Consent and Contract

"Should the American colonies government themselves independently? I believe that they can, and they should."
--Benjamin Martin (The Patriot)

Judge Nap notes that one of the radical ideas underpinning the Declaration of Independence is that no government is valid if it does not enjoy consent of the governed. This concept was unheard of in 1776. No prior ruler claimed consent of the governed as a basis for legitimacy. Instead, as in England, rulers were often promoted as devine and perfect. Governments served at the pleasure of the king--which inevitably meant shaking down the king's 'subjects' to support the throne's pleasures.

But, as the judge asks, what does 'consent of the governed' mean? Do you consent to a particular government by the act of voting in a democratic election? What if the government is run by someone who you voted against? Do you consent to a government that enacts policies that you disagree with? Can a person avoid government by not giving consent?

Consent implies a contract--a contract between those who govern and those who are governed. Valid contracts require explicit, voluntary approval of those involved--either thru direct participation in hammering out and agreeing to the contract's terms or by indirect involvement thru agents explicitly designated by the contract's principals.

But those conditions are rarely in place between governments and the governed. Most policies enacted by governments have not been legitimately contracted--implying that the governments themselves are illegitimate.

Does this mean that 'consent of the governed' is an impossible dream? How is it possible to retain a government from one generation to the next under conditions of valid contract?

It seems to me that the only practical way that people can legitimately be governed on an ongoing basis is if the terms of the contract are so basic and obvious that no one would reasonably disagree with them. No theft. No fraud. No slavery. No murder.

Stated differently, no aggression.

Living in accordance with a higher, natural law is what our founding ancestors envisioned all would be willing to consent to.