The Declaration and Consent

Barrett and Alex discuss the Declaration's claim that governments derive "their just powers from the consent of the governed."  What does consent mean? Is it individual consent or the consent of the community? How does this differ from earlier ways of thinking about political authority?

Transcript

SPEAKER_00 0:02

To understand the foundations of America, we need to dig into the key texts and thinkers who've helped define our nation. I'm Barrett Randall, and I'm not an academic, but I'm also not afraid to talk to one. On the Foundations of a Nation podcast, I have conversations with my friend Alex Tuckness, Chair of the Political Science Department at Iowa State University, about the ideas that have shaped America. Welcome to the Foundations of a Nation podcast. I'm Barrett Randall, and I run a golf course. And I'm Alex Tuckness. I'm a political science professor. And we're going to be your hosts. In season one, we're looking at the Declaration of Independence. And in this episode, we're going to be talking about government by consent. Alex, is this the normal way people talked about government?

SPEAKER_03 0:54

No, no. We kind of take this for granted. But if you were to like look historically across the centuries, the idea that government derives its power and legitimate authority from the consent of the people is not actually the majority view across the centuries of Western civilization. Monarchs thought they were entitled by history, perhaps by God, right, to rule. They didn't actually have to ask permission from subjects. And if you go all the way back to the ancient Greeks, it's interesting. So Aristotle talked about some of the different types of governments. And he thought, well, you know, sometimes you have aristocracy, or sometimes you have oligarchy. He thought aristocracy is like rule by the few who are the best, like this is kind of rule by the most virtuous, whereas oligarchy is like maybe rule by those who are wealthy. But part of his point there was, right, there's a kind of internal logic. What is it that entitles you to political influence? You might say, well, I'm entitled to influence because I am more virtuous than you are, or I'm entitled to political influence because I am wealthier than you are. And, you know, over time, people start saying, well, I come from a better family than you do, right? You know, the kind of hereditary aristocracy idea, right? All of those are ways of claiming a kind of superiority of some people over other people that's kind of the justification for why these people get to rule. So I think there's something actually really significant when in the Declaration of Independence it says that governments derived uh their just powers from the consent of the governed.

SPEAKER_00 2:46

That's not okay. So there's not a lot of examples pre-this historically for people to say a consent-based government. Trevor Burrus, Jr.

SPEAKER_03 2:55

Right. Yeah. So this is not the norm, right? And that there's there's yeah, I think this is, you know, it's significant. And now we kind of tend to take it for granted, but that can be kind of missing how important an idea uh it was, right? And so part of the implication.

SPEAKER_00 3:08

Yeah, where would they have gotten that idea then?

SPEAKER_03 3:10

Yeah. Yeah. So say so they're getting this idea in part from uh the social contract theories that were popular a century earlier. Uh so they're writing in the 1700s. So if you go back a century to the 1600s, uh you get a couple of uh English political philosophers, Thomas Hobbes and John Locke, both of whom had versions of this idea of government deriving its authority from the consent of the governed. And uh so really I would say it's it's it's kind of in the 1600s that this idea starts becoming more prominent. And by the time you get to the uh American Declaration of Independence, it's moved from like ideas to practice and reality, right? Like new countries are being formed, right, on the on the basis of this uh of this idea.

SPEAKER_00 4:02

Aaron Powell So I may I ask a naive question. Are there other examples of what we would consider a democratic consensual government? I mean, the only thing I think of is like a Roman Senate. But that's not what we're saying, because that's I mean, that was more obviously power and although there I mean there were elements of it.

SPEAKER_03 4:24

So so what I would say is it's not that in the 1600s this idea sprang out of nothing. Like there had been nothing like it before. So if you were to go back and think about the period of the Roman Republic, uh there was an idea uh that the people should have some voice.

SPEAKER_00 4:43

Like nobody could become a senator through a glorious battle or something. Yeah, it may be another.

SPEAKER_03 4:49

Trevor Burrus, Jr. Yeah, it w making it to the Senate was was a tall order. Okay. But uh I can't remember have we talked about tribunes? Uh no. Yeah, let's talk.

SPEAKER_00 4:58

We can talk a little bit about the tributes. The Hunger Games. Right? Yeah. So that's tributes.

SPEAKER_03 5:03

Um there there's probably there's probably some Roman T-shirt. I think there's all kinds of Roman stuff going on in Hunger Games. I'm locked in. Got it. So uh one of the things uh that was like this tension during the Roman Republic is the people feeling like the elites uh weren't giving them a fair share, right? And a fair shake, right? And you know, the Senate was a very aristocratic organization, the consuls tended to come from the aristocratic class. And so they had ways of voting. So nominally, like the poor people who were citizens could occasionally vote, but the war rules were completely rigged against them. So they only voted like if all the other people were tied, and all the poor people, no matter how numerous, were like put in one voting block that almost never mattered, right? So they they had relatively little.

SPEAKER_00 5:51

So popular consent was irrelevant.

SPEAKER_03 5:53

Right. But that also led to discontent among uh the plebs, right, uh as opposed to the wealthier patricians. So so they came up with uh the system of tribunes. So they would select 10 tribunes who were supposed to um kind of advocate for the common man, right? And the people. And it's this kind of strange setup they had where the basic idea was that like the person of a tribune is untouchable. Like if I'm a tribune, nobody can mess with me. And if you mess with me as a tribune, uh, you know, there's gonna be riots in the street and everything, you know, gets turned upside down. So what that effectively meant is that uh the tribunes could have an effective veto on policies. Right? So suppose a an unpopular policy gets enacted uh that the common people don't like, you know, uh say they're they're confiscating poor people's property or something. Yeah. They they come up to grab the poor person's property, and a tribune just stands right in front of the house and says, no, you don't. And if anybody touches the tribune, right, they can't, right? So they basically can't enforce a law you know with a tribune getting in the way. And over time, that basically became a kind of veto, right, that the people had, right? So so historically, there are examples of checks on popular, uh, popular checks on the power of elites, right? So you can find examples of this like during the Roman Republic. Um, but it's not, you know, it ends up not being stable, which is why, you know, if you know your Star Wars, right? The Roman Republic falls, and you get the Roman, you know, the Empire uh, you know, comes next, uh, where it basically is a dictatorship, you know, and all the other stuff is kind of like just window dressing. So uh what's what's different about the American Declaration of Independence, right, is it's not merely that the people are a check on the power of government. Okay. People are the source of authority for the whole government, right? Which is a different kind of view. Like the the Roman view is a little bit more like this kind of idea of like mixed government, right? So if you go back to Aristotle and the ancients, and and this idea kind of continues on in Western civilization, sometimes there's the idea, well, like there's, you know, there's the rich, the elites, the aristocracy, they have some title to rule. There's the people, and they have some title to rule. So what you want is a mixed government that gives some power to the elites, some power to the people, and then they kind of check and balance each other.

SPEAKER_00 8:32

Okay.

SPEAKER_03 8:32

Right? Um, but that's not what this system, you know, that's not what the declaration says, right? Uh the declaration says um that to secure the rights, you know, of all people, governments are instituted among men, deriving their just powers from the consent of the governed. And if the government fails to protect the rights of all people, the people have the right to abolish the government, put a new one in its place. Right. So uh there's something fundamentally different about seeing people as the origin and source of legitimate authority.

unknown 9:08

Yeah.

SPEAKER_00 9:08

And so that and that right. And so then that brings up that big question, how do we even know if they're consenting? Right. If the people are consenting, if you know, obviously votes or whatever. I mean, it's like you're talking about the tribune. I mean, that made me think of like the Electoral College. But how do you yeah, how do you know people consent?

SPEAKER_03 9:27

But cooler, yeah. Yeah. No, that's so that's that's actually a tricky question. Okay. It's a r it's a tricky question. So the the first thing to say is that the simplest way to express consent would be if you already have some kind of governmental institution set up where you've elected representatives who can speak on your behalf, then those people can indicate whether or not you consent. Right? So to use a use a British example, uh, over time, the House of Commons, which is supposed to represent the common man, right? Although in practice, it's representing fairly wealthy people who were not members of the nobility, right? Um, you needed their consent if you wanted to tax people. Well, how do you know if the people consent to a tax? Well, did the House of Commons vote in favor of it? Right? So if the House of Commons voted in favor of it, that's some indication that the people are on board uh with supporting this tax. So in the in the case of the American colonies, they have the advantage that because they already had state legislatures in place, sure, and they kind of already had mechanisms for uh selecting representatives they can send to the Continental Congress and so forth, right? They had representative structures through which people can, you know, give their consent. Now, there's there's a deeper question, which is, well, wait a second, how did those governments get their, you know, you know, how do we know that the state legislature of Virginia uh legitimately represents the people of Virginia? And now you're kind of eventually going back all the way to this kind of state of nature argument we talked about, where uh you have people who exist without a government, and by consent, they decide, yes, we're gonna have a government placed over us. Um and so the first government to come into existence is also coming in by consent. But now you need some other way of registering whether people consent or not. And and yeah, they had they had kind of different ways for for how you could do it. I mean, the the simplest way would be express consent. So Locke talks about this. This would be where like we actually get together and formally say, I hear by consent uh to join this political society, and we're gonna create uh a legislative body and a system of laws I'm in, right? And a whole you know, a whole bunch of people do this, and then they've now actively intentionally consented to form a government. Yeah. The hard thing, and you know, David Hume, uh, a philosopher who was writing closer to the time of the American founding, uh pointed this out. Most of the time, the origins of governments are a lot messier than that, right? You don't, it's not actually uh as as neat and tidy uh as that story uh would would indicate. And so, you know, Locke's view was, uh I think a lot of founders would have would have agreed with this, you could also have a kind of tacit consent. So if there is a government there, and say the government is enforcing laws and it's protecting your property, you know, uh I inherit property from my parents. There's something about um kind of accepting those benefits and the benefits of living under a system of law that is a way of saying I tacitly consent to this government. Aaron Ross Powell Because I didn't know. Because I didn't argue. Well, no, I mean it's it's mostly because I didn't, you know. Oh, okay. You know, I don't know if you could back you know, back during the uh back during the Vietnam War protests, you know, sometimes people who were uh you know pro-war against the anti-war people would say, America, love it or leave it. Oh. You know, in other words, if you don't like it here, go to Canada, right? Or you know, go go somewhere else. Okay. Um but often there was an idea of saying that if you choose to stay, at some level your decision to stay represents a kind of consent to live by the the laws that are here. Now, David Hume didn't find that argument persuasive.

SPEAKER_00 13:27

That seems a little manipulative. And maybe I don't know. Well, no, it's that's not the right term, but like there's something a little bit compute complicated about that.

SPEAKER_03 13:37

But no, there there is. And so like so what what Hume would point out is several things, but one of them was um one, if it's an act of consent, people should know they were doing it. Right? You know, like you should be well, you should be aware of having given an act of consent. And so, you know, I'll sometimes ask students, uh as you were approaching your 18th birthday, did you think to yourself, this is a big deal? Because if I don't leave the country when I turn 18, I am consenting to all the laws of the United States government, you know, and the duties and responsibilities that come with uh citizenship. Because I'm a I'm an adult now, I'm able to, you know, legally consent to things. And nobody I talked to that had that in their heads, right, when they turned when they turned 18. You did. Uh yeah, maybe me. Maybe me. Um But uh yeah, so so there's there's there's there's a lack of whether people are aware of it.

SPEAKER_02 14:35

Yeah.

SPEAKER_03 14:35

But there's also a question of like some people stay just because they don't really have a good option to leave, right? So Yeah. Right. So so if I said, um jump 20 feet in the air, you consent to give me all your money. Yeah. You would say, well, I I even if I wanted to, I can't jump 20 feet in the air. So like, how how is that consent? Right. And so some people may not have a country that's willing to take them, they may not have the economic means to leave. Yeah. Or we might just think it's an unrealistically high burden to leave your friends and your family and everywhere you've been. Um so all of that is to say there are, you know, if you if you take in that kind of individualistic way, um, it becomes um a little bit problematic. But I think I think what Locke and I think what the what the founders had in mind was something a little bit more plausible than that. So um, you know, in the old days, uh, people who own property, you know, could go and they would kind of register themselves, they would participate in, say, like a town meeting, and they'd vote at that meeting. And I think you could say, well, doing that really is a very intentional act of saying, like, I'm choosing to participate in this political community. Something like that might, you know, might be regarded as a type of consent. But you know, practically speaking, what the colonists have going for them is they actually already do have legislators set up, right? And so they already have a mechanism through which they can register their consent, right? Uh, because you know, the the delegates who voted for this resolution um at the Continental Congress had been authorized by their state legislatures, right, to vote in favor of it.

SPEAKER_00 16:27

But and and this is maybe off topic, but I'm just thinking there are a lot of people still that didn't agree. I mean, um there had to have been a bunch of people sitting in New York who are like, no, we like the British. Yes. You know, we don't I I get what you're trying to say here, but no, we don't. And so their consent is I mean, there's a lot of Yeah. The idea of consent is complicated, I guess, because there's I mean women. Yeah. There's non-landholding people, you know, plenty of people of different socioeconomic statuses and people of different beliefs and so that consent. It it it it does I can see how can that there can be a lot of people arguing the other side of that, but yeah.

SPEAKER_03 17:10

No, so so I think I think what you're putting your finger on is an important point, right? Which is at some level, you might think government by consent, if we take it individualistically, means that if each if there's any individual who doesn't consent, that individual is not bound. Right? You know, so in other at an individual level, if I don't sign the contract, I'm not bound. Right. Um and this is a little bit different because if a majority of the legislature says yes to something and the legislature that you voted for said no, but got outvoted, you're still stuck with it. Right. So so there is some precedent for this. You know, so for example, uh, you know, in in Locke's version of this, and and Locke's version is closer to than Hobbes's, you know, Hobbes also believed that government derives its consent from the governed. But he also thought, one, it was fine to extort consent by threatening to kill people. You know, so you know, you put a sword to somebody's neck and say, do you consent to me being your ruler? Oh, yes, yes, I do, right? Hobbes had no problem with that. The the second concern about Hobbes is he also thought consent was something you can alienate, like you could give it up once and for all to someone else. Um, whereas Locke's view, there's a there's a certain way in which liberty is an unalienable right, yeah, meaning I can't once and for all give up my liberty forever, right? There's there's a portion of my liberty that I have to always um that I have to always maintain. So as Locke is working this out, it's like, okay, it wasn't the state of nature. I had rights to life, liberty, and property. So my property is mine. Now I've consented to form a government. What happens if the government starts wanting to tax me and take some of my property? Right. And uh Locke makes it clear in the second treatise of government that the consent of the majority is sufficient for taxation and the taking of property. So even though I didn't individually consent, right, if the people as a whole consented, uh Locke thought that was sufficient. Now, he also would have put some restrictions on what the money could be used for, right? It needs to be used for protecting society and promoting the public good and things like that. Um but I think something like that idea is in play. And in many ways, it does kind of go back to these older ideas of what it means to be a republic, where it wasn't so much this kind of individualistic way of understanding it as so much as saying it's really important that the people have some way, right, of being able to assert their authority and say, no, we're not doing this. Right. And um and you know, the Constitution we eventually get, and and this was true of the Articles in Federation II goes a step further than that. Uh, it's not merely the people have a veto, they actually have the ability through their legislatures to propose the laws to begin with, right? And so um there's something about having representative government that I think they would have said kind of builds consent into uh the very structures of society.

unknown 20:12

Yeah.

SPEAKER_00 20:13

Then what would be I'm just thinking about I'm honestly I'll tell you what what came to my mind when you're saying all this is I've seen on social media these people with these sovereign citizen uh you know defenses, you know, if they're going in front of a judge and they're like, well, no, I don't, I don't I don't acknowledge your authority. You know, you have all these people that, you know, it it's still there, but like what are I mean, you you're dealing with trying to put a blanket on an entire people, you know, a government people that you're a a a group of people, you're trying to put a blanket on all of them, a governing blanket. Right. And you're not gonna have complete agreement. You're not gonna have but you're trying to give them some authority, the people. Right. But like what would that I mean I don't know, it just seems extremely messy, but also like uh I don't know, idealistic, I suppose. I don't know what would be some of the implications of all that. Like Right. Yeah, it doesn't seem like there's a lot of examples pre this historically for us to say, oh yeah, we can we have a real roadmap here.

SPEAKER_03 21:22

Yeah. Well well, one of the things, I think one of the things to say, I I in in the examples you're talking about, like I said, there is this extremely individualistic way of reading life, liberty, and property. Right. Um and I mean there absolutely is an individual component to it. I mean, they really did believe individuals had rights to have their life not taken from them, right? That individuals should have some liberty to live their lives as they see fit, to be able to be secure in owning property. Like, I mean, they they they thought those things, but they also were committed to the idea that a group of people is coming. Coming together, who has the authority to create a new kind of society where they engage with each other as political equals. And so, you know, like if we if we let's go back to the actual text of the declaration here for a second. So, you know, if we're in, you know, this uh uh kind of long section um where it says, uh, you know, after we said, you know, governments derive their just powers from the consent of the governed, it then says that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it and to institute new government, laying its foundation on such principles and organizing its powers in such form as to them, plural, shall seem most likely to effect their safety and happiness. So what's really important there is that the declaration is inserting the right not just of individuals to have their own individual autonomy, it's also asserting the right of a people to institute systems of government and that they get to have some agency in deciding what that government is gonna look like. So practically what that means is when the colonists come to the conclusion we don't think being subjects of the British king is a viable path anymore for being secure in our liberties. Um therefore, we have the right to say we're gonna form a different government. We're not, we're not subject to that one. And we now get to decide what type of government we collectively think is most likely to secure our safety and happiness.

SPEAKER_01 23:44

Yeah.

SPEAKER_03 23:44

And so that means we have the right to write the Articles of Confederation. And if those don't work out, we have the right to scrap those and write the Constitution instead. Um and in principle, if the Constitution doesn't work out, the people have the right to say, okay, let's try 3.0 um and come up with something different. But that's not an individual right. That is kind of the collective right of the people as a whole to decide what sort of government they want to live in. And obviously, if you're living under government, then that's gonna have implications for individuals. We're gonna have to submit to the law and and so forth.

SPEAKER_00 24:21

Yeah. Yeah, that's great. Uh complicated. Yes. But good. So, okay, Alex, what are we gonna talk about? What are we gonna be talking about next time then?

SPEAKER_03 24:31

Uh so in uh the next episode, we're gonna be talking about uh the idea of revolution, right? How do you know when it's time to have a revolution?

SPEAKER_00 24:40

All right. Here we go.

SPEAKER_03 24:42

Thanks. The views expressed on this podcast are those of the speakers and not necessarily those of Iowa State University. Thank you for listening.