“THE CONSENT OF THE GOVERNED”

THE CONCEPT of “the consent of the governed” is confusing to many people. I admit it has caused me some confusion, too. In various discussions lately, however, I have been prompted to think about it in more detail.

The American Declaration of Independence used the concept:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, …. (Emphasis added.)


The Preamble of the Constitution of the United States justified the establishment of a new form of government:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. (Original emphasis.)


WHO SPEAKS for “the governed”? Who speaks for “We the People”? How is “the consent of the governed” to be established?

Ayn Rand wrote that it is necessary to “consent to” the delegation to the government of one’s individual right of physical self-defense.

There is only one basic principle to which an individual must consent if he wishes to live in a free, civilized society: the principle of renouncing the use of physical force and delegating to the government his right of physical self-defense, for the purpose of an orderly, objective, legally defined enforcement. Or, to put it another way, he must accept the separation of force and whim (any whim, including his own.) Ayn Rand, Capitalism: The Unknown Ideal, Appendix: The Nature of Government, p. 332 (bold emphasis added).



BUT what does "must consent" mean?  If one "must consent," is it "consent"?  I sometimes hear the cry, “I didn’t consent! I didn’t delegate my individual rights to the government!”

Philosophers and political scholars have written on this topic over the recent centuries. There are seemingly only two solutions to the problem of who speaks for “we the people” in forming a government.

ONE THEORY regarding “the consent of the governed” is that one’s individual consent may be refused, otherwise, it is not “consent.” The problem with the individual consent theory is that it would, by its terms, allow for rejection of the individual’s consent to the government. The corollary of a so-called right to refuse delegation of the right of self-defense to the government is anarchy.

THE OTHER THEORY is the “social contract” theory. The problem with the social contract theory is that it would, by its terms, require unanimity, of “consent of the governed.” Of course, unanimity could never be achieved among multitudes of “we the people.” But without unanimity, how could a people ever “ordain and establish” or maintain a government? The corollary of not achieving unanimity under a social contract theory is anarchy.

Of course, anarchy is the antithesis of government and the purpose governments are instituted among men, that is, to secure the rights to life, liberty, and the pursuit of happiness.

Many arguments have been advanced in efforts to save the social contract theory from anarchy. In general, the arguments attempt to “imply” consent, for example, by continuing to live in a country. But these efforts are not satisfactory, because none of them grants the so-called right to refuse the individual delegation to the government of the right of self-defense.

THE ANSWER is unanimity in “the consent of the governed” is not required.

Regarding the social contract theory, Ayn Rand explained:

As to the “maximin” rule of choice, I can annul Mr. Rawls’s social contract, which requires unanimity, by saying that in long-range issues I choose that alternative whose best possible outcome is superior to the best possible outcome of the others. Ayn Rand, The Ayn Rand Letter, An Untitled Letter—Part II, Vol. II, No. 10, February 12, 1973.

This may seem a “pragmatic” answer. However, in another article she makes an important point regarding the primary nature of individual rights compared to the consequential role of government in the protection of individual rights.  Ayn Rand wrote:

To add insult to the American people’s injury, The New York Times published an editorial (May 25, 1972), entitled “Retreat on Rights,” which said: “The Supreme Court decisions permitting criminal convictions by less than unanimous juries and narrowing witnesses’ immunity against self-incrimination are disquieting in their practical effects but, even more, as portents of things to come.

“In the United States and other free countries, the drift of history in this century has been toward strengthening the power of government and diminishing the liberties of the individual. One of the few countervailing pressures has been the libertarian tendency of the Supreme Court to construe the Bill of Rights and the Fourteenth Amendment broadly in behalf of accused individuals, racial and religious minorities, the impoverished and ignorant, and political radicals and dissenters. The Court’s new majority bloc made up mostly of Nixon appointees may be bringing that tendency to an end.” After discussing the possible consequences of the Supreme Court decision—such as: “Prosecutors will find it easier to get convictions in cases which now end in hung juries”—the editorial urges the country to hope that the effects will not prove “destructive of individual rights.”

This means that we must fight the world’s drift toward statism by protecting the individual rights of criminals.

(Don’t remind me that an accused person is not necessarily a criminal and that he must be protected against unjust accusations. The rights of the accused are not a primary—they are a consequence derived from a man’s inalienable, individual rights. A consequence cannot survive the destruction of its cause.

What good will it do you to be protected in the rare emergency of a false arrest, if you are treated as the rightless subject of an unlimited government in your daily life?)
Ayn Rand, The Ayn Rand Letter, Moral Inflation—Part II, Vol. III, No. 13, March 25, 1974, p. 307–08 (bold emphasis added).


PARAPHRASING, the right to delegate the right to self-defense to the government is a consequence derived from a man’s inalienable, individual rights. The so-called rights of the anarchists to refuse delegation to the government of their rights of self-defense are not a primary—they would be (if anything at all) a consequence derived from a man’s inalienable, individual rights. A consequence cannot survive the destruction of its cause.

What good will it do you to be protected in the occasional case of disagreeing with a government decision according to political processes, if the alternative is that you are systematically treated as a rightless person under anarchy in your daily life?

“The consent of the governed” should be established by political processes, as for the establishment and continuance of the government under the Constitution of the United States.  The right of self-defense is an individual right, but it is necessarily delegated to a proper government for objective control, or the individual right itself would be destroyed.

It should be understood, of course, that this discussion regards civilized forms of government, such as the Constitution of the United States, which is designed to protect individual rights, not to statist governments, such as North Korea's dictatorship, which systematically oppresses the rights of the people.

Respectfully,
Old Toad


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