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?

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.