Does the ‘Consent of the Governed’ Matter Anymore?
This is the first in a series of posts that will examine issues and themes that will not be discussed in the upcoming election.
At a time when America is questioning itself more than at any point that I can recall in my life, it occurs to me that the real issues that should be debated are not even being raised by candidates. Immigration, the deficit, Obama’s “socialism,” health care, and the class warfare being waged by both sides are so much chum to be churned by liberal and conservative ideologues until the frothy, bilious, smelly mess that is our politics today overflows with hatred and hysterical denunciations.
It is ridiculous to say one side is more at fault than the other, or that one side is worse than the other, or that one side started it. In the end, who cares? The result is a fantastically dangerous game played by the powerful who take advantage of the ennui engendered by this tiresome, depressing state of affairs to impose their idea of control on American citizens.
We have made trade-offs over the past half century, giving up some individual liberty for the good of the whole. In many cases, this has resulted in a fairer, more decent, more equal America. Some conservatives may disagree but in reality, this is close to the 18th century vision of the Founders. While recognizing the enormous power of government to do harm, they also recognized that government had a role to play in protecting minorities.
At that time, minorities were political, not racial or gender, or sexually oriented. Nevertheless, the concept that, if left unchecked, some Americans would deny the minority among them fundamental rights was well understood by the Founders and they created a government that would be strong enough to protect those rights.
But somewhere along the way, we’ve gone off the rails. The power of government is being used not so much to guarantee rights as it is to effect control. Choices are limited, property expropriated, the will of one faction imposed on another – all this and more resulting in a significant loss of personal liberty; not in the name of “fairness” or “equality,” but simply because power elites have the ability to manipulate government to serve their own selfish ends. Corporations, Big Labor, organized pressure groups, – all claiming their machinations are for “the good of the people” or are necessary for a strong economy, or will save us from global warming/obesity/cancer/iron poor blood and any other societal ill that acts as a beard for someone’s idea of doing what is best for the rest of us.
We know this. We sense this is true. But we pretend we are powerless to stop it. It is this cynicism that is being used to destroy the foundations of personal liberty and turn the people into virtual serfs.
More importantly, the vision, the tradition, and the fundamental guiding principles of the republic have been subsumed by the desire of public and private elites to milk the treasury or put the fix in on the system to advance their own personal or collective agendas, all the better to improve their own station in society at our expense.
It begs the question; are we still a nation where the consent of the governed is required for government to act? Have we ever been? It’s a trick question, in part because it is generally understood that citizens “give their consent” by voting for our representatives from the state house to the White House. In this respect, we have a “representative democracy” based on the trust we place in our leaders to generally act in our interests when voting on legislation affecting the national or local interest.
But there is nothing in the Constitution that states the government needs our “consent” for anything. Indeed, the phrase itself is found in the Declaration of Independence – a glorious expression of American ideals without any force of law whatsoever. It is in our traditions as a republic and a foundational principle that the ideals that animated the revolution be carried over and incorporated into the governance of the country. But as far as a Constitutional construct, “consent of the governed” doesn’t exist.
Instead, we grant our consent to be governed not as a result of law, but of an implied “social contract” between the people and the government. There is a grand philosophical tradition regarding this social contract in western political thought. Locke, Hobbes, Hume, Rousseau, and Oakshott, among others, believed that the legitimacy of government depended on keeping its end of the bargain. This could variously be defined as the notion that the people surrender some or all of their “sovereignty” in exchange for the rule of law which, ideally, will generate social order.
Implied in the American social contract is the concept of natural rights superseding, or being equal to civil rights. Again, the reliance on natural rights to help define our social contract is part of the Declaration of Independence, and only inferred in the Constitution. But tradition and the clear thinking by the Framers of the Constitution on the question of natural rights gives them a force beyond law.
So what does all this theorizing have to do with the practical political matter of citizens regaining control of their own government? The social contract is clearly inoperative. When the law is manipulated by those with the wealth and connections to twist its meanings so that it benefits only them, or a small number of elites, there is no “consent of the governed” as originally understood, nor can such be extrapolated in any way from the current state of affairs. If we understand the “rule of law” to mean equality under the law as well as the more translucent concept of equal justice under the law, those who join with political leaders to, for example, fix it so that they can loot the treasury if their financial skullduggery blows up in their faces, are complicit in an open violation of the social contract.
That which is not vouchsafed all should be allowed for none. Perhaps that’s a place to start when it comes to redefining our broken contract with the government. I frankly don’t know. I don’t pretend to have answers, only the desire to initiate debate. Whether that’s enough to save us all – right, left, liberal, conservative, moderate, or libertarian – from losing something very rare and precious and yes, exceptional, I don’t know.
Next: The Middle Class has been Disappeared