Children, Consent, and Liberalism

Liberalism, both classical and modern, has always had difficulty fitting children into its consent-based theories. In modern consent theories, “consent” is a theoretical fiction, one used as a proxy for “reasonableness.” Thus John Rawls’ veil of ignorance behind which deracinated humans choose principles of justice. Or Buchanan and Tullock’s original position in which individuals choose a constitution uncertain of what their endowments will be in the post-constitution world.

Earlier social contract theorists used the state of nature in a similar fashion. They used the idea not so much as a description of some sort of real original position, but as a useful fiction to help themselves and their readers think through reasonable political institutions, meaning institutions they would identify as optimal due to abstract considerations rather than choose them because those institutions would protect their already vested interests. It’s unclear whether “consent” ever referred to something real.

But when the American Declaration of Independence affirms that the “just powers” of government derive from the “consent of the governed,” it’s not clear, however the phrase be understood, that there is not supposed to be empirically observable consent of one form or another. Thus, the actual nature of consent, and who can—and cannot—consent, and what is consented to, becomes a pivotal issue in the American political tradition.

In her book, By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority, historian Holly Brewer provides an absolutely fascinating account of the change in Anglo-American relationships—legal, political, ecclesial, and social—from sounding in status to sounding in consent. She describes this transition through the lens of historically evolving views of the ability of children to consent in these different spheres. Brewer does nothing less than trace the evolution of the central postulate of liberalism from theory to practice.

The scope of this legal and social transformation is breathtaking. Brewer provides evidence of child “consent” throughout the Anglo-American world of the 16th and 17th centuries. Children themselves could contract, and so legally oblige themselves, to marriage as young as seven:

Four-year-olds could make wills to give away their goods and chattels. Children of any age could bind themselves into apprenticeships. Eight-year-olds could be hanged for arson or any other felony. Teenagers were routinely elected to Parliament.

And the list of adult responsibilities that children could undertake goes on.

The issue was not limited to law and government. Brewer devotes a chapter to a heated debate in Protestant ecclesiology, the argument over infant baptism. (The alternative to infant baptism was limiting baptism to individuals who have reached some ill-defined age of accountability.) It wasn’t a simple dualism, however. The debate even roiled the circles of those who continued to practice infant baptism but could not agree on its import: What did baptism mean for an infant? Which infants could be baptized—those whose parents were believers, or could believing grandparents qualify an infant for baptism? What obligations, if any, did undergoing the rite as an infant imply when the child matured?

Brewer shows the interconnection of republican political theory with changing conceptions of church membership and ecclesiology, and she demonstrates that “consent” was the byword connecting debates in both civil and ecclesiastical spheres.

Understandably given the distant in time of the documents with which she works, Brewer concedes her “study does not show prevalence, which is nearly impossible to discern.” Rather, “it sketches the big picture—establishing that assumptions were very different from our own, and that we, whether social or political historians, should not take our own norms for granted.” Getting a glimpse into a mindset alien to today’s liberalism is the treat this volume offers. Brewer’s work underscores just how fundamentally liberal all Americans are today, whether they identify as liberal or conservative, religious or not. “Consent” is the god to whom all Americans genuflect today.

Fetching as well is the thread Brewer recurs to through her book tracing ironic implications of the reorientation of so much of life around the notion of mature consent. Not least, she points out children were systematically infantilized by the decisional shift from the authority of status to the authority of consent. The move to “consent” took choice away from children, whether they were capable of exercising mature consent or not. The result was that their lives were placed firmly in the hands of others. To be sure, the reader can ask whether many children were truly exercising their own agency when, say, contracting a marriage at age eight, or whether parents or guardians were already exercising real agency, binding children to future courses of action under the guise of the children’s decision.

Moreover, by reorienting the authority for making a binding decision from status to mature consent, Brewer argues the debate over children carried metaphorical resonances into other relationships. By analogizing women and slaves to “children” in their ostensible inability to provide mature consent, the changing legal status of children’s decisions provided a rhetorical framework used to justify deprivation of choice to infantilized adults.

I do have a quibble or two, as well as thoughts on the implications of Brewer’s argument for liberalism today. I’ll take those up in a subsequent post or two.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on February 06, 2019 at 11:53:05 am

"“Consent” is the god to whom all Americans genuflect today."

Indeed, this is clearly true; so much so that recently some "consent-addled" feminist professor encouraged us to seek the "consent" of infants PRIOR to changing their diapers.

Not to be outdone, an Ivy league academic later asserted that adult-child sexual encounters are to be accepted provided the young child consents. It was unclear whether this devotee of Smith and Locke was a member of NAMBLA.

Well, I no longer consent to having to hear this idiocy from the elite, highly *trained* minds of the university.

read full comment
Image of gabe
on February 06, 2019 at 14:34:20 pm

It is hard to know where to start. The idea that true Liberty cannot exist unless children have the same legal rights as adults does not come from the wisdom of our ancestors, but from foolish people who wish to vindicate their conscience.

Well, as I understand Liberty--and by that I mean the sacred, inalienable right given by God to every individual human being in equal measure--it is not simply freedom to do as you please without regard to the consequences. The American Revolution was not based on the foolish ideas of French philosophes, but on a long and winding tradition I like to call "Judeo-Christian Natural Law". Because, interestingly, there is such a thing.

The Founders did not define Liberty as freedom from any kind of control. To them, it meant "freedom from external control". Their definition of Liberty is "Freedom and Independence", independence meaning "self-control, self-government, and/or self-reliance & self-restraint".

And if you think you are looking at the Golden Rule, it is no accident. John Adams defined Liberty as "a power to do as we would be done by". This Rule is considered the summation of the Laws of God and Nature. His whole generation shared that view. Maybe there were individuals here and there who did not agree, but if they wanted to be accepted in society they had to act as if they did.

That is because Liberty is more about creating a society where, if individuals execercise the virtues that define it, they will automatically be protecting the rights and dignity of others, and if they reciprocate, everyone's rights will be secured. No government can guarantee that level of Liberty.

George Bernard Shaw once said, "Liberty means responsibility. That is why most men dread it." The libertarian view of Liberty no longer bears any resemblance to the Founders' views. Children need guidance and training to learn how to exercise self-reliance and self-restraint, otherwise they will lead very unhappy lives and so will everyone around them.

Children need protection from sexual predators, a class of criminal that specializes in gaining a child's trust before persuading them to become their victim. The fact that adults can be victimized this way, too, shows how fragile a person's self-respect can be. The fact that children can become predators at a young age shows how evil this practice is.

I am very unhappy that the subject of child consent has been brought up in a forum that is supposed to be devoted to Liberty, a gift of God that is meant to uplift us, not degrade us. Liberty is not about having sex with whomever you wish whenever you wish, regardles of the consequences.

If you want to understand the meaning of the Declaration of Independence, go back and read the Self-Evident Truths again, and this time ask yourself why they said Liberty cannot exist in the absence of morality.

read full comment
Image of Karen Renfro
Karen Renfro
on February 07, 2019 at 10:54:50 am

Yes, Liberty / freedom is best or most fully exercised in its self-restraint AND that is clearly what the Founders believed and intended.

Also, see Richard Reinsch's essay on Solzhenitsyn and his critique of Western conceptions of liberty.

read full comment
Image of gabe
on February 07, 2019 at 12:03:35 pm

I scanned the Amazon preview of Brewer's book a bit and was not impressed. She seems to focus on England and Virginia and bases her argument mostly on anecdotes or sui generis kinds of cases that made the Year Books.

As Brewer's focus seems to be consent and the rights of children under the patriarchy it may be that Brewer is front-running something that NAMBLA might find attractive.

Brewer is correct that the idea that the political order should rest on the consent of the governed is closely associated with the English Reformation of the 17th C. But, it is not clear that Brewer recognizes how limited the franchise was in 17th C. England. The estimates I've read place the number of actually franchised 40 shilling free holders at less than 5% of the population. Then again, enfranchisement and voting do not seem to be the subject of her book.

The issue of "the consent of the governed" as opposed to the long established "consent of Parliament" seems to have entered English politics in October 1647 at St Mary's Church in Putney when the Army Council of the New Model Army was debating what to do about a Parliament dominated by Presbyterians that wanted to keep the monarchy, disband the the army and enforce Presbyterian conformity on England.

The Soviet historians had no trouble recognizing Army Council as a revolutionary republican workers and soldiers soviet. It was made up 50-50% split of "agitators" from the ranks and officers. All were freely elected by their peers. The opinions represented in the Council ranged from a narrowly confined monarch in a constitutional monarchy to a democratic republic with no kings, no bishops, no lords and no established religion.

At the debate, Col. Thomas Rainborowe, soon to be John Winthrop's brother-in-law, spoke for the republican faction and argued that "least hee" in England could not be justly bound to a government he had not consented to. In the context of the debate, I think it likely Rainborowe was arguing that the rank and file in New Model Army and their Leveller allies in London had to consent to whatever government eventually emerged from the revolution. On the other side, Gen. Henry Ireton, Cromwell's son-in-law, argued for "property," which included not only land and personal property but also one's inherited civil status and all its customary perquisites.

Back to Brewer: In New England in the 1630s the age of consent for legal documents and for voting was 21 and remained so for over 300 years, although males age 16 and over were automatically part of the unorganized militia. Orphans and indigent children under 21 could not be apprenticed or indentured by themselves or by relatives who were not their parents without court approval.

read full comment
Image of EK
on February 07, 2019 at 12:05:30 pm

But wait, screams the pitchman, "There is more":


wherein we learn that the "consent" fetish has now reached its inevitable terminus - suing your parents because you were conceived by then WITHOUT your consent.

Hmm! will no one raise the issue in the obverse? - suing your parent for terminating you without your consent.

What sheer and utter stupidity and narcissism.

read full comment
Image of gabe
on February 12, 2019 at 05:52:09 am

[…] I discussed earlier, Historian Holly Brewer’s book, By Birth or Consent: Children, Law, & the Anglo-American […]

read full comment
Image of Individualism, Consent, and Community
Individualism, Consent, and Community
on July 28, 2020 at 06:24:21 am

[…] is created. (See, for example, Holly Brewer’s book, By Birth or Consent, which I discuss here and […]

on July 28, 2020 at 08:09:18 am

[…] is created. (See, for instance, Holly Brewer’s ebook, By Birth or Consent, which I talk about here and […]

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.