The Consent of the Governed

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.