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Thursday, January 28, 2016

Real Government Doesn’t Have “the Consent of the Governed”

Lofty rhetoric vs. dismal reality

The Declaration of Independence famously states that governmentsderive “their just powers from the consent of the governed.” But, sadly, this is almost never the case in the real world.

If it is indeed true, as Abraham Lincoln famously put it, that “no man is good enough to govern another man without that other’s consent,” that principle has more radical implications than Lincoln probably intended. Few if any of those who wield government power measure up to that lofty standard.

Why Most Exercises of Government Power Are Nonconsensual

Georgetown political philosopher Jason Brennan has an excellent post summarizing the reasons why the authority of actually existing democratic governments is not based on any meaningful consent.

In a genuinely consensual political regime , “no” means “no.” But actual governments generally treat “no” as just another form of “yes”:

If you don’t vote or participate, your government will just impose rules, regulations, restrictions, benefits, and taxes upon you. Except in exceptional circumstances, the same outcome will occur regardless of how you vote or what policies you support.

So, for instance, I voted for a particular candidate in 2012. But had I abstained or voted for a different candidate, the same candidate would have won anyways. This is not like a consensual transaction, in which I order a JVM [sound amplifier] and the dealer sends me the amp I ordered.

Rather, this is more a like a nonconsensual transaction in which the dealer decides to make me buy an amp no matter whether I place an order or not, and no matter what I order.

If you actively dissent, the government makes you obey its rules anyways. For instance, you can’t get out of marijuana criminalization laws by saying, “Just to be clear, I don’t consent to those laws, or to your rule”. This is unlike my relationship with my music gear dealer, where “no” means “no”. For government, your “no” means “yes”.

You have no reasonable way of opting out of government rule. Governments control all the habitable land, and most of us don’t have the resources or even the legal permission to move elsewhere. Governments won’t even let you move to Antarctica if you want to. …

Finally, governments require you to obey their rules, pay taxes, and the like, even when they don’t do their part. The U.S. Supreme Court has repeatedly ruled that the government has no duty to protect individual citizens.

Suppose you call the police to alert them that an intruder is in your house, but the police never bother dispatch someone to help you, and as a result the intruder shoots you. The government still requires you to pay taxes for the protection services it chose not to deploy on your behalf.

I made some related points about government and consent here, including explaining why the majoritarian nature of democratic government doesn’t necessarily make it consensual, especially with respect to minorities, and anyone who did not have a meaningful opportunity to consent to the basic underlying structure of the system. I also explain why living in the territory ruled by a given government does not by itself qualify as meaningful consent.

The nonconsensual nature of democracy is exacerbated by the fact that it cannot be democratic all the way down. Many people who vote in elections do so not because they genuinely consent to all of the policies of their preferred candidate, but merely because they chose him as the lesser of the evils put forward by a political system that they have little if any leverage over.

Even many of those who both voted for the winning party and genuinely support all or most of its policies may not have exercised genuine consent, at least not if genuine consent must be informed. The structure of democracy creates strong incentives for voters to be rationally ignorant about the issues at stake in an election, and most indeed know very little about them.

We usually assume that genuine consent to potentially dangerous medical procedures must be informed. As the American Medical Association puts it, “The patient’s right of self-decision can be effectively exercised only if the patient possesses enough information to enable an informed choice.”

The same point applies to exercises of government power that often literally involve matters of life and death, no less than medical operations do. In many ways, we are all the government’s unwilling, poorly informed patients.

Some degree of consensuality arises at the state and local level, where citizens can “vote with their feet” to escape policies they oppose. But much modern government policy is made either at the national level, or by subnational entities that are difficult to escape, as when they target immobile assets, such as property rights in land.

Why It Matters

As Brennan emphasizes, the nonconsensual nature of most government power does not prove that government is necessarily illegitimate, or that democracy has no benefits. Government power might often be justified on consequential grounds, such as its ability to increase social welfare, provide public goods, or curb injustice.

Sometimes, those benefits will be great enough to outweigh the harm caused by exercising power without consent. And democracy still has a variety of advantages over dictatorship or oligarchy. Among other things, those types of regimes are usually even less consensual than democracy is.

But the lack of consent does undercut arguments that we have a duty to obey the government because we have somehow agreed to it or because it represents the “will of the people.” When the government makes unjust laws, it cannot so readily claim we have an automatic duty to obey them, regardless of their content.

Moreover, if government power must be legitimized by its consequences rather than by its supposedly consensual origins, that strengthens the case for imposing tight limits on the state in areas where the consequences are negative, or even ambiguous.

Other things equal, the exercise of coercive power without consent is a bad thing, especially if resistance is often subject to severe punishments such as imprisonment, heavy fines, or even death. It should only be permitted where there is strong evidence that the consequences really are beneficial, and cannot be achieved any other way.

Nonconsensual government must be subject to a substantial burden of proof when it exercises coercive authority, and it may often fail to meet it. The nonconsensual nature of most government policies also strengthens the case for devolving power to regional and local authorities in order to increase the number of issues on which citizens can “vote with their feet” and thereby exercise at least some degree of meaningful consent.

A government that rules without consent isn’t necessarily a bad government. In the terminology of the current front-runner for the Republican nomination for our most powerful political office, it might even turn out to be super-classy and hugely terrific.

But it should be viewed with greater suspicion and kept on a tighter leash than a government that genuinely derives its just powers from the consent of the governed.

This post first appeared at the Volokh Conspiracy.

  • ILYA SOMIN is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy.