Americans No Longer Believe in the “Consent of the Governed”

"The Signing of The Declaration of Independence" by Charles Édouard Armand-Dumaresq (1826-1895)

“The Signing of The Declaration of Independence” by Charles Édouard Armand-Dumaresq (1826-1895)

Way back at the founding era, Americans took seriously the idea of the “consent of the governed.” As Greg Weiner noted recently, and as I’ve discussed elsewhere, this consent is exercised collectively, either in aggregating individuals’ votes or through voter representatives. But Americans at the Founding took seriously the idea that their consent could be conferred by their representatives. This belief has changed in the intervening couple of hundred years. On both left and right, Americans now talk about taxes being forced on them to pay for things for which they disapprove, even though their respective legislatures adopted the taxes. I doubt many Americans today seriously believe that they’ve consented to most of the laws and taxes that their legislatures adopt. What changed?

The “consent of the governed” is a fundamental postulate of the Declaration of Independence, and is only somewhat-less known (and celebrated) than the Declaration’s affirmation of people being created equal and endowed with inalienable rights. (Belief in those things for another post.) What does it mean for the country when most of its people no longer believe one of the Declaration’s fundamental commitments?

We underestimate today the seriousness with which Americans initially took the idea of corporate consent. Most well known is the Declaration of Independence’s affirmation that governments derive their just powers from the “consent of the governed.” This relates to the creation of government; to the constitution-making, or constituting, stage in its most general form.

But the Declaration also asserts the need for consent to specific policies. It complains of the King “imposing taxes on us without our consent” and also objects to the keeping of a standing army “among us . . . without the consent of our legislatures.”

John Dickinson, writing the Farmer’s Letters before the Revolutionary War, refers to taxes set by Parliament as being “free gifts of the people” to the King. He added, “Taxes . . . were always considered as gifts of the people to the crown, to be employed for public uses.”

Of note is that the Americans were not complaining about the level of taxation. A modest tax without consent was objectionable; a high tax with consent was fine. The moral significance of this is difficult to understate if this consent is real: A government with extremely high taxes under the consent theory is no more objectionable than, say, a person having high car payments to pay because that person chose to buy an expensive car.

But today just about any American complaining about a tax or policy would retort, “But I didn’t choose for the government to do that,” and think the point obvious. But that retort, and the sense that it’s obvious, is what’s new. That’s the change.

During the Founding era, the consent of one’s representatives were taken as equivalent of one’s own consent. The Massachusetts Constitution of 1780, for example, articulates the equivalence at several points. Section 10 of the Declaration of Rights provides that “no part of the property of any individual . . . [can] be taken from him . . . without his own consent, or that of the representative body of the people.” Section 23 provides no tax can be levied “without the consent of the people, or their representatives in the legislature.” So, too, the constitution prohibited the governor from sending any member of the state military out of the state, “without their free and voluntary consent, or the consent of the [legislature].”

Consent through one’s representatives was not simply rhetorical lip service, it counted as real consent. This was a critical element in the case for the Revolution.

But the equivalence between legislative consent and individual consent did not survive very long without complication.

In part due to legislative excesses during the 1780s, James Madison spent much of the same decade brooding about “faction.” In particular he worried about the problem of majority faction. In Federalist No. 10 and No. 51, Madison implicitly draws a line between outcomes of ordinary legislative politics, with which one may disagree but does not implicate, as it were, one’s consent to the policy outcome, let alone to the regime, and policy outcomes so oppressive or unjust that one’s consent could not be reasonably deduced. Tocqueville’s tyranny of the majority sketched much the same problem.

Popular rhetoric evolved as well. Jumping another century, it becomes common for Americans on both the Left and the Right to speak as the ruled being governed by the rulers. It is common on the Right, for example, to distinguish between “true” charity – which is voluntarily given by individuals – and government welfare, which is coerced. This is a long way from the notion of taxes being gifts of the people, as consented to through their representatives. And libertarian scholar Randy Barnett rejects outright any claim of the “consent of the governed” outside of actual, unanimous, individual assent. The Left is little different. There is a long tradition of not paying income taxes because of objections to military spending, not withstanding the consent of one’s representatives.

We can argue whether there’s a way to defend or re-found the Founding-era view. The point here is, whether it can be defended philosophically, as a practical matter, most Americans have already jettisoned belief in the proposition. Americans now almost universally reject one of the most-fundamental claims in their Founding document. Something those early Americans believed in strongly enough to fight and die for. That’s a pretty big change.

James R. Rogers

James Rogers is associate professor of political science at Texas A&M University, and is a fellow with the Institute for Science, Technology and Public Policy at the Bush School of Government and Public Service. He also served as editor of the Journal of Theoretical Politics from 2006 through 2013.

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  1. nobody.really says

    1. I’m skeptical about the embrace of “consent of the governed” in the good ol’ days. Clearly women, Native Americans, and slaves were to some extent “governed.” Did they really express the idea that they had consented to their circumstances? And even among free men, did the abolitionists really acknowledge that they consented to slavery?

    2. On taxation:

    But today just about any American complaining about a tax or policy would retort, “But I didn’t choose for the government to do that,” and think the point obvious. But that retort, and the sense that it’s obvious, is what’s new. That’s the change.

    Indeed. And it’s loopy. Few people embrace the idea that citizens should be excused from paying taxes because their dollars would help fund a war in Iraq that conflicted with their views—even though most people now agree that the war was a mistake. Likewise, people seem fairly resigned to the idea of paying taxes to fund public schools, even when they don’t approve of everything taught in those schools. “I didn’t choose for government to do that” doesn’t carry any water here.

    But imagine government told people that they no longer had to pay taxes for schools—but that they still had to send their kids to schools on their own dime (ok, let’s toss in some subsidies for the poor), and those schools had to meet certain minimal government-defined standards. Do you suppose people would rejoice at not having to bear this tax burden, and at the freedom that they now got to exercise in shopping for schools? Or do you suppose that they’d sue because government specified that all schools should teach sex ed, which offends their values? Sure, the public schools had also taught sex ed. But now that a parent is involved in choosing a school rather than having it foisted upon them, this act of choosing would somehow implicate the parent in the result, which would be too much for their consciences to bear.

    Ok, maybe that sounds silly. But that’s the story of Hobby Lobby. The Supreme Court acknowledged that the Obamacare individual mandate was a tax. Clearly government could have agreed to provide all citizens with taxpayer-financed coverage for a variety of things, including birth control, and no one could have raised a successful legal objection. Instead, government adopted a different mechanism, providing people more choice. And because the plan involved decentralized decision-making rather than centralized decision-making, people argued that the scheme offended their religion—and they won.

    “I didn’t choose for government to do that” has become are article of faith.

    3. Maybe people no longer embrace the “consent of the governed.” And maybe it’s all for the best.

    Instead of ringing phrases such as “consent of the governed,” I like Churchill’s remark that democracy is the worst form of government ever devised—except for all the others. Not as ringing, but more accurate—and not so prone to raise false promises in people’s minds.

    The problem with “consent of the governed” is that it erases those who dissent. Instead, I prefer a frank acknowledgement about the nature of power. I like to acknowledge people who dissent, honor them with simple recognition, and then conclude that on this occasion other views have carried the day. Whatever shortcomings this approach has, they strike me as less harsh than a policy of simply denying that dissenters exist.

    After all, I don’t suppose that Thoreau really thought that by going to jail rather than paying taxes, he’d really end slavery or the Spanish American War. Rather, I expect that he wanted to express the depth of his opposition to these policies. And ultimately, everyone got what they wanted: Government got its revenues, and Thoreau got to make a statement about his beliefs. That’s strikes me as the best outcome that could be achieved under the circumstances.

    • gabe says

      #1 – Once again, we observe that the “perfect is to be the enemy of the good (Ok, perhaps the “better” as we all agree it could have been “good-er”).

      But perhaps, the real issue here is not so much a substantive / substantial change in the perceptions of the people but rather in the Behavior and perceptions of the Elected Representatives; clearly their behavior is motivated by something other than the duty and *virtu* anticipated by the Framers, and in fair measure practiced by the Elected Representatives. And what of the perceptions, the epistemological reality of the Representative. How many may truly be said to be working to represent the people rather than their own interests.

      In an accompanying post by John Marini (a response to other essays) at Liberty Law Forum, discussion is made of the loss of belief in “organized intelligence” (subsumed under that would be “consent”, BTW). Ambition and duty, amongst other traits, are discussed. I offer the opinion that for the modern Legislator, duty has been superseded by “vanity”. If true, is it any wonder that “consent of the governed” may no longer be the peoples understanding of their government.

      http://www.libertylawsite.org/liberty-forum/overthrowing-the-rule-of-organized-intelligence-john-marini-replies/

      Read the essay – you will enjoy them.

      BTW: Thoreau must have been quite prescient or visionary when at Walden Pond if he knew of the Spanish American War; could have been some herbal supplements, I suppose. Ha!

      • gabe says

        Oops! should read: “…and in fair measure practiced by th[ose early era Elected Representatives. “

    • nobody.really says

      1. I’m skeptical about the embrace of “consent of the governed” in the good ol’ days. Clearly women, Native Americans, and slaves were to some extent “governed.” Did they really express the idea that they had consented to their circumstances?

      Ok, new hypothesis:

      “Consent of the governed” has always entailed some degree of control by the majority and subjugation of the minority. But people may have expressed greater or lesser enthusiasm for the idea of the “consent of the governed” to the extent that the majority and minority identified with each other. In short, enthusiasm for this concept may be a proxy for social cohesion.

      And perhaps today we find ever less enthusiasm for this concept because social factions no longer identify with each other, and are more likely to regard members of a different faction as “the other.”

      And perhaps this arises because we recognize that members of the other faction may involve people of a different social group–and especially, a different race–than ourselves. As Pulliam and other social scientists have observed, social cohesion declines in integrated neighborhoods. It’s not just that people don’t trust those who look different than themselves; they also stop trusting people who DO look like themselves.

      In colonial days, blacks, women, and Native Americans may not have consented—but their opinions simply didn’t matter. White men of property lived with unprecedented levels of homogeneity—not just in race and sex, but also in income and social standing. The industrial revolution, the rise of cities and decline of agriculture, the growth of immigration (especially among non-English speakers), the suffragette and civil rights movements—all these dynamics eroded the sense of homogeneity.

      Some commenters have remarked every time government has expanded the franchise, it experienced a growth surge. Arguably this reflects government’s effort to cater to the new constituency by providing the services that the new constituency demands—demands that government had previously ignored when the constituency lacked any voting power.

      So, for example, when the Voting Rights Act was passed and blacks could effectively vote, suddenly governments felt the need to extend roads, sewers, police service, fire service, education services, etc., into black neighborhoods. Not surprisingly, people who did not live in these neighborhoods would not see the benefit of such investments. They generally appreciated the need to extend such services to people such as themselves, and thus regarded those expenditures as occurring with the “consent of the governed.” But incurring such costs for the benefit of people they did not identify with would not trigger the same sense of value. Those expenditures might well trigger doubts about whether government was still acting with the “consent of the governed.”

      If this is the relevant dynamic identified by Rogers, then the problem may be intractable.

      • gabe says

        Nobody:

        OK, agree with the sense of the comments and the details (ain’t that something new,Ha?).

        I would add only one other element to the analysis of the current lack of social cohesion – “multiculturalism”

        Whereas, in the past, the dynamic of ‘otherness” surely played a role, albeit, perhaps not as significant as you advance (my own experience in multi-race, multi-ethnic neighborhoods was somewhat different) , there was still an overarching culturally stated preference for assimilation. to the extent that this drive for assimilation may be said to have afforded both the immigrant or “other” the opportunity to become accepted, if not fully respected, AND it permitted the native / dominant / majority (pick your term, here) citizen to be accepting or at least to be perceived as accepting, it may be argued that it was *inclusive*.

        Not so now, my friend. The predominant, or at least the most vocal, thrust is for the celebration of our differences. This does not seem, to my mind at least, to be inclusive; nor may it be said to conduce to social cohesion. Doubtless, the much vaunted ‘cohesiveness” of earlier epochs in US History has been overstated and there was (and probably always will be) a certain restiveness / suspicion amongst and between different groups AT FIRST EXPOSURE – but it does subside, does it not. does not our own history tell us that?

        And yet, I would argue that many amongst those who harbored those suspicions about the other would not have disagreed with the proposition that the *other* also was entitled to be ruled by consent. There is a difference between “ignorance” of the plight of the “other” and open hostility or indifference to the “other”.
        And yes, for a considerable period of time, what you say was true for racial minorities. Even this has changed, has it not?

        Still there is (and was) a stubborn belief in consent of the governed, tempered, of course, by somewhat atavistic attitudes regarding gender, race and at times ethnicity. The “myth” (as you would have it) persisted through some rather trying times, emerging always at the, and as the core of the American Republican scheme. Beyond nativist suspicions, racial prejudice, etc – still it persisted.

        If i sin, the Good Sisters of St. Joseph, would ask, does it mean that I don;t believe. Dear Sister would kindly inform me: “No, you dolt, you just sinned – that is all.”

        The question for present circumstances is this:

        Are our sins, or the sins of our government such that we no longer believe?
        I think not. I think we are affronted by the *sins* of our government, a feeling shared by both the right and the left. Yet, the “myth” persists, comforting as a the memory of a soft breeze upon one’s cheek, that “government by consent” stubbornly survives and ought to survive. We are not quite ready to abandon that particular memory.

        • gabe says

          nobody:

          Knowing how much you like Pierre Manent, herewith is a small sample from an essay of his that may bear on our discussion:

          “For the next generation, the events of May 1968 were their decisive experience. Both its partisans and critics agree that after May ’68 we became a society that undoes its bonds. France [or US possibly/] was no longer seen as a distinctive nation that strives for unity and independence. Collective rules, both political and social, were delegitimized. The citizen of action was succeeded by the individual of enjoyment. This movement appeared to be very political, even revolutionary, with its various groups competing to be the most radical ideologically. In reality, political differences were leveled in a flood of slogans, and the scene was prepared for THE GREAT WITHDRAWAL OF LOYALTY FROM THE COMMUNITY (caps added), a withdrawal that would take place over the years to follow. ”

          https://www.firstthings.com/article/2016/04/repurposing-europe

          I submit that the WITHDRAWAL is both cause and effect of the loss of a sense of “government by consent.”

    • Alfred J. Lemire says

      I am no lawyer, but my understanding of the Burvell v. Hobby Lobby decision of the Supreme Court may be closer to the decision’s key judgment than that given here. See https://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf

      The majority applied the Religious Freedom Restoration Act to the administration’s decision to require the Green family, owners of Hobby Lobby, to provide insurance for four methods of birth control that they considered to be abortifacients, i.e., they were designed to end life after conception. The Greens did not object to 16 other contraceptive drugs and devices that the FDA had approved.

      Many people think the decision hinged on Hobby Lobby’s opposition to all FDA-approved contraceptive drugs and devices. Perhaps they do so because they have relied on what journalists reported.

      An article at Politico by Jennifer Haberkorn and Josh Gerstein contended in its lead sentence that the 5-4 majority ruled that, “that for-profit employers with religious objections can opt out of providing contraception coverage under Obamacare.” Near the close of the 1,087-word article, one learned that the owners of Hobby Lobby and Conestoga Wood Specialties, a Pennsylvania cabinet-making company, “said they have religious objections to providing access to certain forms of contraception — Plan B, Ella and certain intrauterine devices, which they call abortifacients — in their employee health plans. ” Perhaps many people never got that far, reading the lead mentioned above and the headline, “SCOTUS sides with Hobby Lobby on birth control,” reading a few more paragraphs, and then going on to something else.

      An Associated Press article by Mark Sherman mentioned Hobby Lobby’s assertion of “religious claims to avoid covering some or all contraceptives in employee health plans.” He did not clarify that Hobby Lobby accepted 16 of the contraceptive drugs and devices, nor that they objected solely to what they considered to be abortifacients, which evaluation happens to be accurate.

      I recall reading and hearing many other references to the decision, none of which truthfully presented what the Hobby Lobby owners objected to in the coverage the government imposed, with, as I recall, a massive fine for noncompliance.

      • nobody.really says

        That’s a fine summary of the Hobby Lobby decision, but I fear you’ve missed the point.

        But the topic we’re discussing is the extent to which an individual American accepts that democratically-adopted law reflects “the consent of the governed,” even when that individual disagrees with the policy adopted. As we can read in the comments, many people don’t. I was pointing out that this view has recently been vindicated by the Hobby Lobby decision.

        In prior cases, courts had ruled that (1) people cannot be excused from paying their taxes merely because they disagree with government policy or how the tax dollars will be spent, and (2) the Obamacare individual mandate as a legitimate exercise of Congress’s taxing authority. Yet Hobby Lobby argued that individuals should be excused from complying with the individual mandate because they did not want to see their tax dollars used to finance insurance that covered certain types of contraception. But as we know, my tax dollars are not mine; they belong to the government. Likewise, the money Hobby Lobby spent on health insurance was not Hobby Lobby’s; it belonged to the government, in the same manner as any other tax dollars.

        Yet the Court reached a different decision, concluding in effect that Hobby Lobby could excuse itself from “the consent of the governed.” No, the Court did not use those words, but the Court’s decision had that effect.

        • gabe says

          Correct me if I am wrong here BUT:

          “But as we know, my tax dollars are not mine; they belong to the government. Likewise, the money Hobby Lobby spent on health insurance was not Hobby Lobby’s; it belonged to the government, in the same manner as any other tax dollars. ”

          — since when did a private company’s expenditures for employee benefits BECOME TAX dollars and when did it become the governments.

          Nobody’s argument would have more force were the government to have DECREED that all companies would simply pay a TAX equal to the cost of healthcare coverage and that this money would be pooled together, ultimately to provide coverage for Hobby’s employees. That would be a tax; in the present instance this does not appear to be the case. As part of its benefit package, Hobby provides monies AND secures healthcare coverage directly for its employees.

          You betray your underlying thinking when you assert that these are GOVERNMENT DOLLARS. Are all dollars provided by an employer for benefits to now be deemed GOVERNMENT DOLLARS?

        • nobody.really says

          [S]ince when did a private company’s expenditures for employee benefits BECOME TAX dollars…?

          When the private company parts with the dollars to fulfill a government mandate–in this case, the “individual mandate”–just as the private company parts with other tax dollars.

          Are all dollars provided by an employer for benefits to now be deemed GOVERNMENT DOLLARS?

          No. Only those expended to fulfill a government mandate. Now, who knows, perhaps there are some mandates to which this principle does not apply. But in the case of the Obamacare individual mandate, the Supreme Court expressly upheld the practice as a legitimate exercise of Congress’s taxing power.

          Nobody’s argument would have more force were the government to have DECREED that all companies would simply pay a TAX equal to the cost of healthcare coverage and that this money would be pooled together, ultimately to provide coverage for Hobby’s employees. That would be a tax….

          Indeed it would. And how would such a policy differ from the actual Obamacare policy—with respect to “consent of the governed”? It would offer governed people less control over how the dollars get spent, not more. So if ever government were to vindicate a person’s right to object to paying taxes, it should be under the former situation. Yet courts have repeatedly rejected such arguments, for obvious practical reasons: You can’t run a government with everyone exercising an individual veto. (That was Scalia’s conclusion in writing the majority opinion in Employment Division v. Smith.)

          But in the Hobby Lobby decision, the Court held that people could exercise such individual vetoes—not because government was excessively prescriptive, but because government was insufficiently prescriptive. As you said, if government had simply taxed people and made all the decisions centrally, no one would have been able to mount a successful objection based on religious/contentious objections. It’s only because government gave people more discretion than was legally required for an exercise of the taxing power that Hobby Lobby was able to claim that government had failed to grant enough discretion.

          • gabe says

            Hey!

            Interesting arguments, indeed. Still, I cannot see my way to accepting that private dollars become (even de facto) government dollars in this case.

            And, yep, it is curiously funny how the added discretion (such as YOU would define it) actually causes the controversy. I guess we will all have to hope that next time the Guvmnt simply DICTATES that there be “no choice”

            oops, how will that work our for all those who espouse CHOICE?

            take care
            gabe

          • nobody.really says

            I guess we will all have to hope that next time the Guvmnt simply DICTATES that there be “no choice”….

            This is the irony of the Hobby Lobby decision: It punishes policy designers for trying to intrude upon autonomy the least, and rewards policy designers for intruding on autonomy to the maximum extent–all in the name of defending a dissenter’s religious objections.

            So consider education: I like vouchers. But every time we spend spend public dollars, I want government say precisely what we’re buying, to guard against creating a slush fund. So I’d expect some minimum standards. Which will provide people with the opportunity to say that some aspect of those minimum standards violate their religious sensibilities. Which will undermine policy-makers interest in doing vouchers, leaving us to revert back to state-run schools as the primary vehicle for providing education.

            The REAL remedy is not to make government centralize all decision-making, but to reverse the decision the Hobby Lobby decision.

          • gabe says

            Nobody:

            For Gawds sake, Edith, will you get off this HOBBY HORSE?

            It is amazing how one can argue that eliminating the vast number of choices previously available in the open health insurance marketplace and providing the citizen consumer with a substantially reduced number of such insurance options, to include MANDATORY REQUIREMENTS for coverage one may never desire or that they object to, that the *guvmnt* is therefore providing the consumer with CHOICE!!!! This is specious. It also conveniently leaves out the other COMPELLED CHOICE that the guvmnt offers – mandatory coverage or a fine.
            A robber approaching me with a rather large club may also be said to offer a choice when he remarks: “Your money or your life?” Doubtless, this is a choice many of us would seek to avoid.

            Ultimately, your present argument betrays the underlying predicate of your often stated position. The guvmnt OUGHT NOT to provide choices but should simply mandate it’s preference as it would appear to your mind that choice (except, of course, in matters of abortion) is something that the simple common citizen cannot handle. Nope, only the experts in the FAS are suitable equipped to manage choice.

  2. Mongo Mere Pawn says

    You’re half right. The Progressive Left rejects the very notion of “We, the People” because they reject the underlying constitutional provision for a government accountable to the people. The Constitution is an accountability document. The purpose of Separation of Powers and Checks and Balances is to insure that the federal government never does anything that a majority of the people don’t want. The Bill of Rights held majorities accountable by withdrawing federal authority over certain inalienable rights.
    Unfortunately, the Progressive Left, which includes both Democrats and Republicans, has, over time, created a political class that has transferred the authority of the people to an unaccountable and ever growing federal bureaucracy, peopled by the political class, and backstopped by an equally unaccountable federal judiciary.
    What you have seen in the Tea Party and Trump phenomena are attempts by at least half the country to return to the constitutional accountability designed by the Founders. So half are content to be governed by the political class and half demand to govern themselves.

  3. Cloudbuster says

    I don’t think people have rejected the idea of “consent of the governed.” I think people still believe that the government should have the consent of the governed. I think that people feel that the government no longer has meaningfully obtained their consent. The government is so vast, so much of what it does is controlled by unelected bureaucrats and our connection with even the legislators closest to the citizens — the house of representatives — is so attenuated, that the average citizens feels that his consent, or lack of it is meaningless.

    This is the opposite of Rogers’ thesis. People long for a government that operates with their consent. They believe the current government no longer does.

  4. Brett Bellmore says

    Perhaps we’ve just jettisoned the belief that our “representatives” actually in any meaningful sense still represent us?

  5. John Wilkes says

    Mr Rogers,

    You distinguish between “consent of the governed” for the creation of government, and for individual policies, and then go on the focus on the nature of consent for individual policies. Fair enough – but for the consent principle to have any weight, surely the former consent is essential. The Founders certainly understood that.

    The problem is that the American Federal Government was created with limited powers for limited purposes, and it hasn’t kept within those limits. On the contrary, the overwhelming majority of laws passed by Congress are plainly outwith the limits set by the Constitution, enabled by a motivated reading in response to the political passions of a day long past, but which extension has been sanctified by the passage of time, stare decisis, and the sheer enormity of undoing the Leviathan.

    I accept that returning to the kind of Federal Government that the Constitution authorises is not, today, a politically realistic proposition. America is largely stuck with what history has delivered it, and only another Revolution could truly reverse the Great Society, let alone the New Deal (which is when the rot set in). But that does not change the fact that the Constitutionally set limits on federal power are not adhered to.

    Our modern regulatory state therefore rests, not upon “consent of the governed” but upon a usurpation of power. Its creation was neither authorised or planned at the constitutional moment, nor were the “people’s representatives” endowed with the power to extend federal power in this manner. A method for Amendment had been provided, but it was not used. This entirely vitiates the “representative consent”, even if that had ever been a defensible concept.

    The usual reaction to hearing this argument is to seek to dismiss it as academic, or silly, or anarchistic, and that is to be expected because its implications are to delegitimise the federal government as it stands. But set those considerations aside for a moment. I offer it now not for its own sake, but as an answer to your own analysis. At root, you argue and conclude that the common modern statement “I do not consent” is a break with the views of the Founders. For the reasons I have given, I disagree. I think they would have recognised it as entirely consistent with their view of representative consent. Those Revolutionaries, who were willing to throw off the shackles of Monarchy, would not have been blinded by the outward forms of Congressional lawmaking to treat laws made in defiance of the limits set upon Congress as being consented to by the people that set those limits. No, I think if any of them were transported through time to the present moment, the only thing they would have worried over was whether we, in the present day, still “suffer, while evils are sufferable”, or whether this “long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce [us] under absolute Despotism”.

  6. Devin Watkins says

    I disagree that the consent of the governed was understood to be exercised collectively at the founding. Instead, consent of the governed is based on hypothetical consent (or theoretical consent). This is the consent of every single individual in society, although it exists only in theory. The idea here is one of a state of nature theory. What can a rational person be presumed to consent to when entering society from a state of nature. There are some things (national defense, police, courts), that are for the benefit of all individuals over a state of nature. For these things, it can be presumed that a rational person would consent to being required to pay taxes for these things as it is for their own benefit. But some of the taxes imposed at the founding were understood by the Founders to not be for the benefit of the American colonists and therefore lacked their consent (even presumed or hypothetical consent). Or as Lysander Spooner “Our constitutions purport to be established by ‘the people,’ and, in theory, ‘all the people’ consent to such government as the constitutions authorize. But this consent of ‘the people’ exists only in theory.”

    If the consent of the legislature is the equivalent of the consent of the people that would mean they could change the very form of government itself. Revolution or peaceful change of government was understood to be a part of the power of the people. But it makes no sense to allow the legislature to change the limits of their own powers directly. That would make them the principle rather than the agent of the people.

    Now within the things that people can presume to have consented to, power is delegated from the people to the legislature. So keeping a standing army can be done with the consent of the legislature (as it is sometimes necessary and so the power has been delegated to the legislature by the people), but the colonial legislature did not consent to a standing army. Likewise, it is sometimes permissible for taxes to be raised and as such for the legislature to agree to raising taxes. Without the consent of the legislature, it would always be wrong. But this doesn’t mean that anything the legislature does has the consent of the people.

    In the First Congress, William Branch Giles said:
    “Under a just and equal Government, every individual is entitled to protection in the enjoyment of the whole product of his labor, except such portion of it as is necessary to enable Government to protect the rest; this is given only in consideration of the protection offered. In every bounty, exclusive right, or monopoly, Government violates the stipulation on her part; for by such a regulation, the product of one man’s labor is transferred to the use and enjoyment of another. The exercise of such a right on the part of Government can be justified on no other principle, than that the whole product of the labor of every individual is the real property of the Government, and may be distributed among the several parts of the community by governmental discretion; such a supposition would directly involve the idea, that every individual in the community is merely a slave and bondman to the Government, who , although he may labor, is not to expect protection in the product of his labor. An authority given to any government to exercise such a principle, would lead to a complete system of tyranny”

  7. Mike Mahoney says

    Often times what passes for consent of the majority is an usurpation of a previous supermajority. E.g. As one commentor offers, taxes for education is an area many oppose but is water under the bridge. Yet a supermajority had by omission decided not to fund education with taxes.

  8. CBI says

    Cloudbuster: This is the opposite of Rogers’ thesis. People long for a government that operates with their consent. They believe the current government no longer does.

    I would add two things. One in that federalism aids in this consent, by distributing legislative power among areas where informed consent is more likely to be possible. (E.g, building restrictions distributed to local level instead of federal level). Two, a protection of human and civil rights is also necessary: “the people” should not be able to deny an adult citizen a natural right (e.g., freedom of expression) without cause (e.g, conviction of major crime).

  9. gabe says

    “Popular rhetoric evolved as well. Jumping another century, it becomes common for Americans on both the Left and the Right to speak as the ruled being governed by the rulers. It is common on the Right, for example, to distinguish between “true” charity – which is voluntarily given by individuals – and government welfare, which is coerced. This is a long way from the notion of taxes being gifts of the people, as consented to through their representatives. And libertarian scholar Randy Barnett rejects outright any claim of the “consent of the governed” outside of actual, unanimous, individual assent. ”

    For a bright fellow, Barnett can be surprisingly silly. First, there is of course the notion that consent may be given by the People both individually and as a corporate entity. General theory is that IF a majority of *individuals* provide consent, then CORPORATELY consent is deemed unanimous. this is, however, a misnomer as the “corporate” entity is but one entity, talk of unanimity is spurious. It is simply an either / or proposition. Correspondingly, the Legislative is also subject to the same either / or mechanism once Legislation has been voted upon.
    Unless, of course, one wishes to emulate the 18th (/) or 19th century Polish Legislature which required ACTUAL unanimity to pass legislation. surely, Barnett is aware of this Polish folly as it would seem to represent the anticipated outcome of Barnetts’ arguments against consent of the governed.

    More importantly, the inability or unwillingness of some to recognize that “consent of the governed” is / must be reducible to majoritarian considerations (excepting those specific supermajoritarian requirements) may cause us to lose sight of the continued “implied consent” still present within our polity. Doubtless, as nobody. really comments there are various factions who claim to not have consented to school taxes or war taxes, etc. This is will always be the case as unanimity is neither possible NOR required (unless, of course, we wish to follow the fate of 19th century Poland). indeed it is counter to “consent of the governed” BECAUSE it is impossible to achieve. In short, it is the HECKLERS VETO writ large upon the political landscape.

    Moreover, talk of unanimity AND even talk of “slim” majorities obscures the fact that, at root, there is still to be found present in the people, as both Mr Rogers and Mr Wilkes assert, “consent for the formation (and continuance) of this republican government. Debate / disagreement over specific policy prescriptions does not, or ought not, call into question the fundamental agreement on the *nature* of the government.

    Admittedly, it is, at times, difficult to not conflate policy disagreements with constitutional (constituent law) arrangements especially when the dissenting voices cry out incessantly against the current statutory order; and, yes, there are some who rail against the constitutional order – but in insufficient numbers to justify a claim that the “consent of the governed” for that order is no longer to be had.

    Mr. Wilkes has, in fact, addressed the underlying issue. It is not so much that the People do not believe, NOR DESIRE, governance by consent of the governed, but rather that the governance they are now “blessed with” is of a scale, of a breadth and a magnitude that defies its delegated bounds. It is in this area that we may rightly say that “consent of the governed” is, and properly so, being questioned.

    As government assumed an ever greater variety of *functions*, as it penetrated into every nook and cranny of civil association, it outstripped the limits that consenting citizens had outlined for the government. As it then transferred certain Legislative Rulemaking powers to un-elected Legions of *experts*, it effectively transformed governance in this Republic. No longer would the People via their Representatives “direct” (loosely, of course) the course of the nation and its policies; rather, some dedicated number of “annointed” experts would determine what was proper, what was good, and who would pay and how they would pay. Though the Federal Adminstrative State (FAS), and its State level subdivisions, may have many millions of employees, their numbers pale in comparison to the number of citizens affected by their edicts.

    It is truly here that we find a JUSTIFIABLE concern over “consent of the governed.”
    In short, as the FAS increased it’s functions, it increased it’s reach – both in terms of policy prescriptions susceptible to bureaucratic manipulation and in the extent of it’s “interactions” with the People in their civil associations.
    I suspect that much of the current discontent is to be found in these *interactions.*

  10. Scott Amorian says

    Put simply, we’ve shifted away from the idea of representative (republican) government and towards pure democratic government.

    Pure democratic government takes power from the voters and puts it more firmly into the hands of social engineers.

    Accountability is necessary, but the accountability has to remain directed towards the represented citizens. When accountability is to the most wealthy and politically powerful, we become a democratic oligarchy.

    The trick to fixing the problem is to remove the mechanisms of accountability from being directed towards the most wealthy and politically powerful, and strengthen the mechanisms tying accountability back to the represented, and do so without creating more excessive democracy. Excessive democracy will put us right back where we started.

  11. brad says

    To second another commenter’s point: people feel that there is not a meaningful consent of the governed.

    Consider: at the time of the Framing, there was around 1 Representative for 30,000 people. And still one of the complaints against the new Constitution was that there was not a good enough representation.

    Nowadays, the ratio is around 1 Representative to 710,000 represented.

    • nobody.really says

      It’s a fair point: As any organization grows, the sense of personal connection attenuates. But I suspect that this sense pretty much reaches the breaking point at about 200 people; after that, we’re just strangers working in a common enterprise.

      What difference does it make how many people a representative represents? As a practical matter, your capacity to communicate with your representative today as VASTLY greater today than it was in 1800. It used to take representatives weeks to travel from their homes to assume their posts in Washington DC–and it would take their constituents the same length of time. Today every citizen of Hawaii has easier access to DC than those people had–assuming they feel the need to travel in person. They can also phone, e-mail, or Skype.

      So I’m not persuaded that this representative/constituent ratio matters as much as we might initially think.

  12. N.D. says

    Regarding Hobby Lobby:

    Although it is true that Griswold v. Connecticut exists, Griswold in no way, shape, or form sets precedent for permitting the State to force any person to accept a moral claim that contraception serves The Common Good and thus the use of contraception must be condoned and affirmed. Nor can such a claim be found in tax law, including in reference to either The Health Care Act and thus it’s mandate that was ruled to be, in essence, a tax, or the addition to The Health Care Mandate of a Contraception Mandate, by an Administration Agency, changing both the spirit and the letter of the law, that included an obscene fine that was a gross violation of the principle of proportionality, placed on those employers who desired to provide their employees with Health Care Insurance sans contraception coverage versus those who desired not to provide any Health Care Insurance at all. This obscene fine, because it is such a gross violation of the principle of proportionality can only be construed to be a means to “influence the recipient” of said fine into violating a tenet of their Faith and/or morals. The Contraception Mandate is a violation of the First and Eighth Amendments of The Constitution of The United States of America, and for the first time, uses a form of bribery in the distribution of contraception.

    Regarding the essence of personhood:

    Regardless of one’s race/ancestry, speciation occurs at the moment of conception, thus from the moment of conception, every son or daughter of a human person, regardless of race/ancestry, is a member of the human race. Due Process is binding on all persons, thus slavery was unjustly justified, by both the consent of the people and those who governed, based upon an error in both substantive and procedural due process law.

  13. N.D. says

    No doubt, Salvation History has revealed that whenever we have rendered onto Caesar, what Has Always belonged to God, we have become participants in a ” cruel, unreasonable, or arbitrary use of power/control”, thus it is only logical to assume that a nation that becomes a nation under cruel and oppressive government, is a Nation that is not, or is no longer, One Nation, Under God, and thus Indivisible with Liberty and Justice for all.

    Only The Truth of Love can set us free.

    God Save us from ourselves!

  14. EK says

    Another very shallow analysis. In Anglo-American history, the issue of taxation without representation began in earnest with the “Five Knights’ Case” (Darnell’s Case) in 1627, wherein Charles I had extract taxes in the form of “ship money” and “forced loans” without the consent of Parliament. This resulted in the Petition of Right (1628), and, not coincidently, the creation of the Massachusetts Bay Company.

    The first instance of the citizens themselves raising this issue I know of was in the Massachusetts Bay in 1634-5 when the Bay Colony’s magistrates (the Governor and his Assistants) summarily assessed the towns £5 each for the construction of a stockade in Newtown (Cambridge). Led by the town of Watertown, the towns objected and insisted that all taxes had to be approved by a majority of their elected deputies to the Great and General Court.

    The idea of the “consent of governed” in its modern form seems to have had its origins in the famous exchange between the Leveller Col. Thomas Rainborowe (within the year, Rainborowe would both become John Winthrop’s brother-in-law and be assassinated either by agents of Charles I or by agents of Oliver Cromwell). At the Putney Debates in the Fall of 1647, the delegates to the Army Council of the New Model Army debated the form of the republic (commonwealth) to be created after the defeat of the royalists. Rainborowe asserted that no man (“the least hee [sic.] in England”) could rightly be bound to any government that he had not assented to. His opposite in the exchange, Commissary General Henry Ireton (Cromwell’s son-in-law) generally agreed but argued that the franchise to vote for delegates to Parliament should be limited to men of some property and that only the consent of enfranchised voters, expressed through their elected representatives, was required.

Trackbacks

  1. […] Americans No Longer Believe in the “Consent of the Governed” Way back at the founding era, Americans took seriously the idea of the “consent of the governed.” As Greg Weiner noted recently, and as I’ve discussed elsewhere, this consent is exercised collectively, either in aggregating individuals’ votes or through voter representatives. But Americans at the Founding took seriously the idea that their consent could be conferred by their representatives. This belief has changed in the intervening couple of hundred years. On both left and right, Americans now talk about taxes being forced on them to pay for things for which they disapprove, even though their respective legislatures adopted the taxes. I doubt many Americans today seriously believe that they’ve consented to most of the laws and taxes that their legislatures adopt. What changed? […]

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