Vehicles burn in Washington after demonstrations protesting the killing of George Floyd by a police officer. Photo: AFP

The First Amendment to the US constitution guarantees the “right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This is a radical departure from typical monarchal regimes, such as those in France and Russia before the revolutions, or in modern right- or left-wing authoritarian regimes, such as those coming to power after those revolutions.

The right to assemble must be dearly protected. To confuse violent rioting with the right to peaceful assembly, for instance, using the word “protest” to refer to both, threatens the latter, because rioting is a rejection of the social contract, which is precisely what assures the right to peaceful assembly. Outside the social contract, there are no political rights.

Some US cities have endured rioting for two months. Throughout, some mayors have ordered the police to stand by and let it occur, thereby allowing massive destruction of property, large numbers of injuries, and even deaths. Whatever the motivation for their actions, these mayors are breaking the social contract, which, at its most primary level, is an agreement between citizens to submit to the law rather than to take action on their own behalf.

In his Second Treatise of Government, John Locke writes, “Force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war.” A mayor who allows one person to do violence to the person or property of another has removed Locke’s “common superior” and has opted for a state of war. She has suspended the social contract and allowed a return to the state of nature.

Locke writes, “To avoid this state of war (wherein there is no appeal but to heaven, and wherein every the least difference is apt to end, where there is no authority to decide between the contenders) is one great reason of men’s putting themselves into society, and quitting the state of nature.”

It would be a mistake to lay the full blame for the present lawlessness on the current mayors. For several decades there has been a growing attitude that the US is a nation of men, not of laws, a reversal of John Adams’ view.

Leaders choose the laws they wish to enforce based on their own political beliefs and issue executive orders that have no legislative authority. Courts ignore the constitution and issue decrees based on personal agendas – a salient example of lawlessness. A mayor who sees her political ambitions enhanced by supporting or protecting rioters from arrest and prosecution is simply following suit.

However, there is a significant difference between allowing rioting and typical dereliction of duty with regard to the law: Rioting, especially when it is organized, aims to destroy the social contract. This is evident in its insurrectional nature.

The police represent the civil society in its desire to avoid the state of nature. Without them, there is no recourse other than for each person to defend his perceived rights as he sees fit. It makes sense for those who wish to destroy the social contract and return to the state of nature to wish to defund the police. When the police are assaulted and, on account of the mayor, the attackers not arrested, she has violated her most basic responsibility, that of maintaining the social contract.

This is not to say that there are no bad cops; there always have been and always will be. These must be weeded out when discovered. Those who commit crimes should be punished to the fullest extent of the law. And it is not to say that the police should be given a free hand to engage in a counter-riot, such as occurred during the 1968 Democratic Convention in Chicago.

But it is to say that those who break the law should be arrested, and that areas of a city should never be ceded to rioters. Declaration of an autonomous region is a withdrawal from the social contract and there should be no negotiation. If negotiation were the issue, then the occupiers would have operated under the First Amendment. Their removal should be swift, and with the least amount of violence possible.

The rioters have their reasons. Why should they care about the law, so long as they achieve their ends? Like their Calvinist, Inquisitional, and Marxist predecessors, they have no interest in the free exercise of religion or freedom of speech. Neither reason nor law will stand in the way of their righteous demands.

In A Man for All Seasons, Thomas More’s servant William Roper says that he would “cut down every law in England” to get the devil. “Oh?” responds Thomas More,

“And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

Rioting is not new, and the current violence in the US has so far been historically modest. One might think of the beheading of Louis XVI on the road to Robespierre’s Terror.

One doubts whether many (or perhaps any) of the mayors who have blithely allowed the tearing of the social contract are familiar with the More quote. Otherwise, they might hesitate for a moment and wonder if they will be able to stand upright in the winds that they are helping to seed.

Might it be their homes that are attacked or their cars that are surrounded? Of course, they will not let the police stand down when it comes to their protection. But once the contract is shredded, who can predict where the tide will run? Who would have predicted, only a few years earlier, the beheading of Louis XVI, the murder of Czar Nicholas, or the killing of Leon Trotsky on the orders of the head of the Communist Party?

Americans must decide whether they want a lawless society, or one based on law, in which their rights are secure. If the choice is for law, then the law must be enforced as written, not at the whim of politicians. Those who prefer law must recognize that rioters prefer a lawless society and, therefore, ipso facto, reject the protections provided by the social contract, in this case, the US constitution.

This is not a question of government policy or political persuasion: It is irrelevant whether the rioters are of the left or of the right. Rather, it is a question as to the nature of government. Would you expect those who reject law to govern by law were they to gain power, or would it be more likely that they continue in their lawless fashion?

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Edward R Dougherty

Edward Dougherty is distinguished professor of engineering at Texas A&M University.