A review of The Social Contract in America: From the Revolution to the Present Age, by Mark Hulliung

Mark Hulliung is a chaired professor of history at Brandeis University, but his book is not really a work of history. Still less is it an essay in philosophy. It is not even wrong in interesting ways. Professor Hulliung has some opinions or at least some attitudes about politics. He has also had the leisure to leaf through some old books. He seems to think it is a contribution to scholarship to record whether, given his attitudes, various writers appeal to his taste. This is the sort of book that might have resulted had a publisher recruited a food critic to review the great books on politics and prescribe the proper wine to go with each. (Hegel goes best with heavy port.) It is the sort of book that confirms the popular impression that underneath their affectations and pretensions, university professors are at heart simply…silly.

Hulliung is obsessed with Samuel Pufendorf, a German commentator on natural law and the law of nations. Pufendorf served in various diplomatic posts in central Europe but he made his mark as a university professor. His treatises—still published in Latin—received a good deal of attention in the late 17th century. He was mentioned now and then by the American Founders, when they compiled citations from great works on the law of nations. It says something that no one thought to arrange for another English translation of Pufendorf's main work, De jure naturae et gentium (1672) for 200 years—between the initial version by Basil Kennett in the early 1700s, and the early-20th century translation underwritten by the Carnegie Institute, which also sponsored English editions of such minor figures in the history of international law as Cornelius van Bynkershoek and Balthazar Ayala.

In Hulliung's book, Pufendorf plays a central role. Indeed he figures as the Professor Moriarty of natural law, a figure of vast and sinister importance, operating through a network of shadowy disciples, extending from the militarist councils of Friedrich die Grosse to the gracious plantation houses of Jacksonian America. We first encounter him intriguing with Loyalist opponents of the American rebels: "Loyalists found Pufendorf's argument to their liking because they could have their [social] contract and yet nullify its radical implications."

In a flashback, we learn that Pufendorf had already infiltrated among the defenders of England's Glorious Revolution: "Pufendorf's text was sufficiently ambiguous for many Whig pamphleteers to exploit it in 1688, no matter that it had long served German princes as a justification of royal absolutism." But his major works had only been published (in Latin) during the previous decade. Hulliung's misleading "long served" suggests the contrary: that year after year, Pufendorf's seductive formulae beguiled German scholars who were otherwise on the brink of overthrowing local grand dukes and reviving the traditional liberal spirit of the Pomeranian peasantry.

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The Pufendorf spell proved potent in America, more than a century later. In the debate over ratification of the Constitution, "Locke was a favorite of Federalists, Pufendorf of Anti-federalists." Later, in the antebellum South, defenders of slavery clicked their heels to Pufendorf's command: "It was from Grotius and Pufendorf that the Southerners learned their lessons in conflating ‘is' and ‘ought.' …Southerners followed the lead of Pufendorf, who had issued a handbook emphasizing duties and relegating rights to a secondary status." If they hadn't studied Pufendorf, those Southern planters might have given up their plantations as mere ontological contingencies! By the time Hulliung is done, Pufendorf has been fingered for one or another historical calamity in 34 places—in a book on the social contract that mentions Hobbes on only four pages, and Rousseau on seven.

In Hulliung's drama, for over three centuries the heirs of Locke battled for freedom against the goose-stepping followers of the evil Pufendorf. In the Lockean conception of the social contract, Hulliung says, the people empower themselves, recognizing a common government only so long as it pleases them, while in Pufendorf's scheme, the people commit themselves to obey the government in "a contract of submission." One problem with this account is that, back when Pufendorf was a name worth dropping, hardly anyone who did so invoked him as the polar opposite to Locke. This is certainly not how Pufendorf appears in those passages where he is cited by Alexander Hamilton, James Madison, or John Marshall (almost always in company with the Lockean Emerich de Vattel). In fact, Locke himself, in Some Thoughts Concerning Education, recommended Pufendorf as a useful text to acquaint students with modern notions of natural law. But Hulliung's interpretation, which centers political thought on a supposed cosmic battle between Locke and Pufendorf, tends to push almost everything else to the margins. Even the actual arguments from Locke's Two Treatises are submerged in feel-good rhetoric about freedom and the power of the people.

Yet the implications of social contract theory are not at all obvious or uncontroversial even in Locke's version, let alone in later applications. According to Hulliung "the preamble of the Declaration of Independence…enshrined a full-blown version of Locke's theory." "Until quite recently," he explains, "groups suffering the ill effects of exclusion…appealed to the Declaration when staking their claims to full citizenship for all Americans. Slaves and former slaves, abolitionists, workers, women, immigrants, land reformers, single-taxers, Populists, and Debsian socialists—all have appealed to their fellow citizens in the name of the Declaration of Independence."

Were they right to do so? Start with the question of who is included in the contract. If government derives from an agreement among the governed, who can join? It is one thing to say that the right to liberty is inalienable, but something else to say that incorporation into a particular political community is automatic. Does government rest on consent or doesn't it? If those already in the community want to exclude others, as, for example, by tightening restrictions on immigration, do they have a right to do so? Hulliung, ignoring these questions, treats the whole issue with mere sloganeering.

He gives the same treatment to the question of self-exclusion. "Locke broke with Pufendorf by transforming emigration into a natural right," he writes. He demonstrates this claim by quoting Locke's statement that "every man's children being by Nature as free as himself…may choose what society they will join themselves to." But Hulliung's version of the quotation (with the ellipses) drops Locke's essential qualification: "whilst they are in that freedom"—meaning in the state of nature. Later Locke is emphatic about what happens when one escapes the state of nature and joins an established society: "he that has once…given his consent to be of any commonwealth, is perpetually and indispensably obliged to be, and remain unalterably subject to it, and can never be again in the liberty of the state of nature; unless by any calamity, the government he was under comes to be dissolved…." The American Founders took this seriously enough to have an extended debate in the 1790s on whether American citizens could simply renounce citizenship at will. Even today, travel abroad does not free a citizen of his legal obligations to the United States.

If government can transfer liberty from one group of citizens to another, along with property, does that mean followers of Eugene Debs and various prairie Populists were right to invoke the Declaration of Independence on behalf of forced redistribution of wealth? Can a government do this without limits? And if there is no limit, why is there a right to revolution? Hulliung is nearly silent on these questions, providing only epigrams like this one: "In the land of the social contract, all that is most important is subject to human choice." If this is true, what happens to "inalienable rights" or entitlements under the "Laws of Nature and of Nature's God"? Are they all subject to "human choice," or are they not "important"?

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One might never guess from Hulliung's rambling discourse that in the actual text of the Declaration, after the introductory invocation of the "course of human events" (which might well be summarized as "whenever"), the first substantive word is not "free" or "equal," but "necessary." There could be no guarantees in nature if there were not predictable patterns—things that follow in "necessary" ways.

Of course, whatever else it means, the social contract implies an initial choice. But "contract" also implies commitment. So how does the social contract relate to a fixed constitution? Hulliung is keen to emphasize what he calls the Lockean view: that the social contract is all about freedom. "No human law, in Locke's world, is above the people," he writes. So can the people change the constitution at will? Hulliung seems to think so, relying on James Wilson's statement that "the people may change the [state] constitutions whenever and however they please" because "the supreme, absolute, and uncontrollable power remains in the people." What does it mean, then, that the federal Constitution—which Wilson played such a prominent role in framing—can only be amended through a cumbersome process, with the approval of three-quarters of the state legislatures as well as two-thirds of each house of Congress?

The Constitution actually goes further, expressly prohibiting any amendment that would deprive states of their equal representation in the Senate. Accordingly we have two senators from Wyoming and two senators from California, though the latter has some 70 times more inhabitants than the former. Does social contract theory require us to accept the original bargain, or does it require that the people retain a right to discard it? If the latter, how can divided societies ever persuade minorities to trust the majority?

Hulliung laments that we don't talk much about the social contract these days. He attributes this decline to the Supreme Court's extension of the Bill of Rights to the states in the 1960s: "The Declaration had taught Americans to appeal beyond the laws and the Constitution to the natural rights of all persons, to the sovereignty of the people, the consent of the governed, the social contract. The new Bill of Rights made such appeals irrelevant…." He does not notice that the text of the Ninth and Tenth Amendments is utterly obscure without recourse to social contract theory. He does not notice that the whole question of whether and when to apply the Bill of Rights is tied up with disputes about how federal authority is constituted in relation to the states, and which "people" initially consented to state and federal authorities. Though he does acknowledge that "[i]n the United States, as in no other country, social contract and federalism became inextricably entwined," it does not seem to occur to him that anything interesting follows from this fact.

Hulliung rejects "the revived natural law philosophy of the 1950s" because it was "cut off from the rest of the social contract tradition" and guilty of "ethnocentrism." But the alternative is disappointing to him as well: Franklin Roosevelt's election speeches promised "binding together rights and social contract…like the fully realized social contract theory of yesteryear," but his New Deal "distinguished between deserving and undeserving poor, which was a far cry from welfare as a natural right guaranteed by the social contract."

This confusing set of associations is in no way explained anywhere in this book. But never mind. By the time I got to that point, I just had one question: how do we know Barack Obama hasn't been secretly reading Pufendorf?