I cannot say with confidence that the world is worse off because of the social contract theorists of early modernity. Their cache and the spread of their rhetoric during the long first wave of democratization lent the project legitimacy at a moment when every bit counted. They provided, if not a Noble Lie, then at least a Noble Error, which helped a nascent form of government take root. That is as high an honor as I will offer to this branch of political theory which refuses to retire peacefully to its grave, where it belongs.
Hobbes and Locke are most frequently taken to task for the construct of the “state of nature,” a state which never existed. What I most resent is how it has projected the mirage of consent into our politics. People do not consent to governments the way they consent to a contract with an employer or a client. You are born into a government’s jurisdiction; you are not born into an employer or a work order. You can join numerous organizations or work for numerous clients without moving; you will remain, whether you want to or not, under the jurisdiction of the same government so long as you stay put. Even the ratification of a constitution is not consent for those who vote against it. If I do not wish to work for a particular employer but more people vote for me to do so than vote against it, would anyone consider that any sort of consent? This logic does not change even if it is a very large supermajority—indeed, even if I am the only one who votes against my taking the job.
Representative government and majoritarianism are marvels, their proliferation is a tremendous achievement of the modern world. But it is not driven by consent. If anything, it is driven by assent; assent to the legitimacy of electoral and legislative politics, even when the people and parties you voted for fail to take office or control major branches of government.
Its strength is in putting people at the center of political power who have a stake in maintaining the trust of a broad cross-section of society. The original European parliaments were a means of representing the major interests of those societies, in order to pass laws and govern in such a way as not to alienate them or tempt them to rebellion. The interests and the groups represented today are broader, and making them effectively broader is a never ending project. But the seed of our current system nevertheless was planted in those old bodies where nobles, clergy, and cities were represented.
The Constitution is not a venerable document because we consented to it. Even if all of the hundreds of thousands of enfranchised men had ratified it, rather than merely the larger part of their numbers, what would that have to do with the consent of the hundreds of millions of Americans who live today? We will not and should not follow Jefferson’s suggestion to tear it all down once a generation, and even if we did, the ratification procedure we would follow each time would still not properly be consent, at least for those who voted with the minority.
The Constitution is venerable because it successfully established a framework for the lawful conduct of representative government. That’s hard enough a task, and harder still when they did it. One way we might better honor that accomplishment is to discard useless lenses by which it is misunderstood—social contract theory being at the top of the list.