“Consent” as the Ticket for Tyranny
Presidents have been perverting “consent of the governed” for centuries. “Consent of the governed” was a signature line of the Declaration of Independence, and it has echoed in official declarations ever since Jefferson’s time. President Harry Truman assured Congress in 1952, “No government can be invested with a higher dignity and greater worth than one based upon the principle of consent.” But this has long since been a charade.
As the federal government has become far larger and more heavy-handed, it is ever more important to persuade people that they consented to their oppression. But political consent is gauged very differently than consent in other areas of life. Political contracts only bind one side to an agreement. Consider the “Contract with America” that House Republicans offered in 1994, the “New Direction for America” that House Democrats offered in 2006, the “Pledge to America” that Republicans offered in 2010, and Donald Trump’s “Contract with the American Voter” unveiled in October 2016. None of these “contracts” was enforceable in a court of law. Instead, they were simply political promises that, labeled as contracts or pledges, created the mirage of a binding obligation.
Political contracts differ from private contracts because the former can never be nullified on account of deceit. Overt fraud is prohibited in private business dealings but is pervasive in political affairs. Citizens’ consent to their rulers at the voting booth is effectively irrevocable — at least for the current term in office. This is the fatal imbalance: a politician can say or do almost anything to get people’s votes. But after Election Day, people can do almost nothing to restrain the politician.
Almost a half-century ago, there was a brief, politically motivated recognition that the sheer size of government makes a mockery of citizens’ consent. President Jimmy Carter told the Democratic National Committee in 1978 that “the trend has been away from this commitment” that “laws should be made with the consent of the governed.” The 1980 Republican Party platform warned: “Government’s power … has already reached extravagant proportions. As government’s power continues to grow, the ‘consent of the governed’ will diminish.” President Reagan warned in his 1981 inaugural address, “It is time to check and reverse the growth of government, which shows signs of having grown beyond the consent of the governed.”
Yet, during Reagan’s presidency, the federal government became more invasive and intolerant. Reagan launched one moralistic crusade after another, cracking down on drugs, scourging smut, and raising the national drinking age to 21. The Justice Department and Environmental Protection Agency became far more punitive, while the Internal Revenue Service set records for unjustified seizures from private citizens. But Reagan was still a saint for many conservatives because he denounced “big government.”
A shining example of the perversion of purported consent came from former U.S. senator John Danforth’s 2000 report covering up atrocities in the 1993 federal attacks on the Branch Davidians at Waco, Texas. Danforth had been personally selected as Special Counsel to lead the investigation by Attorney General Janet Reno. Reno had been disgraced in late 1999 when her false denials that the FBI used pyrotechnics during their final attack on the Branch Davidians that left 80 people dead were exposed.
Danforth, in a preface to his report, declared, “Our country was founded on the belief that government derives its ‘just powers from the consent of the governed.’ When 61 percent of the people believe that the government … intentionally murders people by fire, the existence of public consent, the very basis of government, is imperiled.” But Danforth — whose pious pretenses earned him the derisive “Saint Jack” nickname in Washington — championed a “move along, nothing to see here” version of “consent of the governed.” The lesson of Waco, according to Danforth, was that the burden is on “all of us” to “be more skeptical of those who make sensational accusations of evil acts by government.” Danforth declared that he hoped his report would “begin the process of restoring the faith of the people in their government and the faith of the government in the people.” Danforth believed government officials had been wrongfully victimized by public distrust. With Danforth’s version of “consent of the governed,” the survival of democracy hinges on citizens believing government lies after mass killings. Rulers do not consent to having their subjects think badly of them.
Danforth declared that “the only antidote to this public distrust is government openness and candor.” But the feds became far more secretive since the 1990s. Federal agencies create more than a trillion new secret documents each year —enough to fill 20 million filing cabinets. But we still have self-government because politicians swear all the secrecy is for our own good. As NSA whistleblower Edward Snowden observed, “The consent of the governed is not consent if it is not informed.” The pervasive secrecy that has proliferated in post-9/11 America has made it far more difficult for citizens to leash their rulers; Snowden’s warnings on the creation of an “architecture of oppression” are more relevant than ever.
Not since the early 1980s has any president even hinted that the federal government lacks the consent of the governed. But only 17 percent of Americans in a 2014 poll said that government has the “consent of the governed.” Only 23 percent of respondents in a 2017 poll said that they “trust the government to do the right thing” most of the time. “Consent” has been lost in large part because the political ruling class scorns the values and preferences of the citizenry. Politicians have continually enlarged the arsenal of penalties and prohibitions that bureaucrats deploy against the people. Citizens did not “consent” to being fettered with a $38+ trillion national debt, but presidents and members of Congress inflicted it regardless.
“Consent of the governed” has little relevance to the day-to-day workings of Congress. “Law” is simply a snapshot of the momentary self-interest of a majority of legislators. Politicians merely need enough votes for one hour to permanently expand government power.
American presidents sometimes talk as if voters’ consent magically ensures that citizens will never be oppressed by government. In a 1982 speech to the German Bundestag, Reagan declared that NATO nations “operate by a rule of law, not by terror or coercion. It is government with the consent of the governed.” Speaking in 2009 to the Ghanian parliament, Obama lauded “governments that respect the will of their own people, that govern by consent, and not coercion.”
The iron fist is not a fist if the person who commands it won the most votes in the prior election. Permitting people to vote makes all the fetters government attaches to them nonbinding. Anyone who is beaten by government agents is not actually bruised, and anyone sent to prison because of a law enacted by elected politicians is still technically a free man. People who lose their land because of an arcane regulatory edict have lost nothing as long as they can still savor being obedient citizens.
Government agencies structure their policies to make even more absurd presumptions of “consent” in daily life. Because you traveled abroad, you supposedly consented to Department of Homeland Security agents examining and copying all the records on your cell phone or computer when you return to the United States. Because you bought an airline ticket, you supposedly consented to being pawed by a Transportation Security Administration agent, including an “enhanced pat-down.” Because you chose to use the Washington or New York subway, you have consented to a warrantless search of your backpack or purse by local police who receive a federal grant to conduct those “security theater” performances. Because you drive on government roads, you supposedly consented to federally funded license-plate scanners compiling a dossier of when and where you travel.
Political consent is defined these days as rape was defined a generation or two ago: People consent to anything which they do not forcibly resist. Voters cannot complain about getting screwed after being enticed into a voting booth. Anyone who does not attempt to burn down City Hall presumably consented to everything the mayor did. Anyone who does not jump the White House fence or tries to storm into the Oval Office consents to all executive orders. Anyone who doesn’t firebomb the nearest federal office building consents to the latest edicts in the Federal Register. And if people do attack government facilities, then they are terrorists who can be justifiably killed or imprisoned forever.
British philosopher John Locke wrote his Treatises on Government in the 1680s in part to establish a standard to justify resisting an oppressive government. Locke, who profoundly influenced the Founding Fathers, warned, “Men can never be secure from tyranny, if there be no means to escape it, till they are perfectly under it.” But in modern times, almost any elected government is automatically presumed legitimate when it invokes “consent of the governed.”
An earlier version of this piece was published by the Future of Freedom Foundation.
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