Franke: Consent of the Governed
Consent of the Governed
“The United States Government faces growing difficulty in fulfilling its purpose because at least some of its powers are no longer derived from the consent of the governed.”
This was the topic taken on by my Socratic discussion group in March and it proved a difficult one. We never completely resolved it.
We immediately got stuck on answering these fundamental questions:
- When and how is this consent given by the governed to their government?
- Is this consent revocable?
- Is it a general consent placed unconditionally with our elected representatives or is it specific to each individual and to specific acts of the government?
That kept us busy for our allotted two hours.
The phrase is best known from the Declaration of Independence, where Thomas Jefferson claims that a government’s just powers are derived from the consent of the governed. He wrote this as his compatriots would soon vote to remove their consent from the British monarchy and its parliament.
Jefferson’s words were not original to him. He borrowed them from seventeenth century English philosopher John Locke, who no doubt borrowed the concept if not the actual words from philosophers going back to Socrates and Plato.
Part of our pre-session reading was Plato’s “Crito,” a dialogue between Crito and Socrates on the day before he was to be executed. Crito encouraged Socrates to escape prison and go into exile. Socrates refused based on his having given consent to be governed by the Athenian state. For Socrates this consent was universal and irrevocable even if a law or judgment proved illegal. His conscience would not allow him to oppose the government simply because he would suffer unjustly.
That took care of our third question. Or did it?
The group offered several historical events in which certain citizens refused to obey a law. The Vietnam era telephone tax was one such example. There were numerous times when high profile celebrities such as Barbara Streisand and the Baldwin brothers effectively renounced their citizenship by threatening to leave the country should an unacceptable presidential candidate be elected. If memory serves, none followed up on this threat.
This brought us back to the first question. How and when is this consent given? We agreed that it inheres in citizenship in a republic like ours. For most of us, this happens at birth with the decision’s being made for us by our parents. The only way to withdraw consent is to renounce citizenship.
That is what the Founding Fathers did when they wrote the Declaration of Independence, although it must be acknowledged that at least one-third of colonists stayed loyal to the crown for most of the war yet all gave their consent vicariously when their state conventions adopted the new Constitution.
If this analysis is valid, then was consent legally withdrawn when the southern states seceded in 1860-61? We went no further with this than to suggest it as another point of argument. It is noteworthy that in each case, the American colonies in 1776 and the southern states in the 1860s, the philosophical question was settled in a demonstrable way—on the battlefield, but with different answers to the revocability question. Yes, for the colonies; no, for the Confederacy.
What if government abuses this consent by usurping more power than originally conceded? And who decides?
The theory of the social contract between individual citizens and their government was introduced into our discussion. While this usually is attributed to Enlightenment political philosophers, it is evident in Socrates’ argument in Crito. Rejecting laws simply because we disagree breaks this contract and threatens the stability of the state itself. In Socrates’ case his very life was at stake but that was less important than his implicit consent given to the government of Athens.
But can an individual citizen withdraw his consent on a limited basis, affecting only a specific act of government or for a specific elected official? In the last decades we have seen multiple elected presidents declared “illegitimate” by disaffected opponents and several election losers who refused to concede. The well-organized protest movements pf recent years could have withdrawal of consent as their premise although I can’t recall reading any appeals to this Jeffersonian principle
It is troubling to note that withdrawal of consent has advanced from single individuals to organized political movements. As one of our discussion group members reminded us: When governmental authority becomes difficult to trace back to consent, it becomes less trustworthy.
As we approach the 250th anniversary of the Declaration of Independence, we must ask ourselves this question. Is the true “Spirit of 76” a celebration of history’s greatest experiment in self-government or is it a clarion call to reignite that spirit against a government that has become tyrannical?
For a classical liberal like me, it is still the former.
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