A tilted black and white photo of the statue Major General Comte Jean de Rochambeau in Lafayette Square in Washington, D.C., across the street from the White House. Rochambeau stands above Lady Liberty, pointing ahead.
Comte de Rochambeau

The Social Contract

As with any meaningful contract, violating it should carry consequences.

  • Eric McCarthy
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  • scroll-solid icon 5 min read

Maybe you’ve heard of this thing called the social contract. It’s a concept in philosophy popularized during the Enlightenment that helps explain why anyone should submit themselves to the authority of a government. The idea is simple: we agree that the government gets to do things like imprison some of us, so long as the government meets a standard of evidence and the law is fair.

In the United States we call a good chunk of things covered under our social contract due process. If the government wishes to do something adverse to someone, they are due a process that ensures their rights are respected and that the actions of the government are carried out lawfully. Without due process, there is nothing to constrain the government from harming someone for any arbitrary reason.

There is a sense among many people in this country that they are not beneficiaries of this arrangement — that only criminals benefit from due process. This could not be further from the truth. Due process is what prevents a local politician from seizing your property simply because they want to. It’s what keeps you out of jail for accidentally insulting the mayor’s buddy. It’s what saves you from undue prosecution if you harm someone while acting in self-defense.

In this country we have been gifted a high standard of due process throughout all levels of government. From the town police, to the county sheriff, to the state police, to the federal Department of Justice. Many seem to believe we have too-high a standard; that it’s high time that we abandon this principle — at least for some people.

Due process does not mean everyone is treated exactly the same without regard for efficiency. For example, our immigration courts are operated by the executive branch rather than the judiciary. Noncitizens in an immigration court are not entitled to a jury trial. Nevertheless, this process is established by laws passed by Congress and its decisions are ultimately reviewable by the judicial branch. It does not mean the executive gets to do whatever it wants without regards to what the law says or a court orders.

What you probably already figured this post was about

This post is mostly about Abrego Garcia. While I do find the evidence he is an MS-13 gang member thin and speculative, that is ultimately immaterial. He could be incapable of hurting a fly or he could be a bona fide terrorist. The court order preventing his deportation to El Salvador should not have been defied. The court order the Supreme Court upheld with no dissents should not have been defied. These acts of defiance violate our long established social contract.

I want to convince everyone of this, but sadly I doubt it is possible to convince those who believe the government is justified in their defiance. I find it unlikely they can be made to understand that someday this will be used against them. The prose of Judge Wilkinson’s order in this case — even though it is as compelling an appeal to American values as any decision of a court can be — seems unlikely to persuade many Americans who have never held these values in high regard.

When discussing rights, we often talk about how things like due process protects your rights when you are accused of a crime. Heck, it is how I wrote the first draft of this post. Unfortunately, I don’t believe such people are capable of thinking of themselves as the you in this scenario. It is unimaginable to them that the leopards will eat their face. I’m not sure why so many are like this but I suspect it’s fundamental to how their brains work and the only thing that can sometimes change that wiring is when the leopard finally eats their face.

When talking to folks about this, it may be more effective to make the argument about how they been benefiting from due process all along. It’s what stands between us and things like corrupt local party officials. We must continue to exercise this bedrock principle of our social contract lest we lose it completely and begin a descent to into a culture tolerant of corruption.

The consequences

When it became clear that the Trump administration had decided to defy court orders, I posted this:

An executive that defies court orders is undeserving of the safety that the social contract would otherwise afford them.

“Safety” here is a spectrum, but it includes feeling secure in one’s office. Repeated defiance of the courts must be met with serious threats of removal through lawful means, such as impeachment. While that is unlikely to succeed immediately given the current make-up of Congress and President Trump’s continued popularity among the Republican base — it is not impossible if these factors shift. To that end, there is a path to bring an early end to Trump’s un-American pursuit of authoritarianism: make the 2028 midterm elections a referendum on impeaching Trump and Vice President Vance, likewise making the newly-minted Speaker Hakeem Jeffries president for the remainder of the term.

A contract with someone acting in bad faith only works if there are consequences for violating it.