The Death of Social Contract Governance


My epiphanic moment of the past ten years is how much of our governance relies on social contracts and the danger of its extinction. Our Founding Fathers wrote the Constitution and Bill of Rights to govern reasonable people wanting to have a reasonable government. The Founding Fathers were not a group of perfect men, but men who were willing to follow the “spirit of intent.” We have three coequal branches of government: The Executive, Judicial and Legislative. Our very design depends on those entities working together to form our “More Perfect Union”. The originators of our system did not spend much thought on enforcement or punitive rules other than impeachment.

When I look back over history, I realize just how many honorable people have served in our Nation's government. Even the ones found to be guilty of “High Crimes and Misdemeanors” were honorable in the end, because they submitted to the process. That's the “social contract”one must “submit to the process”. If a member of our government isn't willing to follow the rules, there isn't much that can be done about it short of impeachment. In our current split Congress, even impeachment isn't a possibility. That's why the Democratic oversight appears powerless on so many levels.

“No.” The refusal to submit to the process. The refusal to follow the rules, laws, and regulations of our government. Our ability to maintain our checks and balances stopped cold with a simple “no”. Of course it isn't all the simple no; in some cases, it's litigation like Trump’s suing to prevent Deutsche Bank from turning over documents to the House Finance and Intelligence Committees. The IRS refusing to comply with a House Finance request to turn over Trump's Federal Tax returns and Trump et al filing suit to prevent the release of the documents.

However, the simple “no” has become the Republican's most potent tool. It’s been used by Senator Mitch McConnell to bring our entire government to a screeching halt. McConnell used it to prevent Merrick Garland from being confirmed as a Justice to the Supreme Court. He stated that it was “his proudest moment” when he prevented President Obama from acting on his Constitutional rights to appoint a Justice. All by just saying “no.” 

In order to bring a bill to the floor, the Senate must first agree to bring it up, typically by agreeing to a unanimous consent request or by voting to adopt a motion to proceed to the bill.

Senator McConnell uses the simple “no” to prevent any discussion, debate, or vote on our Nation's business.

Attorney General William Barr used the simple “no” very effectively. Barr refused to release the summaries provided by Mueller and team. The summaries were written by Mueller and his team for public release and consumption. Instead, Barr chose to release his own “summary” clearing the President of collusion and obstruction three weeks before the actual report was released.

Now Barr has refused to appear before the House Judiciary Committee due to the committee desiring to use staff attorneys to question him and committee members. On the one hand, if you're a member of the Judiciary Committee, you should be able to effectively question a respondent; on the other hand, I've not seen much evidence that members will put aside their egos to do this. Having said that, the committee should be allowed to decide how it wants to run its hearings. Lest we forget, the Republican-led Judiciary Committee set a precedent during the Kavanaugh hearings by bringing an outside prosecutor to do the questioning.

One thing is clear, this administration and the subsequent Republican-ruled Senate aren't interested in submitting to processes. Many of our elected and appointed leaders are in the process of eroding our institutions. In realizing just how fragile our system of checks and balances is, do we now seek to legislate what was once an agreement in the process? Are we to far gone to ever return to regular order?