Consent of the governed

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Consent of the governed is a phrase from the United States Declaration of Independence. It is synonymous with a political theory wherein a government's legitimacy and moral right to use state power is only justified and legal when derived from the people or society over which that political power is exercised. This theory of consent is historically contrasted to the divine right of kings and has often been invoked against the legitimacy of colonialism. Article 21 of the Universal Declaration of Human Rights states that "The will of the people shall be the basis of the authority of government".

In the United States[edit]

Using thinking similar to that of English philosopher John Locke, the founders of the United States believed in a state built upon the consent of "free and equal" citizens; a state otherwise conceived would lack legitimacy and legal authority. This was expressed, among other places, in the 2nd paragraph of the Declaration of Independence:[1]

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, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

And in the Virginia Bill of Rights, especially Section 6, quoted below:

That elections of members to serve as representatives of the people, in assembly, ought to be free; and that all men, having sufficient evidence of permanent common interest with, the attachment to, the community, have the right of suffrage, and cannot be taxed or deprived of their property for public uses without their own consent, or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good."[2]

Although the Continental Congress at the outset of the American Revolution had no explicit legal authority to govern,[3] it was delegated by the states with all the functions of a national government, such as appointing ambassadors, signing treaties, raising armies, appointing generals, obtaining loans from Europe, issuing paper money (called "Continentals"), and disbursing funds. The Congress had no authority to levy taxes, and was required to request money, supplies, and troops from the states to support the war effort. Individual states frequently ignored these requests. According to the Cyclopædia of Political Science. New York: Maynard, Merrill, and Co., 1899, commenting on the source of the Congress' power:

The appointment of the delegates to both these congresses was generally by popular conventions, though in some instances by state assemblies. But in neither case can the appointing body be considered the original depositary of the power by which the delegates acted; for the conventions were either self-appointed "committees of safety" or hastily assembled popular gatherings, including but a small fraction of the population to be represented, and the state assemblies had no right to surrender to another body one atom of the power which had been granted to them, or to create a new power which should govern the people without their will. The source of the powers of congress is to be sought solely in the acquiescence of the people, without which every congressional resolution, with or without the benediction of popular conventions or state legislatures, would have been a mere brutum fulmen; and, as the congress unquestionably exercised national powers, operating over the whole country, the conclusion is inevitable that the will of the whole people is the source of national government in the United States, even from its first imperfect appearance in the second continental congress...

Types of consent[edit]

Unanimous consent[edit]

A key question is whether the unanimous consent of the governed is required; if so, this would imply the right of secession for those who do not want to be governed by a particular collective. All democratic governments today allow decisions to be made even over the overt dissent of a minority of voters, which in some theorists' view, calls into question whether said governments can rightfully claim, in all circumstances, to act with the consent of the governed.[4]

Hypothetical consent[edit]

The theory of hypothetical consent of the governed holds that one's oblige obey government depends on whether the government is such that one ought to consent to it, or whether the people, if placed in a state of nature without government, would agree to said government.[5] This theory has been rejected by some scholars, who argue that, since government itself can commit aggression, creating a government to safeguard the people from aggression would be similar to the people, if given the choice of what animals to be attacked by, trading "polecats and foxes for a lion", a trade that they would not make.[6]

Overt versus tacit consent[edit]

Another division that is sometimes made is between overt consent and tacit consent. Overt consent, to be valid, would require voluntariness, a specific act on the part of the consenters, a particular act consented to, and specific agents who perform this action. Immigrating into a particular jurisdiction is sometimes regarded as an overt act indicating consent to be ruled by that jurisdiction's government. Not all who are ruled by a particular government have immigrated to that jurisdiction, however; some were born there.

It has been pointed out that in jurisdictions where proportional representation is not used, but candidates are instead elected by plurality vote, a candidate can be elected despite the overt dissent of a majority of the people. Not every voter has necessarily had an opportunity to vote on the constitutional provisions specifying that plurality voting should be used; according to some theorists, this calls into question whether said voters have consented to be governed by the candidates who obtain plurality support. A counterargument is that, by failing to act through the process of constitutional amendment to change such provisions, the people have consented to them. A rebuttal to this is that in some jurisdictions, the means of amending the constitution are not completely in the hands of the electorate; the same issues arise, in claiming that the constitution left in place by the decisions of the people's elected representatives is consented to by the people, as arise in claiming that any other actions taken by said representatives are consented to by the people. Some proponents of the "overt consent" theory hold that the act of voting implies consent, while others question the connection between voting and consenting to a particular scheme of representative, since some voters may oppose the system as a whole but desire to influence decisions on particular issues or candidates.[4]

The theory of tacit consent of the governed holds that if the people live in a country that is not undergoing a rebellion, they have consented to the rule of that country's government.[6]

See also[edit]

References[edit]

  1. ^ http://www.ushistory.org/declaration/document/index.htm[full citation needed]
  2. ^ Virginia Declaration of Rights
  3. ^ Bancroft, Ch. 34, p.353 (online)
  4. ^ a b Cassinelli, C. W. (1959). "The 'Consent' of the Governed". Political Research Quarterly 12 (2): 391–409. doi:10.1177/106591295901200202. 
  5. ^ Pitkin, Hanna (1966). "Obligation and Consent—II". The American Political Science Review 60 (1): 39–52. doi:10.2307/1953805. JSTOR 1953805. 
  6. ^ a b Bookman, John T. (1984). "Locke's Contract: Would People consent to It?". American Journal of Economics and Sociology 43 (3): 357–68. doi:10.1111/j.1536-7150.1984.tb01750.x. 

Further reading[edit]