What Is Consent? A Reply to James R. Rogers

James R. Rogers contended in his piece, “Americans No Longer Believe in the ‘Consent of the Governed,’” that as a people we no longer believe in the consent of the governed, nor in the foundations of government noted in the Declaration of Independence.

The last general election seem to contradict those claims.

The most recent electoral contest was an expression of the people asserting their sovereignty.  As Julie Ponzi pointed out, there is a difference between a people who tolerate the current state of politics, and the boundaries they set when they believe their tolerance has been taken for granted.  If the people did not believe in consent, or the consent of the governed, they would not have showed up to the polls in record numbers.  The people essentially bided their time until they had a candidate (in Donald J. Trump) to combat the oligarchical drift of the country.  Amongst all this it seems we should at least remind ourselves that those who choose not to participate politically may be happy with the current state of affairs.  John Locke calls this tacit consent.  At any rate, to claim the people do not take seriously their consent is mistaken.

Rogers also contends that “the Declaration also asserts the need for consent to specific policies.”   Far from declaring that the people should consent to specific policies in the list of grievances, the Founders provided the most egregious violations of natural rights.  In other words, the King had violated inalienable individual rights of the colonists by imposing his will on them.  There is no evidence from the Declaration that the people were meant to formally accept or reject specific policies in the form of a plebiscite.  As Publius made clear, it was the job of our representatives to deliberate on our behalf:  “The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs.”

While citizens may disagree with a specific policy, it is a conflation to suggest that disagreement means a rejection of the ground of consent.  This alleged rejection leads Rogers to make this claim:

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.

The Founders differed over specific policies.  However, their debate was over the means, not the ends of government.  They believed in general that taxation should not be burdensome, and as low as possible, in normal circumstances.  Thomas Jefferson believed that taxes should be “light.”  He repeated such a desire in his First Annual Message.  Part of the reason for this was not simply because it benefitted the consumer, but also because it limited government.  A limited government meant one that better secures, rather than violates, rights.  Alexander Hamilton believed that most people had an aversion to high taxes.  Hamilton’s nemesis, Albert Gallatin—the longest serving Secretary of the Treasury—wanted low taxes and low debt.  And let us not forget that the power to tax is the power to destroy.  Generally speaking, the Founders believed low taxation was more conducive for the public good.

All of this begs the question of what the Founders meant by consent?  They certainly did not affirm all acts of consent.  Consent does not occur in a vacuum.  Depending on the circumstances, a republic may deliberate the merits for a higher tax—like in times of war. The process of deliberating is the rational pathway of our consent becoming enlightened.

As Harry V. Jaffa noted:  “Sovereignty, then, has its ground in the natural right to rule oneself that every human being possesses. Sovereignty in the political sense—what we ordinarily call sovereignty—arises when men transfer their right to rule themselves to a civil society, which can do for them what they cannot do for themselves.”  Jaffa further notes that, “Natural equality leads to the social contract which leads to majority rule.  But majority rule is the means to implement the equal rights of all: all who have consented to be fellow citizens, and therefore have consented to majority rule.”  The Union is a political one in which “We the People” are united together by various commonalities, including a belief in the rights of man.

The foundation of free government is enlightened consent.  The Founders believed that the republic depended on a people who were not ignorant, and who developed a sense of reasonableness.  Publius engages in a reasonable project of deliberation with the citizens.  He does not exclude enlightened consent because he is more concerned with the potential development of faction.  In fact, the remedy for faction is the reasonable sense of the community.  Federalist #10 is dedicated to that end.

The preface to the Federalist Papers explains that they were written with a “respect” for public opinion.  This theme is repeated in Federalist #1 where the people are called upon to deliberate over the nature of the union.  Publius endeavored to persuade and appeal to the reason of the public for their enlightened consent.  We cannot but draw that conclusion from reading all 85 papers as was intended.

Rogers concludes that consent of the governed has been “jettisoned.”  However, consent of the governed is alive and well.  The election of Trump and the reasonable demands his voters placed upon him—draining the swamp, rolling back regulations, shrinking the administrative state, providing for a strong defense, restructuring taxes and paying off the debt, etc..—squarely affirms what the Founders meant by the exercise of the consent of the governed.

Erik Root

Erik Root is a writer living in North Carolina.

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  1. gabe says

    Let me admit of a fear.

    If the citizenry continues to feel that their *consent* in the Madisonian sense, i.e., public opinion, is being ignored, it may ultimately result in the people, first via a frustration – apathy dynamic then emotional surrender, simply abandoning any vestigial belief in consent. From there we move on to violence or dissolution.

  2. nobody.really says

    James R. Rogers contended in his piece, “Americans No Longer Believe in the ‘Consent of the Governed,’” that as a people we no longer believe in the consent of the governed, nor in the foundations of government noted in the Declaration of Independence.

    The last general election seem to contradict those claims.

    The most recent electoral contest was an expression of the people asserting their sovereignty.

    I wasn’t persuaded by Rogers’s thesis, either. But nor am I wowed by this one. Couldn’t we make the same statement about EVERY election? Isn’t EVERY election an expression of the people asserting their sovereignty?

    Strip away the fife and drum and three-cornered hats, this argument boils down to this: Root (and Rogers?) didn’t like Obama’s policies; ergo, Obama’s policies didn’t reflect “the people.” Root does like Trump’s policies; ergo, those policies must reflect “the people.”

    Last I checked, there were more than 300 million “people” in the US. As far as I can tell, they all differ. So anything we might attempt to say about “the people” reflects an abstraction. Unless you’ve got some data to back up a claim, you really don’t have a claim.

    So here’s some data: Donald Trump received 45.98% of the popular vote—less than his opponent. Thus, I can’t imagine how Trump or his polices could possibly be regarded as a more authentic expression of the will of “the people” then most prior presidents and policies—unless the authors intend to say that some voters are more equal than others. And that, ultimately, seems to be the burden of these essays: some voters count as part of “the people,” while others don’t.

  3. nobody.really says

    Does the “consent of the governed” include Medicaid expansion—or contraction?

    Created in 1965, Medicaid is a state-federal partnership that for most of its history provided health care primarily for low-income children, seniors, and disabled adults. Nearly 73 million Americans are on Medicaid or the related Children’s Health Insurance Program (CHIP). The programs cost $532 billion in fiscal 2015, with the federal government shouldering 63% of the bill and states paying 37%.

    Medicaid has never enjoyed as much political stability as Medicare, the federal health program for seniors. Most enrollees are low-income children, pregnant women, parents, the disabled and the elderly. While Democrats say the program is a vital part of the safety net, Republicans have long criticized it as being bloated, inefficient, rife with fraud—in short, a program for minorities. And so they’ve proposed to eliminate it, or at least limit the federal government’s financial responsibility by converting the program into a block grant to the states.

    But under Obamacare, low-income adults with incomes of up to 138% of the poverty line — $16,400 for a single person — were allowed to sign up in states that opted to expand their Medicaid programs. So far, 31 states, plus the District of Columbia, have done so, adding about 15.7 million more people to the rolls since late 2013, just before the provision took effect. (This figure includes both those newly eligible under expansion and those who always met the criteria.) Even Mike Pence, while governor of Indiana, expanded Medicaid enrollment under Obamacare.

    And now when Republican congressmen propose cutting Medicaid, they discover something new: Their newly-powerful white working-class constituents don’t want to see it cut. Thanks to Obamacare, a program that was for minorities has been magically transformed into a program for “the people.” Go figure.

    • gabe says

      Perhaps, we could have avoided all the distress over O-care, if we had simply offered Medicaid availability to all who so CHOSE it, rather than imposing the various Obamacare mandates on coverages, “Cadillac vs Yugo” health plans, etc WHILE simultaneously raising both deductible and cost levels.

      Hey, maybe that would have had a better chance of garnering the publics *consent*?

      • nobody.really says

        Perhaps, we could have avoided all the distress over O-care, if we had simply offered Medicaid availability to all who so CHOSE it….

        Sounds good to me. That’s called “single payer,” and was Obama’s initial proposal. The Republicans blocked it.

        • gabe says

          Notice that I employed the word “”CHOSE” – that is not quite the same as single payer nor does it come with all the *statist* encumbrances that you and Obama would prefer.

          More on the lines of “catastrophic” coverage under Medicaid.

  4. says

    I am surprised to see Erik Root dispute James Rogers’ contention that “the Declaration also asserts the need for consent to specific policies” in the list of grievances.

    The Declaration’s list of grievances states that the colonies have been subjected to “a jurisdiction foreign to our constitution [Parliament], and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation,” and then gives a list of such acts, including “imposing Taxes on us without our Consent.”

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