Close to Home: Coronavirus and the social contract

The coronavirus pandemic continues to alter all of our lives. The U.S. has more than 4.5 million infected and 153,000 deaths. While the pandemic appeared to be slowing in response to the massive shutdown of the economy and unprecedented social isolation, reopening resulted in a surge in cases.

Citizens have been asked to make enormous lifestyle adjustments to flatten the curve. The battle is in effect a war against time while the world attempts to develop a vaccine or a cure. The virus shows no sign of disappearing on its own.

While the government has spent trillions to ease economic pain, the emotional challenge of complying with the social changes has proven daunting. Some have argued that government enforced social distancing and wearing masks violates our rights as citizens.

While Henry David Thoreau, in his pamphlet “Civil Disobedience,” opened with “that government is best which governs least,” he never suggested that the government is best that governs not at all. The very title of this piece underscored his understanding. Thoreau recognized that governments have the power to govern under “the social contract.”

English philosopher Thomas Hobbes opined that life in the state of nature was “nasty, brutish and short,” in effect a dog-eat-dog paradigm. But humans, as free, equal and rational people, came together to leave the state of nature with the social contract, wherein the first responsibility of the commonwealth is the protection of the people.

John Locke and J.J. Rousseau expanded on the nature of this social contract, but stayed with the primary purpose. Hobbes and Locke both discussed the social contract in their most important works to justify revolution against their leaders for defying the contract by creating a tyranny instead of protecting the people.

The Constitution of 1787 is the U.S. social contract: “We the people ... do ordain and establish the Constitution …” is the cornerstone.

The U.S. social contract explicitly enumerated powers of the state to protect us from harm. At the same time, it reserved rights to the people to hold these policing powers in check. The balance must be struck between the policing power and overreach.

Forcing residents to wear masks has triggered three responses among those who would resist.

First, they may obey the law, while seeking to change their elected leaders in the future.

Second, they may, as Thoreau did, refuse to comply with the law, fully expecting to be arrested and to make their case that the law is unjust.

Third, they try to evade responsibility for their refusal to obey.

Throughout our history, people have used civil disobedience, expecting, arrest to challenge unjust laws. But consider the realities of the pandemic versus the civil disobedience of those who fought Jim Crow. No one was sickened or died by sitting at a segregated lunch counter. But the willful failure to stay socially distant, wear a mask and abide by health regulations based on science has led to a massive spike in coronavirus infections and commensurate deaths and long-term consequences for the survivors, not to mention staggering fiscal and social costs.

We must all ask ourselves, “Do we want to tolerate civil disobedience or, for those who try to evade responsibility all together, revolutionary acts” — the third response — “and accept the societal consequences? Do we want to indulge in a macabre form of Social Darwinism and let the oldest, the weakest and the most vulnerable due to societal inequalities simply perish, while awaiting ‘herd immunity’ and a vaccine?”

In the case U.S. v. Bygrave, the conviction for aggravated assault of an HIV-positive Naval officer who transmitted the virus to a knowing and willing sex partner was upheld. How then do we deal with someone who willfully and maliciously transmits COVID-19 to an unwilling victim, whether a police officer, a medical practitioner or a grocery clerk?

When the science on the spread was unclear, many places didn’t promote the wearing of masks. This was “government that was best, which governed least.” When the science became clear, as it is now, requiring masks and social distancing, it is still the government governing best, that governs least.

The obligation of the social contract is to protect us. We all live in “the social contract.” We can alter it, but as Locke wrote, it “can never revert to the individuals again, as long as society lasts.”

So mask up. Implicitly or explicitly, you agreed to it.

Elliot Lee Daum, a retired Sonoma County Superior Court judge, lives in Santa Rosa. Andy Merrifield, an emeritus professor of political science at Sonoma State University, lives in Santa Rosa

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