For anyone reading this, it isn’t meant to be a scholarly work. It came about from a walk with a friend where we defiantly refused to mask up outside. Do you remember those days? It seems so far away that people would snarl and tell you to mask up outside. But it was only a year ago. Those individuals have moved on to the next glittery object that has caught their attention but for those of us who bore the brunt of their wrath, an unease and distrust continues — and rightfully so. As anyone who has been a victim of abuse knows, there is always a lull until the next strike happens.
On our walk, we would discuss whether our acts of defiance were legitimate or “were we the true a-holes?” I took my friend’s question seriously - were we right to defy the government in the professed emergency? I chose two historical instances where the government took strong measures against perceived threats. I knew little about either subject and approached it as I would a legal question for the court.
Social Contract
The term, ‘social contract’ is often bandied about when discussing the legitimacy of mandatory vaccinations for Covid 19 in the United States. The premise is simple: in a civilized society, following dictates for the benefit of others is the minimum of what the governed should do. Another way of framing ‘the yield of individual liberties’ is that there is a collective duty the individual owes to society in general in return for benefits enjoyed.
If it is called the ‘social contract’ then fundamentally it is referencing a contractual arrangement, albeit unwritten, that we enter into by being part of society. The question is this: if we are to be part of a social contract, should we not ensure that all elements of a fair contract are present? Considering the unequal bargaining power, should we not demand the highest order of morality for its terms? If essential elements are missing then it is nothing more than a contract of adhesion and an unconscionable one at that — where one side has all the power and the weaker party must accept the agreement with no room to question the terms.
History shows that when the government strays from respecting the basic concepts of fair and just social contracts, the damage strikes at the entire fabric of ‘a just and fair society’ with later ‘mea culpas’ doing little to make the victims whole or to ensure such transgressions never happen again. California has been a leader of such historical travesties. In one historical occurrence, a ‘sledgehammer’ approach was taken to an alleged emergency. In the second, an unsound scientific theory was used to inflict irreparable harm. Both involved specific segments of society who were identified, demonized, and found unworthy to have the full benefits of the ‘social contract’ thus their contracts were undone for the ‘greater good.’
The necessary elements of a contract
If Social Contracts are contracts, which by the very name indicates they are, then they require the following elements: parties capable of contracting; the parties voluntarily consent; the object of the contract is lawful and there is sufficient consideration. California codifies these basic tenets.
When looking at consent, it is not real or free if obtained through:
1. Duress;
2. Menace;
3. Fraud;
4. Undue influence; or,
5. Mistake.
It is the element of consent that is the focus of this essay. For it is within this term that so many shadows lurk and only through transparency and light can clarity be gained.
The social contract that incarcerated a segment of society whose heritage deemed them a security risk
February 19, 2022 marked the 80th anniversary of one of the great betrayals of the social contract between the governed and governing. It is one sullied with duress and fraud. On February 19, 1942, President Franklin Roosevelt signed Executive Order 9066 which created military zones on the west coast of the United States. By way of that order, there was a unilateral change to the ‘social contract’ between citizens of Japanese descent and the ‘governing’. Under threat of arrest, they relinquished their liberty as their collective duty for the ‘greater good’ — a good that promised to limit their ability to infect society with saboteur efforts. Newspapers, including the San Francisco Examiner, were in full support citing the danger they posed. So too were California business leaders who would later buy up the farms and businesses at distressed prices.
The blunt and wide-reaching edict encompassed not only able-bodied men and women, but also the infirm, the elderly, babies, orphans, and Japanese children adopted by Caucasian parents. In fact, echoing the Jim Crow laws, the administrators of the programs vowed that anyone with a drop of Japanese blood was to be interned. Fifteen camps were scattered throughout Arizona, California and Oregon. Race tracks, fairgrounds and similar venues were converted to house the interned all enclosed with barbed wire and guard towers. Some public officials, not satisfied with mere internment, argued that Japanese-Americans should be stripped of their citizenship, others argued that they should be subject to reprisals for the mistreatment of American soldiers by the Japanese military. There was even mention of forced sterilization.
The entire basis for rewriting a new social contract was based on accusations that all Japanese-Americans were a security risk. The very foundation for this ‘social contract’ was intentional fiction. The FBI, which was responsible for intelligence gathering, reported that ‘Japanese Americans possessed an extraordinary degree of loyalty to the United States’, and found no sound basis for mass exclusion. This conclusion was reached by other governing officials as well. Reports that Pearl Harbor was the result of a ‘fifth column’ (saboteurs) were unfounded. In a true spin of logic, the Attorney General of California, Earl Warren, argued the lack of evidence of a ‘fifth column’ should be interpreted that a future ‘fifth column’ was in the works.
There was strong opposition that the order was unconstitutional. (Meaning, that under ‘contractual analysis’ the very nature of the order was not for a lawful purpose). In response to such opposition, Earl Warren responded, “[t]here was no possible way of separating the loyal from the disloyal. When we are dealing with the Caucasian race we have methods that will test loyalty. But, when we deal with the Japanese we are in an entirely different field and we cannot.” Ironically, the ‘military necessity’ of interning Japanese citizens to prevent uprisings and saboteur actions did not extend to the territory of Hawaii. There the military commander, in conjunction with the local business leaders, decided Japanese Americans were too ‘essential’ to the Hawaiian economy to incarcerate them. So, despite the bombing of Pearl Harbor and Hawaii’s strategic importance, the officials there determined they were too important to intern. Thus the fate of Japanese-Americans depended on their geography and their economic benefit to others.
Constitutional challenges to order 9066 proved fruitless. In cases brought before them, the US Supreme Court found that the forced surrender was a legitimate exercise of presidential and military powers. That the order was rooted in fraud, corruption, and coercion, which yielded no benefit to society while inflicting horrendous harm, was irrelevant. There would be later congressional hearings with the acknowledgment that the fears were based on hysteria and economic motives. Obligatory apologies were issued with pronouncements that officials would ensure nothing like this would happen again.
The social contract that called for the sterilization of undesirables to preserve resources
While Executive Order 9066 forced the surrender of civil liberty, Supreme Court decision Buck v. Bell (1927) forced the surrender of bodily integrity for the ‘collective good’. At issue was the constitutionality of a Virginian statute permitting the sterilization of patients committed to an ‘institution’. As written, an institution’s designated medical personnel were permitted to order sterilization if they deemed it in ‘society’s best interest’.
Virginia was not alone in passing such legislation, other states had them as well. The statutes were in response to the ‘Eugenics Movement’, which had gained wide support in the US starting in the late 1800s. Eugenics was a ‘scientific belief’ that certain undesirable traits were inherited. Borrowing from the concepts of Darwinism, Eugenicists sought to help ‘natural selection’ along by weeding out those unfit for procreation as they drained society of precious resources. Persuaded by the soundness of this ‘scientific belief’, medical personnel, legislators, leading intellectuals, and social reformers all urged the passing of ‘Asexualization Acts’, or in simpler terms, the forced sterilization of specified individuals. These included those deemed feeble-minded, promiscuous, criminally inclined, or simply just insufferably poor. Juveniles as well as adults were sterilized either against their will or without their full understanding. California was a leader in developing the theory of Eugenics. Theories developed in the state were highly influential not only in the United States but in Europe and South America as well.
Carrie Buck, the ‘defendant’ in this case, was a poor young white woman. As a child she was sent to live with foster parents as her mother, Emma, was institutionalized at the Virginia Colony for Epileptics and Feeble-Minded. As a young teenager, Carrie was raped by her foster parents’ nephew and became pregnant. Upon discovering the pregnancy, she was surrendered to the authorities at the Virginia Colony. Like her mother, the institutional authorities found her to be feeble-minded and promiscuous.
The Colony was founded by Eugenicists for the purpose of reducing the reproduction by undesirables. To avoid arguments that involuntary sterilization violated a right of due process, the Virginia statute provided for a hearing where the patient could voice opposition. By all accounts, her case was a ‘friendly’ test case where the constitutionality of the statute could be determined. Even her appointed attorney had sympathies with the Eugenics movement. The case eventually reached the US Supreme Court. In upholding the statute the Court found that ‘due process’ requirements were met. Accordingly, the State had the right to sterilize identified segments of the population for the benefit of the whole. Writing for the Court, Justice Oliver Wendell Holmes opined:
It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11, 25 S. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765. Three generations of imbeciles are enough.
By this decision, the Supreme Court greatly extended the state’s police power it had permitted in the Jacobson decision. (This is the same decision used by recent court decisions to uphold vaccine mandates.) State powers went from permitting a monetary fine for a citizen refusing a vaccine under a specified emergency condition to depriving a citizen permanently of their reproduction rights for a ‘general social good’. The one dissenting vote in that decision was of Justice Butler, a practicing Catholic. The Catholic faith was a leading proponent against forced sterilization believing the spirit of the individual triumphed over government obligations. Asexualation Acts spread throughout the US with California as a leading proponent. The Acts, as well as Buck v. Nell, would later be cited by defendants at the Nuremberg trials. Despite falling into disfavor after revelations of Hitler’s concentration camps, sterilization on a smaller scale continued into the 1980s. California didn’t repeal its law until 1979. By 1921, California accounted for over 80% of sterilizations. Over 20,000 people were sterilized in California from 1909-1979 including children.
The social contract that demands a forfeiture of liberties while removing any future recourse for damages
All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law. California Civil Code §1668.
Executed Order 9066 and the ‘Asexualization Acts’ impacted large swaths of identifiable groups with blunt and brutal force for exaggerated or non-existent threats. The sterilization acts were rooted in scientific theory that would later be debunked as junk science. Congressional hearings, commissions and other hearings would later lead the government to acknowledge wrongdoing in both instances and to extend monetary compensation.
With the Covid edicts, we are in a time where the government ‘net’ has been thrown as wide as possible, encompassing unprecedented restructuring of the ‘social contracts’. More insidious it has also insulated itself and its ‘working partners’ from any resulting harm. So while the governed are forced to abide by edicts – including injecting their body with a substance, there is no financial recourse for any resulting harm. What this means, is the ‘new social contract’ contains an exculpatory clause. In its simplest terms, such a clause shields one party from any financial liability for the negligent harms it may cause.
California Courts generally acknowledge private parties can include exculpatory clauses into agreements. For example, most contracts for athletic activities contain such clauses, because the agreement is between private parties and the service and is determined to be not essential and thus not of greater public interest.
What is a public interest? The following are characteristics: the entity provides a service of great importance to the public which is a practical necessity for at least a portion of the population, it is of the type often regulated by statute and is open to the public who seeks such service. For example, a ‘charity’ hospital serving the poor is a provider of an essential service. (Tunkl v. Regents). Because of the circumstances, it is assumed there is unequal bargaining power between the hospital and the person seeking medical treatment. By having limited financial means, that person has limited options. The person is forced to either forgo medical care or to submit to an agreement under duress to obtain needed care. It is for this reason California Courts have long held that such service providers cannot seek to absolve themselves from their own future tortious conduct. To allow such provisions would transfer the burden to the party that has the least ability to afford it. Up until now, when a public interest is involved, an exculpatory term is deemed against public policy and therefore, will not be enforced.
The sweeping government Covid crisis orders have encompassed the nefarious traits of both the internment and the sterilization of citizens, while simultaneously doing away with the prohibition of exculpatory clauses for essential public services. Government officials, many unelected, rewrote ‘the social contracts’ behind closed doors. No seat at the table for the governed was allowed — not even through their elected representatives.
These new social contracts declared which businesses were deemed essential versus unessential. Thus, like the Japanese-Americans in Hawaii, economic interests polluted the decisions. The operation of a framing store was deemed ‘not essential’, but a Target, with its own picture frames for sale, was deemed essential and open for business. Was the large tax provided by ‘box stores’ a consideration of this decision? The owner of the shuttered closed business will never know. Those who defied the orders were met with penalties or law enforcement at their door.
The shutting of business, schools and masking, including children, was akin to Eugenics, based on pseudo-science that cannot withstand serious scientific scrutiny. Many medical scientists early on knew this. Yet, like the fiction as the basis for Japanese internment, it was done anyway. As the famous author/psychiatrist, Scott Peck, MD warned decades ago, ‘science without debate is not science’. Drawing another analogy to the internment, one must wonder if the ‘business interests’ of those advocating the closing of schools and continuing ‘the masking of children’, do so because of economic interests.
While the closure of businesses, schools, and other mandates was arbitrary and capricious, a benefit-of-the-doubt argument as to their soundness can be made — albeit a weak one. The immunity provided for those who have created Covid vaccines and the government mandates for them have no such argument.
The government and those acting on their behalf, which includes all businesses, medical service providers, and most egregiously the manufacturers of the vaccines, have been relieved of liability for their actions. This is the very definition of a contract of adhesion — where one party has all the power and the other, has little or no options. In this situation, the individual is up against the State as well as private and public business entities demanding they submit to a medical procedure in order to keep a job or move freely in society. This is the epitome of unequal bargaining power. It is like the patient at a charity hospital that is forced to sign away rights in exchange for medical care. This is absolutely contrary to the established principles of California law, which for so long sought to protect those with no meaningful bargaining power. Here, there is no bargaining power. The individual must submit or lose their job or be denied an education. Even personal and religious exemptions, long-standing social norms, have been swept away.
Worse is the insulation from liability of the manufacturer of the vaccines. In no other setting can a manufacturer of a product insulate itself from its own negligence. With no input from the governed, the Governing has unilaterally changed the rules. Whereas a pharmaceutical company can be sued for failing to warn of potential harm for any of their other products, a legal bubble shields the vaccine products and the profits obtained. So, in gross violation of established California law, where the risk of harm cannot be forced upon the individual with little to no bargaining power, this is exactly what has happened here.
There are many in society who do wish to obtain a Covid vaccine as a measure of protection. This should be a protected right. Yet the voluntary and willing submission of the procedure does not absolve the need for true informed consent. The State of California, through numerous PSAs, and connections to media, sent a message that it was important for everyone to become vaccinated. In essence, it was a strong public policy to have as many become vaccinated as possible. Many Californians chose to do so, either for their own health reasons or to help fulfill the public policy. However, California’s public policy does not absolve them of fully informing people of the risks. Duty to inform trumps public policy. Accordingly, there is an obligation to fully inform patients of known risks, notwithstanding the State’s interest in encouraging vaccination. Without such explanation, there can be no argument that there was ‘informed consent’ which is the very basis for a lawful contract.
Conclusion
“History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.”
Justice Thurgood Marshall, Skinner v. Railway Labor Executives ‘ Assn. (1989)
Phrases such as ‘War on Covid’, set an unprecedented response to a health crisis. Responding to the crisis was like war officials freely using powers reserved for the most extreme emergencies. However, whereas in the past, vocal opponents and proponents could engage in civil discourse, this has not been permitted for Covid. Instead, advocacy for censorship and loss of liberty and body integrity has become the norm. Courts have given great deference to edicts from elected and most egregiously, non-elected officials.
Such deference is only to be applied where no fundamental right is involved. When constitutional rights are involved, the Courts take an approach similar to those applied in a criminal setting where it is on the State to prove their case. Courts are to presume such edicts are unconstitutional and it is on the government to prove their necessity and that they are narrowly tailored to meet a specific purpose. For the Covid mandates, many courts have applied the wrong standard by either judicial incompetence or malfeasance based on the ‘urgency’ warned of by Thurgood Marshall. This incompetence or malfeasance was at the heart of the Japanese internment as well as the ‘Asexualization Acts. As stated in the opening of this essay, when the Government strays from a fair and just ‘social contract’ between the governing and the governed, it results in shredding the fabric that holds society together.
Sadly, just like the Eugenics movement and the enthusiastic support for the internment of those of Japanese ancestry, California is once again leading the way on matters that will be viewed as horrific in years to come. Governor Newsom is proposing an agency to deal with ‘misinformation’, as it pertains to Covid 19 treatment. There is also a bill before the legislature that would empower the medical board to seize the medical license of any doctor who is not lockstep with the ‘official’ position on Covid 19 treatment. By their nature they will seize liberty for the entire population of California to voice dissent and with respect to doctors, to abide by their own expertise and conscience in the treatment of patients. This is a change in the ‘social contract’ between the governed and governing at a level never seen before – not even during times of war.
There is only one way out of this looming abyss. We must re-establish the dignity and rights of the individual. Going forward, there should be a continued recognition of the ‘social contract’ theory but it should be rewritten with notions of ‘the collective duty’, giving way to individual responsibility and morality. If Government edicts are to become quasi-criminal rules, there should be meaningful challenges allowed by affected individuals. Just like the protections provided in the criminal system, we should codify language similar to the sixth amendment for the taking of any liberty or property.
A rough proposal could include:
‘Whenever the liberty or bodily integrity is to be limited by government edict, the individual subject to such edict has the right to be fully informed as to the need for such edicts, to confront those witnesses in support thereof, and to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.’
It is essential we codify such a measure so the Courts cannot simply ignore the ‘strict scrutiny’ test they have failed to follow for Covid emergency measures. It must be incumbent on the officials to prove the necessity and not for the ‘governed’ to prove they are unnecessary. Such a provision is essential to restore the human dignity of the individual and to restore faith in one another. We must return to assuming another will do the right thing, not out of fear or coercion of the government, but out of the morality that it is the correct thing to do.
We must prevent from ever happening again the damage done by the governing, when hysteria begets deprivation, which in turn begets later official mea culpas with vows that such travesties will never happen again. In other words, without such protection, we will continue with: wash, rinse, repeat until our societal fabric is completely undone.
Resources:
Western Defense Command and Fourth Army, Civilian Exclusion Order No. 7 (April 20, 1942).
Report by Commission on Wartime Relocation and Internment of Civilians 1983.
Jacobus tenBroek, Edward N. Barnhart, Floyd W. Matson “Prejudice, war, and the Constitution” Berkeley University of California Press (1975).
Phillip Thompson. “Silent Protest: A Catholic Justice Dissents in Buck v. Bell,” (2005) The Catholic Lawyer
Bessie Blackburn. “Cited at Nuremberg: The American Eugenics Movement, its Influence Abroad, the Buck v. Bell Decision, and the Subsequent Bioethical Implications of the Holocaust,” (2021) Liberty University
https://en.wikipedia.org/wiki/Eugenics_in_California
This looks soooo inviting to me... I am saving it for later, and will comment after. Thank you!
Holmes' words were chilling. I'd heard about the case, but never read this direct statement of his. Eugenics, forced vaccination and the aggressive promotion of abortions - interesting how they tie together.
There is a group that gets demonized for discouraging abortions, but guess how they are successful: they give pregnant women considering abortion free ultrasounds. And with no other effort, 50 percent of women considering abortion change their minds just through seeing those images of their unborn baby. If Planned Parenthood were really for women's choice, why wouldn't they, too, offer ultrasounds? Because, of course, they want coercion in the specific direction of abortion, not a true choice for those women.
If society continues down this road of government-backed coercion, we are heading back toward the dark ages. Thank you for this thoughtful piece!