Previously, we discussed the negative stigma attached to questioning one’s government. The question we did not address, however, was the validity of the government to begin with. What makes the existing government legitimate? Why must we follow the laws and regulations decreed by men unknown to us? It is safe to say that virtually every living person within the political bounds of a nation are at odds with at least one regulation or program enacted by the government. However, before a person can determine the validity of a particular law one must first address the basis of authority of government in general.
The United States federal government was created upon the approval of the Constitution in 1787 by delegates from the original thirteen colonies. The document itself calls upon the authority of “We the People” in order to legitimately establish the government. Therefore, in order to determine why those living today ought to obey the laws enacted by a government created nearly 225 years ago we must address the most common defenses for its legitimacy.
We the People.
Quite possibly the most prevalent defense of the Constitution and the federal government is known as popular sovereignty. The Constitution derives its power from the power of the people. One simply has to look at the preamble of the Constitution to see the famous phrase “We the People.” Thumb through the average history textbook and you will find sections ripe with the idea that the people as a whole delegated a portion of their sovereignty to the government when they signed the Constitution.
However, there are a few problems with this notion. For instance, only twelve states sent delegates to the Constitutional Convention with Rhode Island abstaining. Additionally, only 39 of the 55 delegates actually agreed with and signed the Constitution – a roughly 71% quorum. There were no restrictions on the number of delegates each state could send. This resulted in a disproportionate representation between the states. For instance, Pennsylvania sent eight delegates while New Hampshire sent only two and New York and Connecticut sent three each. Clearly this was not an equal representation of “We the People.”
The delegates themselves were chosen by the state as opposed to the people within the states. With a combined population of a little over 3 million this equates to roughly 61,000 people per delegate. And, since 16 of the delegates did not sign the Constitution nor was Rhode Island even involved, this left about one million people in opposition to the plan assuming the delegates were even an adequate representation of “We the People.”
Even if we were to ignore the issues brought to light above we still have the problem of the convention taking place nearly 225 years ago. It is one matter to assume a state-chosen delegation could determine the proper government for those living but another entirely to presume they could make this decision for posterity as well. Thomas Paine eloquently rebuked Edmund Burke for making this very same assumption in his Rights of Man published in 1791:
There never did, there never will, and there never can exist a parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the ‘end of time’ …. The vanity and presumption of governing beyond the grave, is the most ridiculous and insolent of all tyrannies.
The concept of determining the form of government for the unborn is the antithesis of freedom and is akin to slavery. Even if we were to assume that the new federal government was accepted by every single person living in the thirteen states – which it very obviously was not – it remains unconscionable to be so bold as to claim it becomes binding on those whose voices have not yet even been created. The inability of a person to affirm or deny agreement is by no means consent.
Voting is consent.
The argument continues to modern day with the excuse of voting as consent. By voting for your representative in the government you implicitly consent to being governed (or so they will claim). As you will see, a deeper investigation into this claim leaves it lacking.
To begin with, the average voter turnout over the last thirty years has only been around 44.7% of the voting-age population with a mere 37.8% in the most recent election cycle in 2010. Of those who vote, there will be “winners” and “losers.” The representative of choice of some people will win the election and allegedly begin representing them while the representative of choice for a great number of others will not get elected. Thus the choices of a great many will not come to fruition.
It is argued that this is simply the way the system works and it is as fair as possible. However, what about the people who voted for a candidate simply to prevent an alternative candidate from entering office? There are many who do not prefer either candidate but would rather take the “lesser of two evils” than leave it to chance. There are also many people who are highly concerned about certain issues and, therefore, vote for candidates based on these single items regardless of their other views. There are more still who vote for a candidate based upon his campaign promises only to vote contrarily upon entering office. In all of these cases the people are not in fact represented.
Many will point out, however, that they did in fact vote which implies consent to the system. This completely ignores how to classify the remaining 55+ percent who did not vote as pointed out above. The argument commonly raised against this point is that they had the opportunity to vote, and therefore change the system, but chose not to which implies consent. After all, “you can’t complain if you don’t vote.” Or so goes the popular mantra. But this raises an important question, if you consent by voting and you consent by not voting, how does one abstain from consenting?
The issue at hand here is legitimacy. If the defense of this legitimacy is based upon consent of the people affected by the system in question, logically it must be possible to withhold consent or the consent being alleged is not voluntary at all and cannot be utilized as justification. Since the argument suggests that consent is implied by voting or by not voting, it leaves no avenue for withholding consent and the argument fails.
Presence is consent.
A corollary of the “voting/not-voting is consent” argument is based on the mere presence of a person within the political boundaries. These people will argue that a person’s continued presence within the country implies consent since they have the ability to move beyond the national jurisdiction. Ignoring completely the high costs involved in moving one’s family to a more ideal political jurisdiction (assuming for the moment that one even exists), this argument completely disregards the point of contention to begin with: the legitimacy of government.
In order to suggest that a person’s presence in the United States is consent to the legitimacy of the U.S. government, one must presuppose that the U.S. government is legitimate. This argument is circular and purposefully so. As humorously put by Randy E. Barnett, professor of legal theory at the Georgetown University Law Center:
Suppose I come to you and demand that you sign an oath to respect my commands and you refuse. Upon your refusal I claim a right to your house and order you to leave the country. You rightly say that this is absurd. I have no authority to demand that you take an oath, so you are free to ignore me. Your refusal to take the oath would in no way obligate you to leave the country. You would be right.
How many of us have been asked to sign an oath agreeing to be bound by the Constitution? By what authority can the demand to sign an oath even be raised? The state cannot claim legitimacy or authority without the consent of those governed by their own admission (or at least according to the Constitution which is alleged to be the original authority of the current government). However, the state cannot demand the consent of the people to be governed without first having the authority to make such demands.
Obviously, the simple fact that one is born within a political area and chooses to remain there – whether due to ideal geography, close proximity to family, job prospects, or any number of other reasons – does not imply consent to be governed.
Revolt is refusal.
The final common argument for validity of government is one of acquiescence. Since the people do not actively revolt against the authority of government they must obviously consent to be governed. This argument says nothing of the great costs involved in a revolt such as this. Assuming that the 55% of the population which does not vote also does not consent to the current government, are they supposed to take up arms against their fellow man simply to voice their rejection of the government? This does not even pass a mild logical examination.
The American Civil War was a perfect example of a great portion of the population which did not consent to the current government. They drafted documents explicitly renouncing their implied consent and announced they were going their separate ways. They did not wish the current government to collapse or to be toppled by another regime, they simply wished to secede and form their own. Granted there were many complex events leading up to the final explosion of violence, but in the end it was violence alone which forced the acquiescence of the people. Coercion is not consent. It is not the duty of the people to revolt in order to voice their disapproval and rejection of the government.
In sum, the only method available to obtain validity and consent for a government is to appeal to the moral convictions of the people. An entity which does not utilize coercion or violence in order to maintain its existence does so because it provides a valuable service to “We the People.” While the proper form of government may elude us, it is at least certain that the one we actually do have does not derive its authority from the consent of the governed.