GoverningByConsent

In A New Foundation for Liberty I discussed the idea of governing by the consent of the people, and the manner in which technological advancements have made possible advancements in liberty as well. In this article, I discuss the origins of modern government and the theory of the social contract, as implemented in the American revolution...

In the beginning, there was King George. This King ruled our land from across the sea, remote from the people of our Nation, insensitive to our pleas. Though the people of the English kingdom had secured rights for themselves in the Magna Carta and in a long legal tradition, the traditional rights of Englishmen were abrogated in the United States.

We were a nation of malcontents and criminals, rebels and religious refugees, explorers and adventurers. We came to America to start a new life, free of the kings and nobles of Europe. Yet once we arrived, we found that the long hand of the King could reach across the very ocean. From taxation to confiscation, the oppression continued, and our shouts of protest went unheard. Finally, we withdrew our consent from the government of King George, formed our own governments of elected representatives, and declared our independence.

Our first attempt to unite the citizens of 13 separate States came in the Articles of Confederation. It quickly proved a compromise too far to the side of liberty; the national government formed under the Articles was powerless and incapable of fulfilling its responsibilities. Therefore we convened a new Constitutional Convention, with the intent to strike a new compromise.

In order to prevent our new government from becoming worse than the problem it was created to solve, the representatives of the States implemented a Constitutional Republic. They wrote a Constitution explicitly spelling out the powers of government and the rights of the people; they instituted rules for changing that document to adapt to changing times, while ensuring that each individual change would first require overwhelming support; they then wrote rules by which elected representatives could manage the details. The representatives voted to accept the document, which was then passed to the governments of the several States for ratification. And in due course, it was ratified, and our "more perfect Union" was formed.

But not everyone agreed. The contract was written and signed by representatives of the States and ratified by Representatives of the People in each state, not by the whole body of the people. While any man could view the contract, and understand its terms, no man could refuse it once ratified. Upon those who would have refused it, then, that government was imposed by force. The greatest political thinkers of their age could find no solution to this, and perhaps none existed. Certainly no government formed from an existing territory with an existing population could hope to obtain universal consent to its rule.

Despite this, the system has worked fairly well in preserving both liberty and prosperity. Many of those who chose to reject the new government had the opportunity to leave the country. Those who chose to stay can be said to have consented, at least to some degree. But those who were brought to the United States as slaves had no such choice; those who lived in conquered or purchased terrorities faced the abandonment of their homes and property if they chose to depart. They were given a choice, but choosing to reject the new government carried a penalty of abandoning their friends, their homes, and their property -- perhaps even their family.

Once the Constitution was ratified, however, the situation improved. Even those who would have rejected the new order had their rights protected under the Constitution. They were granted the right to vote, so that they could retain a voice in their government, and the protections of law. The powers of the government were limited and enumerated, in accordance with the rights of the people, in the hopes of preventing abuse. And the effort was, for the most part, successful: after some initial incidents, those who did not consent were at least content to live under the established system.

But there was a force that the founding fathers forgot to account for: inertia. Over generations, people forget where the nation began, and accept the status quo so long as the least lip service is paid to the original document. People born under a government assume that the operations of that government are natural and normal; it requires a leap of imagination to realize that the government is wrong.

Most people never make that leap, because they are never asked to consider whether their government is legitimate. They are born; they are educated in government schools; they are granted the "right" to vote upon attaining adulthood; but they are never given the opportunity to evaluate their government, and choose whether they wish to live under its rules. Consent is assumed. Thus, with each generation, our government grows a little further.

But today, the combination of assumed consent and inertia has given us a government reaching far beyond its original conception. Where once the nature of our government was an active question in the minds of the people, it has become an assumption of legitimacy. The government does not ask for any form of affirmative consent to the social contract. Instead, government assumes that all those living within the nation's borders are bound by the social contract. Our government even taxes those who choose to leave their nation of birth, on the assumption that those people are merely evading taxes that they are obligated to pay.

The history of our own government tells us that the formula created by our founding fathers was insufficient. The Constitution of the United States outlined a government that has lasted for over 200 years while remaining relatively free, but the cracks in the system are showing, and total collapse cannot be far away. It is time for a new alternative, one that will address the flaws that have been identified.

In order to preserve liberty, government must satisfy several vital conditions.

• Government must have the affirmative consent of the populace to each and every law; otherwise the populace will ignore the law, and no amount of compulsive force will be sufficient to overcome their collective refusal to comply.
• Government must protect its citizens, while within its borders, from external threats (foreign nations).
• Government must protect the rights of its citizens from each other (crime).
• Government must have a mechanism to enforce binding agreements between citizens.
• Government must have a means to fund its operations.
• Government must be flexible enough to respond to a changing environment.
• Government must be static enough to resist changes that would abrogate the consent of the governed.

The assumption of consent is invalid. It is the same assumption made by tyrants; the assumption that consent is granted automatically by residency or citizenship, that the lack of armed revolt confers legitimacy.

In the 18th century, we had little choice: it would be impossible to secure unanimous consent to anything. That was then. To find out how a government can obtain unanimous consent from its citizens, read Obtaining Affirmative Consent.

In A New Foundation for Liberty I discussed the idea of governing by the consent of the people, and the manner in which technological advancements have made possible advancements in liberty as well. In The Consent of the Governed, I discuss the origins of modern government and the theory of the social contract, as implemented in the American revolution. In this article I discuss a method for establishing a government based on unanimous consent rather than coercion.

Let us began with a hypothetical island, population zero. Such an island needs no government. Add a single resident, however, and he becomes both citizen and government; there is no risk of dissent. Adding a second resident adds the potential for disagreement, however, and so that is where we begin to consider the problem of consent.

Suppose our first island resident owns the island. He can then decide whether to allow the second resident onto the island. For instance, he can specify terms, and agree to allow the second resident onto the island only if that second resident agrees to those terms. This mechanism obtains affirmative and informed consent from each new resident, with the terms set by the first resident. Even if the later residents buy part of the island from the first resident, they would still be bound by the terms of the original entrance agreement; the first resident has become a de-facto government, setting the terms of the social contract.

Suppose that his terms included the things we traditionally consider the realm of government: taxes on income, imports, and exports; assistance in enforcing the law against those who violate it; agreement to abide by the decisions of a legislative body in some form; agreement to pay fines or submit to imprisonment for certain crimes, if found guilty by a jury in a court of law. By that method we have obtained affirmative consent for each citizen living on the island to whatever form of government the original resident chooses to institute.

Such a government could be a tyranny as easily as a republic, though it might be harder to convince people to agree to live under the rules of a tyranny; the point is that this mechanism for establishing consent does not establish any particular form of government. The first step to a government of affirmative consent is to start from a blank slate, and permit only those who agree to be governed under the rules of the new government to enter the territory.

What about those who enter the territory without agreeing? In one sense they are outside the law; they have given no affirmative consent to the form of government in place. It would be ethically difficult to punish someone who has given no affirmative consent to the government in place (while modern governments do this routinely, it is the very problem we are attempting to resolve). Without their agreement they cannot be considered bound by the laws of the government; yet neither can they be allowed to harm others. .

One potential solution would be to specify that the legal protections of the social contract apply only to those who agree to that contract. Such a solution would put all uninvited "guests" outside the law, and subject to whatever the citizens felt was necessary. It conveniently deals with the problem of invading armies by making it legal for anyone to shoot back without fear of reprisal. But if applied to accidental visitors or those who are not truly malicious, it falls prey to the same problem of consent as normal government: how can a government based upon consent enforce its laws on those who do not consent to them?

The question of how citizens should behave towards non-citizens is easily included as part of the social contract. The obvious answer is to frame the laws set forth in the social contract as applying to people in general rather than exclusively to citizens. This will ensure that a resident can be punished, according to the terms they agreed to, if they break those terms with respect to a trespasser.

However, without having agreed to the conditions of residence on the island, such illegal residents would have no legal right to remain. They could thus be detained by the police or any property owner for trespassing and deported immediately; no trial necessary, unless they claimed to be a citizen. And, of course, if they did so claim, they would then be subject to the laws they had agreed to.

Children, however, are a more complex question. They are not settlers and they cannot be expected to provide affirmative consent until they reach an age appoximating adulthood. Neither can we practically deny them the protection and responsibilities of the legal system until that time. The United States government solves this problem with minor status; juveniles are considered under the care and authority of their parents until their majority, and their parents are generally responsible for ensuring that their children behave according to the rules of society -- which means paying the penalties for their children's crimes.

For the crimes typical of youth, that solution will apply on our hypothetical island just as well. The parents are responsible to the law, and the children are responsible for their parents. However, in some cases this principle is equally unjust; the parents should not be punished for a horrible crime committed by a near-adult child.

The solution is simple: the parents can escape punishment by choosing to disown the child. The child would then be given the opportunity to agree to the social contract and pay whatever penalties are specified by the law, or be deported as with any other unauthorized trespasser.

This procedure can be successfully applied to a child who has obtained adulthood. The child's parents disclaim responsibility for him or her, or the child proclaims his or her own independence from his family, and the child is given the opportunity to agree to the social contract or leave the island. By this means the consent of the child can be obtained when the child himself is ready, in his own judgement or the judgement of his parents. It neatly sidesteps the question of mental competence; such a matter is left to the parents to decide or the child to demand.

Clearly there remain corner cases in this framework (orphans, for example) that do not have a satisfactory resolution. Such cases are easily addressed by whatever legislature is in place.

Visitors could obtain permission to enter the country by agreeing to the social contract for the duration of their stay. Such temporary residents would be exempt from the requirements and privileges of full citizenship, such as military service or the vote, but would agree to obey the laws regarding the treatment of others.

If you're not sure why a government might wish to obtain unanimous consent from its citizens, read The Consent of the Governed and A New Foundation for Liberty. If you want to find out how a government could be implemented along these lines in a way that would maximize liberty, read Governing by Consent.

In The Consent of the Governed I explained why a Libertarian State might wish to obtain unanimous consent to the laws it seeks to enforce. In Obtaining Unanimous Consent I explained how this could be accomplished on a hypothetical deserted island, in a manner which could be applied to almost any form of government or territory; the only requirement is a blank slate within that territory (no other legitimate government authority, and no existing population). In this article I intend to explain what a government based on unanimous consent and libertarian principles might look like. This is a thought experiment rather than a specific proposal, so many areas are left vague. This is the nature of a libertarian government: limits are relatively few so that the processes are adaptable.

If a government intends to operate by consent, it needs some facility to know what its residents have agreed to on an individual basis, not merely what their representatives have agreed to. Computer technology has advanced sufficiently that this capability is now within our reach. It is now possible to build a secure system for registering contracts, a system that can ensure that signatures on those contracts cannot be faked or the terms of the contract changed (without mutual consent of the parties). I won't describe the technical aspects in detail; take it on faith that it can be done, and the technology to do so is publically available. Yes, there is a privacy tradeoff with this; I may write about that later.

So, assume that our government has the capability to record agreements between any two legal entities (a legal entitity is a citizen, a corporation, or the government). Assume it can do so for each individual citizen cheaply (much more so than a ballot referendum; more like mailing an agreement, and getting it back with a signature). Obviously the first agreement that will be recorded is the basic social contract; how can we structure that contract to support the maximum possible freedom while maintaining individual, affirmative consent?

The first element of the social contract is simple: new citizens must agree to all provisions of the social contract that all currently-existing citizens have already agreed to. This forms the core of the social contract: all provisions universally accepted become a requirement for all new citizens. Provisions that do not have universal acceptance are binding only upon those that agree to them, and new citizens need not agree to them in order to become citizens.

This core idea provides immense flexibility. The most basic elements of the social contract can be defined at the beginning of the nation, when only a few people need to agree. Those people have the opportunity to shape the legal system for those they hope to entice into their new nation. Yet, with so few people, if their terms are too onerous, no one will join.

Following the principle of liberty maximization, then, let us set down some basic principles for the initial contract (in simple terms):

• Thou shalt not murder, nor threaten murder.
• Thou shalt not steal, nor threaten theft.
• Thou shalt not injure, nor threaten to injure, any person, save in the defense of self or others against injury or murder.
• Thou shalt not interfere with the lawful actions of others, save to enforce the lawful judgement of a court.
• Thou shalt impose no obligation without the uncoerced consent of the obligated.
• Thou shalt abide by the lawful judgements of the courts, as rendered by a unanimous jury of 12 citizens selected at random, in accordance with the laws thou hast signed.
• The courts shall have the power, by unanimous vote of a jury, to nullify any contract deemed deceptive, or to which agreement was made under coercion or false pretenses.
• All contracts between private parties shall be subject to a yearly review by those parties, at which time any party may withdraw; but a penalty may be specify for the exercise of this clause.

This basic code of behavior covers, in broad terms, most of the serious crimes as understood by a modern nation, as well as securing an agreement to abide by the judgement of the courts. While this is not intended to be a working model, merely an example, there are simple subtleties to note:.

• "Murder" is distinct from "kill"; to kill accidentally, or in self defense, or in times of war, is not murder.
• "Steal" is distinct from "take property". If a citizen has agreed to a financial committment they refuse to follow, a court could enter a judgement ordering that goods or funds in the appropriate amount be seized, and the police could seize the goods or funds without violating the social contract. The offender in that case would have consented to the use of force, if necessary, to meet the obligations he voluntarily entered into.
• The prohibition against injury specifically includes the use of violence to enforce the law; the only exception is defense of self or others. Thus, a government agent has no power to do harm, only to enforce agreements without violence. Of course, if a citizen responds to an enforcement attempt with violence, it is just to respond in kind; and there are ample means available to apply force without inflicting injury.

Upon this foundation we can build the structures usually associated with government, and we can do it voluntarily. I will use the basic model of government provided by the United States Constitution, since it has worked reasonably well. So, with that understanding, consider a three-branch federal government (legislature, executive, and judicial) with regional subgovernments. The structure is the same as in the United States, but the purpose is subtly different.

The Executive Branch

• Nominate ambassadors and set foreign policy
• Administration of existing laws
• Administration of required infrastructure and personnel to implement laws
• Veto power over acts of the legislature
• Commander-in-chief of the military

The executive branch remains mostly the same, with the purpose being to administer the operations of government in general, to provide a figurehead for diplomatic purposes, and to operate as commander-in-chief of the military forces in wartime. As in the US, the head of the Executive Branch is the President, who has the power to sign a legislatively-passed law into effect (in other words, to set up necessary infrastructure; such laws are not binding on those who do not sign them) and to veto such laws subject to a 2/3rds override in the legislature. Elected by popular vote.

The Legislative Branch

• A single house of 100 members
• Declare war (with a 2/3rds majority)
• Overide Presidential vetos (with a 2/3rds majority)
• Propose laws by majority vote
• Ratify ambassadorial appointments
• Ratify treaties with foreign nations
• Issue subpeonas for investigative purposes

Unlike the traditional legislative role, legislatures in this form of government do not pass laws. Instead, they write proposed laws and pass them to the people, who choose to sign (or not to sign) as they wish. The primary distinction between a legislatively-passed law and a citizen initiative is that the legislatively-passed law could make use of government infrastructure; in particular, the executive branch (after the law is passed by the legislature and signed by the executive) can set up offices or other facilities to implement a law, whereas a citizen initiative would need to arrange its own infrastructure.

The legislature's role would be to initiate new laws for public signature and fine-tune the older laws. To create a new agency, for example, the legislature would write a law for public signature specifying the structure of the agency, any obligations that existed between the general public and that agency, and a funding mechanism. The executive would then set up that agency (according to the structure in the law) and the general public would have the opportunity to sign the law or refuse it. Only those citizens signing the law would be bound by the dictates of the agency, and only those signing would be obligated to provide funding. But based on the vote of the legislature, resources could be spent to establish the agency.

Ratification of ambassadorial appointments is straightforward; it does not confer upon the ambassador the power to make enforceable agreements. The ambassador is merely a negotiator. Similarly with ratification of treaties; even ratified treaties can be enforced only against those of the general public who sign the treaty themselves. As with proposed laws, however, the majority vote of the legislature is sufficient to set up infrastructure.

The Declaration of War serves a special function. As with other laws, it must be individually ratified before any individual can be bound by it; but the legislative declaration is sufficient to allow offensive action by the military or individual citizens without legal sanction.

Legislators are selected by contract, not by election; that is, individuals sign contracts stating that a particular person is their chosen representative. The 100 people with the most signed contracts at the start of each legislative session constitute the elected legislature for the duration of the session.

The Judicial Branch

The judicial branch revolves around the concept of a jury. Rather than judges interperting the law, the jury itself directs the trial by majority vote, with a lawyer of their own provided (at the cost of the court system) to advise on points of law. Prosecution and defense lawyers are provided by the parties, if desired, or the court system if not. Expert witnesses, if any are required, will be selected by the jury and paid equally by all parties. The relevant law for the trial is the agreements both parties have signed.

The result of the trial is a verdict. If the verdict is signed by all three parties, indicating an agreeable resolution, they are bound by the verdict and share court costs equally; if it is signed by one party and the jury, the non-signing party is responsible for all court costs; if the suit is withdrawn (eg, a settlement) then the party that brought the suit is responsible for costs. The appeals process is best designed by the legislature to match the real conditions of the chosen territory.

The primary benefit of this system is to place power in the hands of the jury, rather than the judge. Rather than laws being written for a judge to interpert and lawyers to twist, laws would be written for juries to read, understand, and apply.

Local Governments

Local governments are formed by the simplest possible means: collect a group of contiguous landowners and have them sign a contract, similar to a state Constitution, that defines the rules for that local government. If you want to expand the territory, get the landowners on your borders to agree to the contract. One of the rules of the contract should be that no one can sell land or rent a residence to anyone who does not, as part of the transaction, sign the local government contract.

Such a government would have no special power over visitors, but would have whatever powers the contract granted over residents that did not violate the foundation contract itself, for so long as the resident remained a resident. Those who desired could form a religious community, a Moslem enclave, a communist commune... whatever they desired and could sustain. Those subject to the government could free themselves from the agreement by moving their place of residence elsewhere, and if the government failed, then the contract could be dissolved by unanimous consent of the landowners.

What are the benefits of this form of government?

First and foremost, liberty. Unlike all previous forms of government, no one is coerced. All obligations incurred are voluntarily agreed to.

Second, inertia. The larger a government becomes, the more difficult it is to enact a universal law; the more universal laws there are, the harder it is for a new citizen to join. This turns the current balance of power on its head; under a representative system, the larger a government becomes, the more vulnerable to corruption and collectivism it is, because each individual has a smaller voice in the whole; under a system based on consent, each law is individually evaluated for the personal situation of each individual.

Because new citizens (including children of present citizens) are asked to evaluate and consent to the entire social contract, a system that does not work well will not grow. Consent to the system of government is not assumed, but granted only after sober reflection by a mature adult. The growth of malignancy is halted, as no one will consent to a hostile form of government; they will instead choose the best government under which to live. Choice, over coercion.

Third, efficiency. Anyone can write a "law" and circulate it for signatures. Good laws will succeed in the free market; poor ones will fail. Government services have a natural framework for competing privately-managed providers, creating competition within the government itself.

Fourth, honesty. The legislature has the power to propose, not the power to rule. There is relatively little advantage to expending effort on convincing (or bribing) a legislator; you have to convince each individual to agree before they are bound by anything you can get a legislator to pass. And if a corrupt actor manages to persuade a legislator to slip in a loophole or the like, people will stop signing the proposed contract once the loophole gets out.

Fifth, stability. Once a basic legal code is laid down, change is slow and gradual. Any new proposal will be operating within a pool of first-adopters long before the rest of society considers the proposal. If there are problems lurking within the proposal, they will become apparant as more people sign -- and that will slow adoption.

Sixth, adaptability. The executive and legislative branches allow for a rapid response to problems or threats as they appear; technology allows a new proposal to be written and proposed to the people very rapidly. Implementation of the proposal can begin at once for those who sign. Yet the rapidity of response is not coercive; those who prefer to sit on the sidelines can do so.

Seventh, diversity. Many different systems can be built on top of the same basic social contract. For any problem facing the nation, people can look at different communities and observe how each community dealt with the problem -- and whether the solution worked.

What are the potential problems?

Among many others, there's no bill of rights. We had that argument when we wrote the Constitution of the united States, so such a bill should probably be included in the foundational contracts of this government. However, that is a topic that I will address at a different time.

How can government be funded voluntarily?

Simply include a funding measure for basic operations in the founding document, of course. I have not done so because there are so many options, and which one you use depends on the specific situation in which your government needs to operate. However, one obvious source of funding is a registration fee for contracts that you wish enforced by the government, either a flat fee or based on the value of the contract. This mechanism ensures that those making the most use of the system are also contributing towards its upkeep.

Conclusion

This essay is designed to provide a basic insight into the organization of a theoretical government based on the principle of unanimous consent. Consider it a thought experiment; one that has time yet to evolve. Most likely, nothing will come of it. But just in case, if you like the idea, please leave an encouraging comment.

Through the history of mankind, we have endured many forms of government. Everything from tyranny (consent by lack of revolution) to democracy (consent by majority vote) has been tried, and many shades in between. The Libertarian principle of government is based on the concept of a necessary evil; there must be a government to protect the citizens in the ways that only concerted action and compulsive force can, but that compulsive force it itself evil; therefore the use of force is minimized to the extent that the government remains able to carry out its functions.

Advocates of anarchy propose complete individual freedom with no central authority, but history tells us that anarchy is unstable; government will arise from within or be imposed from without. The Libertarian goal must then be to minimize government without surrendering to anarchy; sufficient power must be concentrated in the government to repel foreign invaders and protect the rights of the citizens from each other, but that power must be strictly limited to prevent tyranny.

The history of America is the history of a Libertarian government hamstrung by the inability to obtain true consent from its citizens. Without the resources to obtain affirmative consent to the Constitution from every citizen, our founding fathers were forced to elect representatives as proxies, and employ the strategy of federalism to retain the local flexibility and accountability necessary for a government to respect the wishes of the people. The use of representatives elected by majority vote, subordinate to the law, restrained in their powers by a written Constitution, and separated into smaller, nearly-autonomous regions directly responsible to their citizens was a tremendous leap forward for Liberty. But inevitably, there were those who did not agree to the new social contract.

Some were conquered. Some were never granted the right to vote. Some owned no property. Some were enslaved. Some were women. Some were children. And some were simply outvoted. But they all had a new government imposed upon them against their will, and were faced with a choice: leave your home and return to lands which you prefer, under a government which you prefer, or submit to our government. In those days, it was still possible to leave your nation and join another. Today, it is much more difficult.

But now, with computer and communication technology our forefathers could never have dreamed of, we can do better. Indeed, we must do better. There is no frontier left; no place where the malcontents can flee to in order to escape an oppressive government. The federal government of the United States has absorbed the powers of the states into itself, turning what were once very nearly separate sovereign nations into mere arms of a many-tentacled beast. It is no longer possible to choose the government you live under by moving from state to state. The long arm of the Federal government will reach you throughout the states, and even into the other nations upon the earth, should you attempt to escape (without paying your taxes).

We must therefore respect rights of the individual far more than in the past, where the frontiers offered the opportunity to escape and begin anew. We can now implement a government that functions on the principle of affirmative consent, and therefore, we must: it is the least intrusive government still capable of protecting its citizens. The Leviathon of the United States has abandoned the remnants of its Libertarian foundation, and those who yearn for freedom must begin anew.

To understand the Libertarian principle of government as applied in the American Revolution, read The Consent of the Governed. To understand how a government based on affirmative consent can be established, read Obtaining Unanimous Consent. And to understand how such a government might function in a liberty-maximizing fashion, read Governing by Consent.