The pursuit of extra-constitutional natural law theories makes for strange bedfellows.
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.