Why Political Consent Isn’t Real Consent

For language to be useful as a tool of communication, words must mean something. They cannot mean whatever we wish them to mean. They must have an actual definition.

In every circumstance of your life, you have a clear understanding of the word “consent.” You may not be able to spit out a dictionary-style definition on the spot, but you know, on a fundamental and visceral level, what consent is. And you know darn well when yours has been violated.

It’s not rocket science. It doesn’t require a philosophy degree. It’s a deep, earthy knowledge. You know when you’ve agreed to something and when you haven’t.

In every interaction of your daily life, you insist on consent. You do not engage in any economic, social, or physical transaction to which you do not agree. The idea of someone using force, or the threat of force, to make you do something is simply appalling.

And yet you accept this arrangement every day in your interactions with government officials and the government they claim to represent.

We rightly revere the 35 words in the American Declaration of Independence that begin with “We hold these truths…” as a powerful expression of the freedoms that all humans ought to enjoy. But after that, things go awry.

“Governments are instituted among Men,” we were told, “deriving their just powers from the consent of the governed.” And then, just a few years later, they formed a government that violates the consent of peaceful individuals, every minute of every day…even when it is functioning normally. How and why this came about is a longer subject for another time.

Short version: These men, brilliant though they were, were still products of their moment in history. A leap from monarchy to a representative republic was big enough; the leap from monarchy to true self-government would have been chasmic. They had ample historical examples of various types of democracies from which to draw, but practical ideas for how genuine self-government could work were still more than a century away.

Shorter version: This was the best they could do at the time. And we shouldn’t fault them.

Nonetheless, the government they created, and every other government like it, in no way respects consent as we understand it in every other circumstance of our lives. Tragically, the word “consent” in the Declaration of Independence ends up being more like a euphemism for forcibly imposed majoritarian consensus. We can respect and even cherish their accomplishment, while at the same time acknowledging that forcibly imposed majoritarian consensus is not consent.

When the American Founders expressed misgivings about the concept of “democracy,” they were referring specifically to a direct democracy, in which citizens themselves vote directly on matters of policy. They rightly feared that in such a circumstance, a majority—enflamed, perhaps, by the passions of the moment—might choose to violate the rights of a minority. (As it happens, they were also of an elite class whose reverence for “We the People” was balanced with, shall we say, an aristocratic distrust of the rabble. But that too is a discussion for another time.)

Their chosen solution was to erect obstacles. Instead of voting directly, the people would vote for representatives. Those representatives, in turn, would be checked by each other, by other branches of government, and by various mechanisms designed to prevent concentrations of power and wild lurches in policy. All things considered, it was quite an ingenious system.

But it was not, and is not, consensual.

The Founders were drawing from a deep well of knowledge bequeathed by another body of ingenious men: the classical-liberal philosophers of the Enlightenment. Indeed, we can consider the American founding to be the zenith real-world manifestation of classical-liberal ideas. Among those ideas was the notion of the “social contract”—a tacit agreement among people to give up a few rights in order to form a government that will secure the rest.

Here too, we can walk and chew gum at the same time. On the one hand, we can cherish the idea of the social contract as an important step in the journey of human freedom. On the other, we can recognize that it did not actually satisfy the conditions for real consent. Real consent cannot be “tacit” or ”implied.” At the end of the day, the “tacit” social contract, and its attendant “consent of the governed,” amounted to a philosophical cheat code—a workaround for something that, deep down, they probably glimpsed but didn’t yet have the tools to truly see.

Standing atop the shoulders of these giants of the seventeenth and eighteenth centuries, we have been able to discern further vistas. Men and women in the nineteenth and twentieth centuries carried the flame further, and now, here in the twenty-first, the picture has become clearer.

We have envisioned how true self-government might work, and we have a clear idea of why it is morally necessary to move in that direction: because the existing arrangements are fundamentally violative of human consent.

For consent to be real, it must have five characteristics.

It must be VOLUNTARY:

Little explication is needed here. If you did not consent voluntarily, of your own free will, then you did not consent. Forced consent is not consent. Coerced consent is not consent.

When a government—even one purportedly established to “secure“ rights—offers ‘protection’ and informs you that you have no choice but to accept its protection or suffer violence, that is not consent. That is a protection racket.

It must be EXPLICIT:

Even if we choose to accept or revere the concept of the “social contract” as an important step away from the divine right of kings, we must nonetheless recognize that it was only a step. To claim that any arrangement can be forcibly imposed and then justified by the claim that the victim’s consent was “tacit” or “implied” makes a mockery of the word “consent.”

It’s not consent if you didn’t explicitly consent.

It must be TRANSPARENT:

Let us say that someone claiming the authority to rule me and seize my property simply says that I explicitly consented to their authority. Okay fine—show me where I signed.

Explicit consent—in the form of a signed contract or other such agreement—must be transparent. It must be open and verifiable. One party cannot simply claim that another party consented to something without showing proof. Otherwise, bullies could lay claim to anyone and anything they wished. (Just as government ”officials” do now.)

It must be INFORMED:

This, too, ought to be relatively obvious. You have to know what you’re signing. You have to understand what you’re agreeing to. When police coerce a “confession” from someone with a 60 IQ, it’s not a valid confession. When you are told “ignorance of the law is not a defense,” and “the law” is 350,000 pages that no single person has read, can read, or will read in a lifetime, that is not informed consent either.

It must be REVOCABLE:

Consenting to something once does not mean consenting to it forever. Agreeing to do landscaping work for someone does not make you their landscaping slave. Buying a rotisserie chicken doesn’t subscribe you to the Rotisserie Chicken of the Month club.

And if you do subscribe to the Rotisserie Chicken of the Month club, that doesn’t mean you can never unsubscribe. If you are not free to withdraw your consent, then it was never consent to begin with. Permanent surrender of your consent is like permanent surrender of your self-ownership and personal agency. As Ernst Cassirer notes in the quote above, it simply cannot be done.

There are certainly personal relationships in which consent is ongoing and unspoken. A husband and wife do not sign contracts before every kiss. Nevertheless, their consent is still explicit and understood between them, and quite importantly, it is revocable. Either party can rightly withdraw their ongoing consent if they wish.

If you would like an analogy for what such a relationship would look like in the absence of consent, here you go.

Imagine that I walked up to the same woman who is now my wife and instead of courting and persuading her, over time, that I would make a good mate, I simply did this:

Hello, beautiful. You are now my wife.

Okay fine, then I want a divorce.

Yeaaaaaahhhh, no, sorry. That’s not how this works. This is forever, baby.

I. WANT. A. DIVORCE.

I really wouldn’t say that again if I were you. Not even to your friends, because I am always listening. And if you actually try to leave me…well, let’s just say you wouldn’t like me when I’m angry.

*”Wife” begins to cry*

Oh, and FYI…all the other men in the world are just going to marry you in some similar way, so don’t bother trying to go anywhere else. You’re better off sticking with me, honey.

Does any of that sound like consent to you?