04/04/2017

Americans No Longer Believe In The ‘Consent Of The Governed’

James R. Rogers, Library of Law and Liberty

Way back at the founding era, Americans took seriously the idea of the “consent of the governed.” As Greg Weiner noted recently, and as I’ve discussed elsewhere, this consent is exercised collectively, either in aggregating individuals’ votes or through voter representatives. But Americans at the Founding took seriously the idea that their consent could be conferred by their representatives. This belief has changed in the intervening couple of hundred years. On both left and right, Americans now talk about taxes being forced on them to pay for things for which they disapprove, even though their respective legislatures adopted the taxes. I doubt many Americans today seriously believe that they’ve consented to most of the laws and taxes that their legislatures adopt. What changed?

The “consent of the governed” is a fundamental postulate of the Declaration of Independence, and is only somewhat-less known (and celebrated) than the Declaration’s affirmation of people being created equal and endowed with inalienable rights. (Belief in those things for another post.) What does it mean for the country when most of its people no longer believe one of the Declaration’s fundamental commitments?

We underestimate today the seriousness with which Americans initially took the idea of corporate consent. Most well known is the Declaration of Independence’s affirmation that governments derive their just powers from the “consent of the governed.” This relates to the creation of government; to the constitution-making, or constituting, stage in its most general form.

But the Declaration also asserts the need for consent to specific policies. It complains of the King “imposing taxes on us without our consent” and also objects to the keeping of a standing army “among us . . . without the consent of our legislatures.”

John Dickinson, writing the Farmer’s Letters before the Revolutionary War, refers to taxes set by Parliament as being “free gifts of the people” to the King. He added, “Taxes . . . were always considered as gifts of the people to the crown, to be employed for public uses.”

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.

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