by Mark Franke
In the 1993 movie “Gettysburg,” Confederate generals are gathered around a campfire discussing the justification for their secession from the Union. They submit that the government comes only from the consent of the people and therefore the people have the right to withdraw that consent when government becomes tyrannical.
Sound familiar?
The Declaration of Independence used the same language to justify the colonies’ separation from Great Britain. The Virginia act of secession, and all the generals in the movie scene were Virginians, specifically referenced the action of the Founding Fathers. “We follow their footsteps.”
Two very different sets of circumstances, 1776 and 1861. Or not?
My Socratic discussion group took up the consent issue at our October meeting. We have been devoting our recent meetings to concepts taken from the Declaration of Independence and wisely put this one off until last.
How is this consent given? Under what conditions can it be withdrawn? Who decides if and when?
Difficult questions, these, but it helped to focus first on the philosophical basis for consent. We rounded up all the usual Enlightenment era suspects — Thomas Hobbes, John Locke, etc. That proved easy enough, except for the part of withdrawing consent.
Our two historical examples were withdrawals of consent by elected representatives on behalf of new, yet to be formed, nations. Why did one effort succeed and the other fail? That was simple to answer: Each went to war to validate its claim. The battlefield asserted its superiority over any philosophical argument, one succeeding and the other failing. Did might make right?
American history offers other examples of attempted withdrawal of consent, at least partial withdrawals. The Virginia and Kentucky resolutions of 1798 and South Carolina’s Ordinance of Nullification of 1832 failed to invalidate federal laws found to be disagreeable to these constituents. More recently we have the sanctuary city controversy in which local governments refused to allow enforcement of federal immigration laws within these jurisdictions.
These are all cases of selective withdrawal of consent which have not shown a record of acceptance across the American population. The lesson learned is that you can’t offer consent most of the time but withhold at other times, regardless how seldom.
But what if this issue were examined from the other direction? Can an individual or group withdraw its consent in a limited or partial manner yet still remain within the larger polity? Must there be continual validation of consent to government actions?
This hardly sounds practical in a nation of 350 million argumentative citizens. Fortunately, John Locke comes to our metaphysical rescue. In his Second Treatise of Government, he anticipated this objection to what might be taken as a simplistic, theoretical construct. He called it tacit consent. Locke argued that anyone who lives in a society and benefits from its protection and largesse has given his tacit consent to be governed in all matters.
This concept was not new with Locke. Plato, in his Socratic dialogue “Crito,” hypothesized a discussion between Crito and Socrates in his prison cell the night before his execution. Crito offers to help Socrates escape and go into exile away from Athens. Socrates rejects this out of hand, replying that he has lived in Athens his entire life and received all the benefits of citizenship. That constituted his consent to be governed . . . and by all Athenian law. No matter how unjust the verdict, he was tried legally and must submit to the court’s decision.
Socrates represents the virtuous citizen, one who willingly performs the duties of citizenship in response to the benefits that citizenship provides. It is probably unfair, certainly unrealistic, to expect such an altruistic attitude among the citizenry today. We have become too materialistic and self-centered to accept the sacrifices required of citizenship as envisioned by our forebears.
Are today’s violent protests a sign that many are withdrawing their consent to be governed? Withdrawing consent implies, or insists, that a better form of government is imagined by these rebels. And make no mistake about it; these protestors are rebels against established government just like that of our Founding Fathers in 1776 and the Confederates in 1861.
These are not peaceful marches or pickets opposing a particular law. They are fundamental challenges to a governing structure envisioned in 1776 and reaffirmed multiple times in our history, most emphatically in 1865.
All of which took my Socratic group back to our original questions on withdrawal of consent. Does consent require 100 percent agreement with every decision made by the government? Can consent be withdrawn on a limited basis, affecting only one issue or group? Does each citizen have an autonomous veto?
It is impossible to see how a civil society can exist if the answer to any of these questions is “yes.”
Socrates and John Locke understood.
Mark Franke, M.B.A., an adjunct scholar of the Indiana Policy Review and its book reviewer, is formerly an associate vice-chancellor at Indiana University-Purdue University Fort Wayne.
