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.