Thursday, August 11, 2011

The Hard Question

Consent to constitutional governance varies by degrees and from person to person. Different levels of consent give different levels of justification. The hard problem is justifying the use of political violence against someone who expressly objects to it.

We respect the right to defend against a tort even absent the tortfeasor's express agreement, true. Everyone impliedly consents to the fundamental principles of tort law; they offer background rules for human conduct on which all socialized people depend. Our implied consent to tort law counts for a lot. It trumps merely hypothetical consent to the contrary, for instance. Some people offer fancy theories about that to which we would consent (usually something that benefits them). The implied protections of tort law trump such arrogant presumptions.

How, then, can a statist justify initiating coercion? Note that tort law boasts only a moderately powerful justification--one founded on implied consent. Express consent has greater power to justify. Therefore, the implied consent justifying tort law gives way before express consent, as when sparring partners tap fists before attacking each other. (Funny thing I've noticed about the BJJ studio I frequent: Lots of fighting; smiles all around.)

Have we expressly consented to constitutional governance? Some individuals undoubtedly have, such as those who have sworn oaths to uphold the Constitution. Perhaps run-of-the-mill citizens and residents show their implied consent to the authority of the U.S. federal government simply by not emigrating. And eloquent arguments have been made that the Constitution, if interpreted well, merits our hypothetical consent. See, e.g., Randy Barnett on the presumption of liberty.

Against those measures of consent, we hear polls suggesting that "consent of the governed" has fallen to a new low. We hear strong arguments that mere residency implies nothing about political allegiance, and philosophical claims that nobody would agree to a system of institutionalized coercion.

Consent weighs on both side of the scale measuring the justification of constitutional governance, both for and against. I cannot answer for anyone else about justifying the Constitution; you must answer for yourself. But with graduated consent theory, I offer you a way to tackle the question.

(With thanks to Sasha Volokh for stimulating discussion.)


Gil said...

"For a representative assembly is normally chosen only by a part of the nation, and each law is approved by only a part of the assembly: and it would be ridiculous to say that a man has assented to a law passed by a mere majority of an assembly *against* one member of which he has voted."
--Henry Sidgwick

Tom W. Bell said...

Agreed, Gil, that nobody should blithely claim we've assented to laws enacted by part of a representative body elected by some of our neighbors. That said, even such attenuated bonds may claim weak proofs of consent--more so, at least, than the edicts of a madman abroad who claims to rule our lives. It's a question of degree, and of strengthening consent when and where we can.

jimbino said...

I cannot honor a Constitution that is interpreted to mean that the majority has the right to confiscate the wealth and income of the minority for its own ends.

I am thinking in particular of the Amerikan rule that singles and the childfree are heavily taxed to support the breeding and the brood of the majority.

All this while we are rejecting foreigners who show up potty trained and ready to work.

It is no excuse to support breeding as necessary to continue the race. Who the hell says the human race has to be continued (not the Constitution) and how is its proliferation now threatened?

The plants, animals and childfree of the world will rejoice once we kill off our pronatalist policies.