The consent of the governed

“... Governments are instituted among Men, deriving their just powers from the consent of the governed,” Thomas Jefferson claimed in the Declaration of Independence. This claim, that governments are legitimized by the consent of the governed, is an important one because it is nothing less than the moral justification for every law and institution our government establishes. For being such an important ideal of our political system today, I feel that the notion of whether or not “the governed” have actually consented to their government goes largely unexamined. The general reluctance to question this belief, or the ease with which many dismiss challenges to it, makes sense, as Americans are constantly told that we are among the freest people on Earth. To even consider that the foundation of our society might be coercive and authoritarian would then be to think of ourselves as no better than the dictators and despots we are constantly warned against. Of course, the average American experiences greater day to day freedoms of choice than the average North Korean. But, we were born into the United States just as much as they were born into North Korea without anyone asking where we would like to live. We may get to vote for our political leaders, but there was never any point in time where we explicitly agreed to live in and abide by the rules of the United States. I do not recall signing any social contract, and I have yet to meet someone who does.

A likely objection to this line of reasoning is to point out that, unlike North Korean citizens, we Americans have the right to leave the United States and go somewhere else. They reason that because we have this right to leave but nonetheless still decide to stay means that we implicitly consent to the government that exists here. This argument is about as old as democracy itself. In ancient Athens, the philosopher Plato wrote a work called the “Crito,” where Socrates, after being condemned to death by the city of Athens, argues with another man named Crito as to why it would be unjust for him to flee the city and avoid execution. Socrates imagines what the Athenian laws, if they could speak, would say to him. He imagines that they would object that even though it was the laws of Athens that nurtured him from youth, they never once forbade him from leaving to live elsewhere. Furthermore, the laws argue that they would also not stop him from taking his property with him if he chose to leave. Thus, the laws argue that Socrates need not have agreed to them in words because he already agreed to the laws in deed. Although at the time “Crito” was written there was no conception of a government based on consent, the argument that consent is implied by not leaving was still being made.

Despite the force of this argument, there are a few reasons to be skeptical. My first objection to this argument is that it presupposes the legitimacy of the government. The clearest way to see this is to ask why a person that doesn’t like the government has to leave? The government, if truly based on the consent of the governed, should be abolished if people no longer consent. The fact that a person that does not consent is expected to leave means that we already accept that people have consented to that government. Otherwise, why would we expect someone to leave if they do not agree? Therefore, this argument is premised on the idea that the government is already justified.

Another objection to the argument in the “Crito” is to point out that the implied consent from not leaving a government comes only from the fact that the person in question thinks that particular government is the best of the alternatives. Being the best does not mean that it is morally good. To use an analogy, imagine different governments as different board games. Normally, individuals are free to stop playing a board game whenever they wish to. In that case, it would be fair to say that individuals consent to the rules of that board game because they could simply leave whenever they want and go make up their own rules for their own game. But with governments, while we might be free to go and play a different board game — we might decide to go play checkers rather than chess — we are unable to not play a board game. Furthermore, it might be the case that there are no good options. Imagine that each available board game requires players to stand barefoot on top of hot coals while they play. In this hypothetical situation, where there is no alternative without hot coals, it would be absurd to claim that players have implicitly consented to standing barefoot on hot coals. Returning to the real world, we should notice that it is basically impossible to live anywhere without a government, and that governments might all contain features — like hot coals — that we find objectionable.

And both of these objections are to say nothing about the difficulty of moving to a different country. To become a permanent resident in another country — although the process will vary by country — one would need to go through the process of applying for a visa, finding a place to live, possibly learning a new language and being prepared to leave family and friends behind. Gaining citizenship in another country is likely an even longer process and not even guaranteed.

All of this is to say, we should not fool ourselves into thinking that our laws and institutions derive their legitimacy from the consent of the governed. The laws and institutions that we have are not ones to which we have independently consented, but have instead inherited. In the absence of the consent of the governed, we must find a different moral foundation for governance or admit that there is no moral foundation at all.

David Henry is a sophomore majoring in the Program of Liberal Studies with a supplementary major in ACMS and a minor in Philosophy, Politics and Economics. Originally from Minnesota, David lives in Baumer Hall on campus. He can be reached at dhenry3@nd.edu over email.