The Collapse of Consent

Can "Consent of the Governed" Sustain a Fractured Society?

On the latest episode of Legal Spirits, I speak with legal scholar Steve Smith (University of San Diego) about a foundational principle of American law and politics: "the consent of the governed."

That phrase, which goes back to the Declaration of Independence, has long served as a central justification for our constitutional order. Our government is legitimate, we tell ourselves, because, as a free people, we have agreed to it. But in a society that is politically polarized, can consent still do the work that is required of it? Can we continue to ground legal and political authority in a story that fewer and fewer Americans believe?

Drawing on his new paper, The Collapse of Consent, Steve and I explore how the idea of consent has shifted over time—from a condition that limited a government that was itself based on God-given or natural rights to a secular source of legitimacy that stands on its own. Consent was always a legal fiction, Steve argues--but it's no longer as "truish" as it once was, in a time of cultural fragmentation and institutional mistrust.

Steve and I also talk about some intellectual trends that have contributed to the breakdown in the concept of consent, including the rise of critical and identitarian theories in the academy and polarization in political life. We also ask what might come next. Is technocracy the new paradigm? Integralism?

You can listen to the full episode here.

Comments

[Supremacy Claus]

When the highly toxic lawyer profession runs 99% of government policy, it is the consent of the oligarchs, to benefit only the oligarchs and the lawyer rent seekers.

Every self stated goal of every one of the 200 law subjects is in utter failure. These are masking ideology for plunder of assets, and tyrrany of the population.

[Supremacy Claus]

"We also ask what might come next." AI driven self help, since there is no legal recourse against these little tyrant bitches.

[Malika the Maiz]

How was the food at the asylum?

[thesafesurfer]

The consent of the governed is always a political function expressed in free and fair elections. Law is subordinate to elections or unaccountable judicial tyranny results.

[Stupid Government Tricks]

Riiight. Because tyranny of the majority is all that matters to pretend the election losers consented.

[JasonT20]

Election losers consent to be governed by the winners unless what they really wanted wasn't an election, but to have the power to impose what they want on everyone else.

Which, come to think of it, is also how it works for the winners.

[TheAmazingEmu]

I would argue a fracture of society itself doesn't undermine consent of the governed as long as there is an agreement on a few fundamental parts of government. In the United States, it would be sufficient to believe in democracy and the rule of law. There are some who argue that significant portions of society have moved past that point, in which case, there is no unifying feature, but that's to be determined.

[Brett Bellmore]

What seems to be replacing it is "the consent of the governing".

[ReaderY]

The question Professor Movsesian is really asking here, I think, isn’t really consent as such. Consent can be performed by individuals as individuals. Rather, it is about whether the second term, “the governed,” can function as a singular noun. That is, It is about the related question of whether a collection of individuals has to have a certain minimum in common in order to able to regard themselves and function as a polity and work and form a society and a government together.

Both liberals and libertarians poo-poo the notion. But they may well be doing so based on pure wishful thinking, not evidence.

[Krayt]

What everyone has in common, in long lines trying to get in, is a desire to be free ot tyranny and corruption, the shit that makes "shithole" countries "shithole-riffic".

It's no coincidence when these countries from time to time have elections, dealing with corruption is always at the top of the list.

I say this all the time: this country is great because it is free, not because it is a democracy. Democracy is a tool free people use to manage their government, but it is an abstraction of might makes right, and should be treated as dangerous, like feeding caged tigers.

It is in the interest of the corrupt power mongers to chafe at constitutional limits on their power, and they now have an invented meme: disregard old dead white men who get in our way, the way of You the People, and I will use that unlimited power after we work around it.

There have been people around here who regurgitate that self-serving power monger arrogation nonsense, and should know better, and should be ashamed of themselves.

I have no issues with agitating for the deliberately laborious amendment process, but the idea the constitutional order should be overthrown on some declared superior morality of pure vox populi, that there's a defect down to the roots, when all that does is make many a dead tyrant get all excited to see if this will "take", is just what the tyrants ordered.

[Krayt]

Many people who fervently believe the limited constitutional order is an atavism, if not fully cancerous from day one, and that an easier vox populi path is holy and good, are having second thoughts about unlimited power as arrogated by someone with the gift of gab.

Go figure.

One hopes they are learning their lesson, but when Trump is gone, it's back to the good times, arrogate massive power and our accounts swell.

Pigs all.

[Rossami]

It's no longer truish not because of increased polarization or cultural fragmentation but because we've allowed government to metastasize far beyond what there is actual consent for.

'Consent of the governed' works really well when we keep government limited to the things on which there are near-universal consent (don't murder, don't steal, etc). Consent only broke down when we started allowing a mere transient majority to set rules instead of actual consent.

[Stupid Government Tricks]

Exactly! My fantasy is a core government so powerless that it doesn't threaten anybody, and people voluntarily and contractually join associations with membership contracts which surrender explicit rights. The key is that individualism can simulate socialism contractually, but socialism cannot even tolerate individualism, let alone simulate it.

Let the people who want Ponzi pensions and busybody regulators explicitly sign up for that and pay the membership dues necessary, and leave everybody else alone.

[M L]

The federal government was originally little more than a governing body to handle foreign relations, common defense, and administration of the interstate free trade pact.

I don't say "nothing more," but "little more."

[Stupid Government Tricks]

The Constitution was a great first draft. Unfortunately, judges have helped politicians and bureaucrats amend it unofficially to the point the founders would not recognize what we have today.

[Malika the Maiz]

I agree with you federal should decide less, but I’m not sure when we didn’t have mere transient majorities setting state and local policy.

[MaddogEngineer]

Correctly viewed through a lens of original public meaning, "consent of the governed" does not mean what many moderns have ascribed to it: continuous majority agreement and freedom to govern accordingly.

I say this because many of the Founders (incorrectly) more or less assumed at the national level Madison's faction theory from Federalist 10. What they most likely believed was consent of the governed is that this shifting factions would support specific actions within the current framework of the federal government, and everyone would presume that legitimate because it played by unchanging rules. Of course that almost immediately collapsed into an adversarial us-versus-them (as George Washington was leaving the scene) where the legitimacy of those in power was attacked, and the intentions of both sides were questioned with accusations of secretly wanting to overthrow that system when they reacquired power.

[gVOR08]

"Steve and I also talk about some intellectual trends that have contributed to the breakdown in the concept of consent, including the rise of critical and identitarian theories in the academy and polarization in political life." Did either of you mention decades of FOX/GOP us versus the "other" propaganda?

[Stupid Government Tricks]

You seriously expect anyone to believe that you believe only FOX/GOP propaganda has corrupted the consent of the governed?

[Sarcastr0]

I didn't see only in the post you replied to.

Consider why you felt you had to add that strawmanish edit.

[Stupid Government Tricks]

Perhaps you should consider why all you ever do is snipe and quibble and pound the table, and pretend your fake lack of reading comprehension is a virtue.

[Bob from Ohio]

"decades of FOX/GOP us versus the "other" propaganda'

Little fox news with an average 2.5 million viewers haunts the dreams of the left. It somehow offsets ABC, NBC, CBS, CNN, PBS, NPR, NYT, WaPo al by itself.

Maybe stop blaming a basic cable outfit for your side's failures.

[M L]

We do not have consent of the governed. Consent of the governed is impossible when you have a sprawling jurisdictional empire that encompasses many different locales with different cultures, traditions, industries, practices, beliefs, climates, etc. I mean, with all the diversity in the US - why not have a single global government? As the world shrinks with globalization, why could this not work in theory - that is, would it necessarily inevitably lack consent of the governed? I think yes. Collapse of consent is an inevitability under these circumstances.

Focusing on "political polarization" misses the point. People are diverse in their cultures and beliefs. The anti-human quest to obliterate such diversity and force everyone into a "one size fits all" is the essence of the imperialistic impulse, to subjugate and rule over others. It is a story as old as history.

Here's a quote:

our country is too large to have all it’s affairs directed by a single government. public servants at such a distance, & from under the eye of their constituents, will, from the circumstance of distance, be unable to administer & overlook all the details necessary for the good government of the citizen; and the same circumstance by rendering detection impossible to their constituents, will invite the public agents to corruption, plunder & waste: and I do verily believe that if the principle were to prevail4 of a common law being in force in the US. (which principle possesses the general government at once of all the powers of the state governments, and reduces us to a single consolidated government) it would become the most corrupt government on the face of the earth.

Thomas Jefferson to Gideon Granger, 13 August 1800

Prescient!

If the founders (all of them but especially those focused on consent of the governed, i.e. self-government, and the necessary corollary of decentralized power) thought this way about the 13 colonies/states, just imagine what they would think of our situation now!

Just take the fact, for example, that the States expressly reserved the right to withdraw from the Union. But a few generations later, that wasn't allowed. How do you square that with consent of the governed?

[Stupid Government Tricks]

There are plenty of others far more corrupt. The difference is, they weren't founded in the hope of never becoming corrupt.

[M L]

This is wholly beside the point. I didn't mean to say otherwise, we haven't been fully subsumed into a single consolidated government yet, and that was a bit of hyperbole and statement of theoretical principle from Jefferson anyway.

The point is this idea - that the expansion of jurisdictional territory across different locales, together with the expansion of the breadth and depth of powers exercised over that jurisdiction, is necessarily and fundamentally at odds with any notion of self-government or consent.

[Stupid Government Tricks]

Bureaucrats measure success by their budget, number of subordinates, and number of new regulations. The last is the most important, because if a bureaucracy stops issuing new regulations, it has shown itself to be irrelevant.

Businesses have bureaucracies, but they also have market competition to concentrate their minds on keeping their bureaucracy under control.

But governments are bureaucracies without competition. They take taxes and produce nothing. Constraining government is nothing but fantasy unless governments can be forced to compete, if their consumers / subjects / citizens can choose which government gets their voluntary taxes.

The various Chinese dynasties each lasted for several centuries, grew corrupt, and fell apart, with a century or two of warlords fighting to found the next dynasty. Can the US avoid that? I'd say we've got another century or so to find out. Maybe the second draft will be better, maybe worse, and maybe, just maybe, the corruption will get bad enough to wake people up before the corruption wins.

[Bob from Ohio]

The rise of the controlling federal judiciary oligarchy makes "consent of the governed" a quaint relic.

The views and votes of tens of millions don't matter if Tony Kennedy, for instance, decides to magically find a right to same sex marriage.

[Bob from Ohio]

Or some other robed figure decides a penalty is really a tax.

[M L]

Yes. But this sort of thing is the inevitable result of things like "incorporating" the bill of rights against the states.

[Bob from Ohio]

""incorporating" the bill of rights"

Of course. A naked political power grab. The most dangerous branch now.

[Longtobefree]

Well, for what it's worth, I withdrew my consent 18 years ago.
Nobody noticed. Nobody cared.

[Keldonric]

I’m not a lawyer, but there seems to be a real logical issue with the way “inherent sovereign powers” are used to justify federal authority.

As I understand it, the Constitution created the federal government. Before that, under the Articles of Confederation, the states were loosely allied, and most cooperation during the Revolution was voluntary and improvised. The Constitution was meant to establish a stronger national government — but also one with limited, enumerated powers.

So how can that same government now exercise powers that were never delegated to it in the Constitution — just because the “nation” might have them? Even if the U.S. as a whole might be said to possess certain powers as a sovereign, that doesn’t mean those powers were handed to the federal government.

And the 10th Amendment seems really clear on this:
“The powers not delegated to the United States… are reserved to the States respectively, or to the people.”
That doesn’t sound like a green light for implied or inherited powers — it sounds like a boundary.

I could maybe see some foreign affairs powers being implied — like recognizing governments in order to make treaties — but even that would need to follow as a functional necessity from an enumerated power, not be pulled from abstract notions of sovereignty.

If there’s a gap, shouldn’t the remedy be a constitutional amendment — not a judicial invention or even a legislative act outside Congress’s delegated authority? Congress can’t just legislate outside its constitutional bounds either.

Isn’t that the whole point of having a written Constitution — to ensure even necessary powers are consciously granted, not just assumed?

[Incunabulum]

Inherent powers is bullshit those that control the government use to justify more control.

The USG has only the authority delegated to it, no more, based on the way it was set up. That other nations have granted their government more privileges doesn't mean ours was intended to have them.

[Incunabulum]

Yes it can - if you stop with the 'we must all stay as one nation forever' stuff.

The coastal elites can rule over the coasts from guarded and gated communities while the rest of us in flyover country can go on to make the future.

[Longtobefree]

Well, we also will need guards to assure the elites stay in their enclaves and leave us alone.

[NvEric]

There's only been once for consent 1787-88
RESOLUTION - Perpetual Confirmation of the Constitution

Whereas, a healthy respect to each Citizen for their continued consent in allowing the Constitution of the United States to remain in effect requires perpetual confirmations; and

Whereas, with no such provision for Citizens to Rightfully repeat the most important agreement between Sovereign citizens and the Document, stating Limits and Purposes, which is to serve as the agreement and consent for the Constitution of the United States to exist; and

Whereas, this Rightful and Necessary confirmation shall be repeated so as to continue in each subsequent generation the check on subsequent government for Respect to our Sovereign citizens; and

Whereas, if such consent is found lacking, a Convention of the Republic shall be called for an inquiry into the People's concerns:

Now, therefore, be it Resolved by the States assembled, That the following article is proposed to all States to be adopted as a proposed amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by either method described in Article V:

"Article-
Preamble:
Being free people, who authorize others to act for us, requires respect from those we authorize, and a responsibility of such authority, when exercised.

This transference must be renewed from time to time. Our authorization, given freely to others still has a shared burden. For when freely given, authority apart from us is morally connected back to the source of all authority. Without recognition regarding this, by our government, to our temporary bond, that function is null, void, and subject to dissolvement.

A great burden remains on the people, and must not be forgotten, or dismissed.

Sec. 1 Effective on passage, a vote shall be called for in the several States to occur within thirty (30) days, where citizens will cast votes to indicate if the Constitution of the United States is and remains affirmed to exist, and such vote so requiring a three-fourths (3/4) majority in affirmation;

Sec. 2 Thereafter, every nine years from the date of passage, citizens shall cast votes to indicate if the Constitution of the United States is and remains affirmed to exist, and such vote so requiring a three-fourths (3/4) majority in affirmation;

Sec. 3 If the required affirmation is not reached in any vote, a convention of the several States shall be called immediately and shall begin proceedings within sixty (60) days;

Sec. 4 The convention shall consist of delegates elected, but not currently holding positions of election or appointment or employment and also such within the past year, at the time of such election; delegates shall be qualified to be citizens of an age of twenty-one (21) years or more. The number of delegates per State shall be no more than one-half (1/2) of current number of presidential electors and no less than three (3). The delegate elections shall be held within thirty (30) days;

Sec. 4 Rules for the convention, shall be set forth at the start of the convention from guidelines produced and passed by Congress, but actual rules must still be agreed to within fourteen (14) days or the rules from Congress shall be implemented instead;

Sec. 5 The convention shall have one hundred twenty (120) days to deliberate, if required, and if the time passes without a rendering, then it will be as though affirmation was reached.

Sec. 6 In a convention called, and while so, in its proceedings, it shall enjoy absolute independence from new laws and any other laws which interfere with its deliberations; no hindrance to any persons required and approved by said convention, or be otherwise disturbed, except for peaceful attendance by citizens either inside or outside of the convention place as is allowed by convention rules.

Sec. 7 Rendered deliberations shall be put into effect which shall consist of three options which requires a two-thirds (2/3) majority vote of the elected delegates to be chosen:

a) Continue with an affirmation.
b) Call for another vote of affirmation, to be held within thirty (30) days.
c) Deliver amendments for ratification to the several States, using a method described in Article V as determined by Congress, within fourteen (14) days.

Sec. 8 If option 'b' above is chosen, and if the subsequent vote returns a call for a convention, that convention shall act as a new convention, unless the new convention be the third one called during the current nine year period, then option 'b' is removed from choosing for that convention.
"

Post amble:
While this proposal has a fail-safe mechanism to placate the fearful, and does not fully confirm acceptance, its purpose is to allow honest dialog every 9 years. It's possible for repeat calls for confirmation 3 times, but it also allows the States to make their claims be heard too.

Self-Government means the People allow their governments to exist, and if those governments fail the People, then it's the Right of the People to make new government. In keeping our present system, which is largely a good one, allowances for straight forward acceptance must be made or it's not the People's Government.

[ducksalad]

Well, that started strong but then kind of petered out around Section 7 into timidity.

It glosses over the (by far) mostly likely outcome: there isn't 2/3 support at the convention for any of the three options, not even to affirm and go home. We can't get 2/3 vote for amendments, or anything else, in Congress, and the same voters and the same states are electing delegates.

In which case the convention times out without even an affirmation, giving further ammunition to those that say the Constitution is no longer legitimate, but without proposing any alternative or action plan, not even a formal breakup.

Your favorite evil guy, whether that's a Trump or an Obama, would certainly spin the whole things as "the people no longer want me constrained by these outdated rules".

-----
Alternate, simpler plan: Anytime 3/4 of the states pass identically worded amendments within a 7-year period, the amendment is ratified. No specification where the text originates. No required role for Congress or conventions, but of course both can still propose stuff....as can absolutely anyone else.

[Bunny495]

Bottom line is at the time the constitution was ratified the "governed" did consent on things like national defense and interstate commerce and probably not a whole lot else. As time went on so much more was added to what the federal government did it is little wonder that consent no longer exists.

[jansontaylor]

This is a fascinating discussion about the changing meaning of “consent of the governed” in today’s divided society. As trust in institutions fades, it's clear that many foundational concepts are being re-evaluated. It reminds me how important it is to have trustworthy systems in place, especially in areas like immigration. For those looking for reliable guidance on Canadian immigration, I recommend https://rsscanadaimmigration.com/ — a great resource in a time when clarity and trust are essential.