SPEAKING OF LOCHNER...

Kevin LoVecchio is right to argue over at TPMCafe that the libertarian faith in free contracts willfully ignores to extent to which many of the contracts Americans are coerced into on a daily basis are "not about negotiations, but instead are about tricks and traps." The conservatives' ironclad, reality-be-damned faith in the absolute inviolability of contract has an ugly historical pedigree, going back to Congress' refusal, on "free contract" grounds, in the wake of the Civil War to punish industrialists who knowingly sold defective weapons to the US Army. It's philisophical pedigree is fraught as well. Hobbes, for example, insists that "Covenants entered into by fear, in the condition of meer nature, are obligatory" lest collective irrationality in the absence of contract fundamentalism drive societies into the war of all against all whose avoidance Leviathan sets forth as the major task of political philosophy. Such an argument begs the question of whether human desires can really be inferred from contractual behavior in absence of full information or meaningful alternatives, and of whether human beings have any inalienable rights which they are themselves unable to contract away. Modern conservatives would do well to remember that even Hobbes is forced later in Leviathan to recognize that there are indeed limits on the individual's freedom to contract freedoms away. "A Covenant not to defend my selfe from force, by force," he writes, "is alwayes void." No human being, Hobbes argues, would knowingly trade away the fundamental right to self-defense, nor should an attempt to do so be recognized as valid. Hobbes thus qualifies his faith in contracts as guardians of collective peace and individual liberty with a nod to inalienable rights. What Hobbes does not or cannot set forth is what should distinguish a promise not to defend oneself from violence from a range of other contractual promises - from mortgaging your home to renouncing union membership - which men and women are coerced into making every day, and which many experience as threats to their bodily integrity or that of their families. None of the free contract fundamentalists, most of them members like Hobbes of a class with little reason to fear for their economic security, has come up with a convincing answer since then either.