A Broken Social Contract

When the new coronavirus arrived in the United States in January 2020, it hit an economy, society, and constitutional democracy fundamentally unprepared. As the scale of the challenge became clear, the country simply could not deliver what was needed to confront it. There was a solution, one identified by scholars and policy experts as early as the middle of March and publicly disseminated by the middle of April. That solution was a large-scale program of rapid testing of patients, tracing and testing their contacts, and tracing and testing those individuals’ contacts in turn. Such testing also needed reinforcement from a culture of adherence to universal precautions such as mask-wearing, hand and bathroom hygiene, and robust practices of infection control. But the country did not have the relevant infrastructure ready to go and was not able to deliver this mobilization.

The near-term challenge of January 2020 was identical to our long-term challenge: how to achieve pandemic resilience—the ability of our social and political institutions to process a major exogenous shock yet keep all essential functions operating, while simultaneously protecting lives, livelihoods, and liberties. The urgency of the crisis meant that we needed to deliver the durable infrastructure of resilience in the form of emergency response. But the near-term nature of the crisis situation by no means required that the response to it should consist only of transient initiatives. Emergencies have always provided opportunities for durable innovation.

Look back to antiquity. The Romans’ Appian Way, their first major road, was built in 312 BCE as a supply line during the Second Samnite War. A crisis response yielded durable infrastructure. Of course, the same kind of thing happened with penicillin and nuclear power during World War II. For the purposes of our current situation, the effort to find a vaccine to protect against COVID-19 is another good example of an emergency yielding a permanent advance. We could have and should have done the same with the infrastructure of public health.

Yet instead of laying down a new foundation for joint enterprises, the pandemic revealed that our social contract is fundamentally broken. What exactly is a social contract? A social contract is the set of rights and mutual responsibilities that we have among ourselves as citizens in a constitutional democracy. A social contract is both what is asked of us as participants in a constitutional democracy and all that is made possible for us by virtue of our participation in that constitutional democracy. What is asked of us and what we receive establish relations of reciprocity within the citizenry.

Our society includes people who are being asked to follow the law and to pay taxes, but who are not in return receiving the opportunity and security promised by our arrangement of mutual rights and responsibilities. The elderly and essential workers, for instance, were left exposed to the pandemic. We have seen disparate impacts on communities of color because underlying foundations of health have not been adequately established for low-income workers. When crisis hit, the society that promised to protect all did not, in fact, protect many of its members. We would have more civic strength by virtue of having a healthy social contract, supporting both good governance and solidarity. The goal of this essay is to share a framework for delivering a transformed peace, a post-pandemicstate in which, as a society, we would be less vulnerable to injury because we would be stronger as a society.

Constitutional Democracy in Crisis

What goals of decision-making should guide a constitutional democracy in crisis? When the COVID-19 crisis hit, we needed a tool for fighting the virus that would not also shut down the economy, and we needed to mobilize the economy to deliver that tool. That tool was not hard to discover. Asian nations were already using it: once again, a massive ramp-up of diagnostic testing for the disease coupled with massively scaled-up contact tracing.

In those early days of crisis, with a solution visibly plain as day in other countries, many blamed the United States’s flailing efforts on our federal system and strong culture of individual rights. They argued that a decentralized system of government that devolves significant power to 50 states is no match for a fast-acting virus. Those who espoused this view often pointed to China’s prompt response to the outbreak as a model for decision-making in a crisis, arguing that only a centralized authoritarian state can act quickly and ruthlessly enough to squelch the virus, even if trampling over civil liberties to do so. But this overlooks the fact that both Australia and Germany, with federal systems, succeeded in the earliest stages of crisis response. Neither democracy nor federalism was the problem. Federalism is an asset and could have been of great value to us if we had taken more advantage of its resources. Similarly, Germany and Taiwan have some of the most privacy-protective rights regimes in the world. Vigorous defense of liberties hindered the response in neither country.

Yet it is true that the path to success involved breaking laws—not of physics, but of politics. The work that had to be done in the United States—and in Germany and Australia—was different in kind than the work China needed to do. A successful response to existential threats requires not merely survival, but survival as the kind of society we are, namely a constitutional democracy. Distinctive demands are made on constitutional democracies by a crisis.

Crisis and Political Legitimacy

What were the stakes of this crisis for constitutional democracy in general and for our democracy in particular? All decent regimes face the challenge of responding to existential threats by restoring security and wellbeing for their populace. One of the most ancient distinctions among regime types is simply that between well-ordered and outlaw regimes. The former pursue basic security for their populace. The latter do not. The distinction goes back to Plato and Aristotle.

Plato and Aristotle argued that the first criterion for judging how well a given regime performed was simply whether the rulers were acting in the interest of the ruled or in their own interest. In every good regime—regardless of whether ruled by one, few, or many—rulers rule for the sake of the people being ruled and therefore deliver basic wellbeing to the population. This is the first requirement for political legitimacy of any kind. In the United States, this requirement is articulated in the Declaration of Independence, when that text defines the first principle of our institutions as being that we build them in order to “effect [our] safety and happiness,” that is, our collective safety and happiness. The phrase, which comes at the end of the long second sentence about self-evident truths, is an eighteenth-century rendering of Cicero’s argument that “the health of the people is the supreme law” (salus populi suprema lex esto). Both the phrase “safety and happiness” in the Declaration and the phrase “general welfare” in the preamble to the U.S. Constitution are eighteenth-century renderings of this Roman idea. The Declaration does not treat our individual pursuit of happiness as the point of our political institutions. It argues that people build their political institutions to achieve their shared safety and happiness, one element of which consists of providing a context in which people can autonomously pursue the life courses they choose (“the pursuit of happiness”). From antiquity through the founding of the United States, political theorists have consistently argued that all political legitimacy flows from the ability of political institutions to deliver the health and wellbeing of the people as a collective body. Success at providing material security is a necessary element of legitimacy for any regime type.

The COVID-19 crisis, then, threatened all political regimes on earth with legitimacy failure should it be the case that they could not master the disease and deliver material security to their populations. To make matters worse, in the United States, this threat to legitimacy arrived at a time when our political institutions were already facing a legitimacy crisis. When the pandemic hit, we did not have broad consensus that our institutions were delivering the basic material security that we collectively need. That issue comes to the fore most powerfully and sharply in the opinions of young people. As Yascha Mounk and Roberto Stefan Foa show, whereas for the generation born before World War II, roughly 70 percent consider it essential to live in a democracy, for millennials, only about 30 percent consider it so.[ii] If they are asked whether a democratic system is a good or bad way to run a country, 25 percent of young people will say it is a “bad” or “very bad” way to run a country.

Both climate change and economic inequality are commonly invoked by young voters to explain their disaffection with, and alienation from, our political institutions. Even before the COVID-19 crisis hit, we had lost the allegiance of rising generations to our system of governance. The question, then, of whether this country could respond reasonably and effectively to the COVID-19 crisis and satisfactorily deliver a basic sense of material safety and security went right to the heart of what was already a legitimacy crisis.

Yet the achievement of material security is only the beginning of the story of democratic legitimacy. Constitutional democracies also have their own additional conditions for achieving and maintaining legitimacy. I turn to those now.

The premise underlying democracy is that human flourishing extends beyond basic material security. Such security is necessary but not sufficient. Human beings, in the common account of the value of democracy, are creatures who need to chart their own courses in life. They thrive on autonomy, the opportunity for self-creation and self-governance. That autonomy is made real in our political institutions via the protection of both negative and positive liberties. Negative liberties are those rights of free speech, rights of association, rights of freedom of religion, and so forth, that permit us each to chart our own course toward happiness, based on our own definitions of the good. Positive liberties and rights are those opportunities that we have to participate in our political institutions as decision-makers, as voters, as elected officials, as people who contribute to the deliberations of our public bodies. Through our positive liberties, we have the chance to shape our collective world together. A core insight of democratic theory is that the autonomy that delivers human flourishing also requires a second kind of shared autonomy through political institutions in order for autonomy to have its fullest form. To focus on material security alone leads to only a partial flourishing; a fuller flourishing also requires the protection and exercise of negative and positive liberties. Beyond that, too, full flourishing requires protection of social rights that interact with basic material security to make sure that we have that foundation of economic opportunity and possibility that permits us to make use of our negative and positive liberties.

Over the course of the twentieth century, regimes have been categorized depending on whether they focused only on material security, or also on negative liberties, positive liberties, and social rights.

China, for example, would be a society where the political institutions and authorities are committed to the material wellbeing of large parts of their population (though not to the wellbeing of minorities such as the Uyghurs). The Chinese government is also committed to a certain provision of social rights—health rights, for example—but not to negative liberties or positive rights. Insofar as the leaders are governing in the interest of achieving material security, China falls into the category of well-ordered regimes, but not into the category of constitutional democracies, which must also protect negative and positive rights and liberties.

The twenty-first century has given us a further requirement for legitimacy in constitutional democracies. In addition to protecting negative and positive liberties, a healthy constitutional democracy must also secure social equality and nondiscrimination in order that positive and negative rights and liberties, as well as social rights, are equally well secured for all members of the polity.

Long-standing patterns of discrimination undermine the provision of negative liberties, positive liberties, and social rights, as we have at long last come to understand them. Consequently, achieving the core goals of a constitutional democracy also requires focusing on issues of social equality and nondiscrimination. As health inequities became visible in this coronavirus pandemic, they made abundantly clear how tenuous was the legitimacy of our political institutions.

Distinctive Features of Governance in a Constitutional Democracy

The higher bar constitutional democracies set for their decision-making, including in times of crisis, leads to four distinctive responsibilities of governance. These are: (1) integrative policy-making and judgment; (2) education of the public; (3) attention to a healthy social contract via protection of negative and positive liberties; and (4) attention to a healthy social contract via protection of social rights, social equality, and nondiscrimination.

As we have seen, legitimacy in a constitutional democracy depends on success at securing material wellbeing, protecting negative liberties, protecting positive liberties, protecting social rights, and securing social equality. Decisions have to be integrated across all of these dimensions. This requires partnerships among experts in each area. There is a need for expertise on the specific issues of material security in play. In the case of the pandemic, we needed experts on health and economics to help shape our policy conversation. But they have to be fully integrated with, and collaborating with: experts in law focused on civil liberties; experts working on questions of equity and social policy; experts working on questions of community health and how questions of health equity factor into the overall shape of a policy. In that regard, precisely because constitutional democracies need to work out any decision across a number of dimensions, they need leaders who are like symphony conductors—able to activate the different instruments needed for judgment across many dimensions simultaneously, and to weave those different instruments together into an integrated whole.

Such leaders also need to guide education of the public. The existence of our positive liberties, the fact that we, the people, ultimately are the rulers in this democracy, means that public decisions require our support and our understanding. The commitment of a democracy to positive liberties brings with it a commitment to transparency in communication. During a time of fast-moving crisis, this amounts to a commitment to clear and consistent public education. In order for citizens of a democracy to see and understand the crisis, the integrative process of diagnosing the crisis’s components and of finding solution pathways needs to be shared with the public in ways that make the choices before us visible. We need public officials who can explain the pursuit of alignment along all the dimensions of our aspirations and explain how integration will be achieved.

The distinction between education and propaganda is maintained by a commitment of elected officials to truthfulness. We have a big debate in our country about facts, and often people lament that we do not all seem to be operating with the same set of facts. That is not quite the right diagnosis of our problem. The question of which evidence is salient to a decision will depend on what question you are trying to ask and answer; so part of the process of debate will inevitably involve a contest over which facts are the most important ones. When people try to nail down a single set of agreed-upon facts, as if that will bring an end to problematic debate, they often find the project immensely elusive. Anti-propaganda efforts in the lead-up to World War II faced this same problem.[iii] What matters is not that we stabilize a set of facts as the ones that we will all agree to focus on, but that we stabilize a widespread commitment to truthfulness.

The third important responsibility of democratic governance is attention to a healthy social contract via protection of negative and positive liberties. Our commitment to positive and negative liberties means that, in responding to this crisis, some of the tools in use in other societies are off limits. For instance, both China and South Korea have used intense surveillance tools to track and quarantine people in order to control the disease. Similarly, China has routinely quarantined vast swaths of the population to a much greater extent than we have here in the United States. It has enforced these quarantines with tools that are incompatible with the protection of civil liberties, including location data, facial recognition technology, and QR codes that hang over the entrance to residential complexes used to support tracking of people’s movements.[iv]

Given appropriate reluctance to rely on tools that conflict with civil liberties, officials in constitutional democracies must instead rely on another tool: voluntaristic participation resting on solidarity, a commitment of the citizenry to undertake burdens on one another’s behalf. The fact that democracies have a higher bar for building and sustaining legitimacy means that, when they succeed, they also have resources of solidarity in the population to tap, so that supportive volunteerism can be activated on behalf of the public good. But as political scientists will point out, the resources of solidarity depend on a functioning and healthy social contract.[v] The question of how a democracy meets a crisis when it needs to use stringent measures—and how well it succeeds at that—will closely interact with the health of the social contract: whether or not the basic relations among the citizenry, the existing forms of mutual commitment themselves, can shore up the kind of solidarity it takes to do hard things together in a time of crisis.

The fourth and final feature of legitimate democratic governance is attention to a healthy social contract via protection of social rights, social equality, and nondiscrimination. This responsibility highlights the importance of continuously tending to the health of the social contract itself—the health of relations among the citizenry and the provision of foundations for flourishing equally for all. When either of those two dimensions of the social contact weakens, the capacity of the society to respond to moments of crisis will also weaken. In this crisis, we have all seen many ways our social contract is weaker than we might have thought. As we discover these weaknesses, we have to recognize that they also identify places where our resources, our supplies of solidarity and supportive volunteerism, are not as full and rich as we would ideally like them to be.

We have seen that the initial challenge to a constitutional democracy from COVID-19 was not merely the need for effective policy to control the disease and keep the economy open. The necessary policy framework was already in existence in other countries. The real challenge—and the one at which we failed in the United States—was for integrated judgment explained with sound, consistent public education. No laws of physics had to be broken to achieve a sound policy pathway and the infrastructure of implementation. It was necessary, though, to break the laws of politics. The law of politics dictates that a constitutional democracy must have a strong social contract to support the governance resources it needs to meet a crisis. In 2020, the United States did not have that strong social contract, and so it lacked civic strength. Successful near-term response to the COVID-19 crisis would have required us to repair our social contract at a pace that only angels could have achieved. Mortals—moving in mortal temporal cadences—can repair frayed social bonds only with the speed at which trust can be grown. Politics has a physics as well, and that physics derives from the temporality of trust.