism” of the social contract. It lists the rights, roles, and responsibilities of the government. And its limitations. And this document was approved by the governed.
Yet this is not a contract to Kirk. Because he didn’t sign it.
Beyond the arguments for how modern people accept the contract imagined in the 1700s, Kirk suggests that the Constitution is not a document that creates rights. It can only enforce those rights.
Yet, we all should remember Kirk adores the Constitution, says it is a timeless document. Timeless in that it will stand the test of the future. But also timeless because it goes beyond history, into the past, past the past, to speak abstractly. It reaches back into a time before time to name rights ordained by God.
Yet this is not the Constitution as written. It is a reading of that document through the lens that America was founded as a Christian nation (or as others like Kirk say, with a “Judeo-Christian heritage.”)
The Constitution was and remains a document born of a social action — debate and consent. It is not a divinely inspired document in the same manner that Christians call the Bible that. Kirk conflates the two.
