Social Contracts and Contract Law

I was in New York City over the past weekend to participate in the annual St. Patrick’s Day parade. I was part of the contingent of reenactors from the Maryland-DC-Virginia area who fell in with the New York-based 69th New York, portraying the original unit that made up part of the Union Army’s Irish Brigade during the American Civil War. It is always a fun occasion but in the face of a number of controversies in both Washington and New York over who is fit to march in parades and who is fit to wear the country’s uniforms, it was also thought provoking.

During the years before American Civil War – and even after it – Irish immigrants faced great prejudice in this country expressed by such groups as the anti-immigrant/anti-Roman Catholic “Know-Nothing Party” of the 1850s and others. Even if the appearance of the “No Irish Need Apply” signs has been exaggerated, they represent a real attitude of the times. My own paternal grandfather held a prejudice against the Irish right up to his death in the 1970s. In spite or perhaps because of this, the Irish were the second largest ethnic group represented in the Union Army during that war, with some 200,000 men enrolled. [The Germans were the largest foreign-born contingent at an estimated 216,000 men and there were a reported 210,000 African-Americans enlisted by war’s end.] For the Irish in 1861, such service was a step forward in their struggle for the fullest exercise of their new citizenship and its recognition by American society at large, just as it would be during the much longer struggle by African-Americans and later women.

The idea that service in a nation’s armed forces will win one a stronger claim to an equal place in that nation’s socio-political-economic system was not a new idea in 1861. Even today, honorable military service is a pathway to U.S. citizenship for many immigrants. During the American War for Independence, African-Americans fought both for the British and for the American colonies seeking to win a place for themselves and their community within whatever victorious entity emerged from that conflict. They would be disappointed, as the newly independent American colonists would push them aside in establishing their new country while the British took many of their African-American veterans and sold them on the slave marts of the West Indies.

This idea is a reflection of something I learned in my study of military history and military theory. Most nations, but especially democratic societies such as the United States, have an unwritten social contract between the society at large and those individuals that makes up the armed elements that defend that society. The contract terms vary from country to country and often alter with the passage of time and changes in that society. This contract authorizes these individuals to take up arms and exercise lethal force against the identified enemies of the society. The contract thus empowers these individuals to do things in the name of that society that if done under other circumstances would result in their arrest and punishment at the hands of society. In return for their willingness to fulfill this role, society agrees to honor and reward them, support them and their families, and within bounds protect them from any consequences of their actions on its behalf.

The relationship thus defined by this contract is not without its bumps, faults, and errors. African-Americans fought in the American Civil War, in the post-Civil War conflicts with Native Americans, in the Spanish-American War (all too many people remember Teddy Roosevelt but ignore who else charged up San Juan Hill), served in the First World War (only a few were actually allowed to serve in combat), fought in the Second World War, and only during the Korean War were the Armed Forces officially integrated (society took longer). The presence of women in our Armed Forces can be said to be older than the country, but it has only been recently that our Armed Forces and society at large has been forced to face the reality that no one wearing a uniform can be protected from or is immune to the risks of combat.

Now we are confronted (again) with the issue of the presence of Gays in the Armed Forces. Despite the veil often drawn over such things by both contemporaries and succeeding generations, there are examples throughout history of homosexuals engaged in war and combat with generally the same degrees of success and failure as heterosexuals. There is no inherent reason to believe that Gays cannot serve ably in our Armed Forces and based upon reports from Iraq and Afghanistan, there is in fact every reason to believe the contrary.

What has to be understood about the social contract is that it is a two-way street. Society has the right under this contract to require that its Armed Forces reflect that society in their makeup and society’s values in the way in which the Armed Forces fulfill their duties. When society came to believe it was the thing to do, the Irish, the African-Americans, and women (though still reportedly confronted by issues of harassment and assault) were all given the opportunity for military service. When the day comes that America concludes Gays deserve that same right of serving in the Armed Forces without fear of prejudice it will become a reality. It appears that this point has not yet been reached – but it appears to be coming closer – and based upon history it will probably come before many people are ready for it and will have taken longer than it should have.