Consent of the Governed

"Knights, the gift of freedom is yours by right. But the home we seek is not in some distant land. It's in us, and in our actions on this day! If this be our destiny, then so be it. But let history remember that, as free men, we chose to make it so!"
--Arthur Castus (King Arthur)

As the judge explains, each of us has been endowed with a set of unalienable rights. Among them, as famously noted by Jefferson, are life, liberty, and the pursuit of happiness.

These rights can be broadly construed as property rights. Each of us owns our lives, our wherewithall to produce, and the income from our productive endeavors.

Whether using a theological or biological explanation for their existence, these rights come from within us--they are 'natural.' They are not given to us by government or by other people.

When people try to rob us of our rights, we are justified in using force to defend our property. However, because the force of perpetrators can exceed our defensive capabilities, we may designate some individuals to serve as our agents to help us, as Jefferson noted, 'secure' our individual rights. We lawfully transfer some of our power to these agents so that they can help us better protect our natural rights.

Collectively, these agents are 'government.' These agents operate, per Jefferson, with our consent. This consent is reflected by the Constitution, which represents a social contract between the people and the government populated with our agents

The judge's commentary poses an interesting question. If the government claims its authority through the social contract which is the Constitution, and this contract reflects the consent of the governed, then how can the Constitutional contract be valid today? After all, none of us were around when the contract was originally ratified.

By my way of thinking, a broad social contract like the Constitution can only be considered valid from one generation to the next if the contract confines government to upholding natural laws that cannot be contested. For instance, just as none of us has the right to lawfully steal from each other, government does not have the lawful right to take property from individuals under threat of force.

There is no way that a social contract that specifies government to forcefully advance the wealth of some at the expense of others to be valid over long periods of time, since some people would surely not consent to such a contract.

The Constitution as originally written respected the natural rights of individuals and limited the scope of government to protecting these rights. Not consenting to these terms reflects a desire to infringe on the rights of others which, of course, is unlawful. Thus, the Constitutional contract can be seen as perpetually valid through the eyes of lawful individuals.

However, there is a case to be made that changes made to the original Constitutional contract since its inception are indeed invalid. The Sixteenth Amendment, for example, appears wholly inconsistent with the natural rights framework upon which the original consent of the people was based. It is hard to believe that the original Constitution would have been ratified by all states had the federal government been authorized to tax income.

When government agents violate the terms of the agreement, then the social contract has been breached. It is then morally and ethically justified for the people, using Jefferson's magnificent words, 'to throw off such Government, and to provide new Guards for the future security.'

In such a case, the contract does not change. The agents do.