by Joe Miller
Last week, I talked about consent as one of the grounding ideas of Western liberal democracies.
That argument is that the ability to make choices is what makes someone capable of being moral. To violate someone’s ability to make choices is to treat them like an object rather than as a person.
Applying that insight to the level of government entails that (1) governments require the consent of the governed and (2) governments retain their legitimacy only insofar as they continue to respect their citizens’ ability to make choices.
But that account leaves us with some questions: How will we know if the people have consented to any particular government? What form would that consent take? What does it even mean for someone to give consent?
It turns out that we generally operate with a few different meanings of consent.
Some kinds of consent are pretty straightforward. When I sign a contract, I am consenting to abide by the terms of that contract. At my wedding, I consented (“I do”) to a particular set of promises to Caroline. Every business transaction rests on consent – I will give you X dollars in exchange for Y goods and/or services.
Promises are another type of express consent. When I agree to pick you up from the airport or to help you move, I am consenting to do those things. You can then call me out if I fail to show up.
Philosophers call these sorts of acts express consent. They involve explicit acts in which we publicly agree to a particular arrangement.
The trouble here is that very few citizens have expressly consented to our government.
Civil servants, members of the military and naturalized citizens all expressly swear to protect, defend and bear true allegiance to the Constitution.
But if you were born in the United States and have never held a government job or joined the military, then the chances are pretty good that you’ve never stood before a representative of the government and expressly consented to the American system of government.
“Wait a minute, though,” you might say. “If you live in this country, then you’re taking advantage of the things it offers me. You use its roads and schools. You are kept safe by its military and its police. You receive benefits like Social Security or unemployment or agricultural subsidies. You pay taxes. If you don’t consent, then stop taking that stuff and get out. Otherwise, you’re consenting to it.”
That sort of argument rests on what philosophers call tacit consent.
We rely on tacit consent for a lot of things. A phrase like, “If no one objects, we’ll move on” is a call for tacit consent. You give your consent by simply staying quiet and not objecting.
Another example: cadets at West Point are free to leave the academy at any point in their first two years with no further obligations. But on the first day of classes of cadets’ junior year, they are committed to spending seven more years in the Army. They can either finish their degree and spend five years as an officer or drop out and spend seven years in the enlisted ranks.
By showing up to class that first day of year three, they tacitly consent to seven years of Army service.
But not every case of failure to object counts as consent. (Warning: discussion of domestic violence ahead.)
Imagine a case in which one spouse abuses their partner. Now imagine that this abuse persists for an extended period of time.
I think we would all find it perverse for the abuser to argue that the fact that the partner’s failure to leave the marriage means that the partner consented to the abuse and therefore the abuser did nothing wrong.
To use a lighter example, suppose that I claimed that by reading this far in my column, you have consented to pay me $100. No court in the land is going to honor that claim. Tacit consent works only when (a) I know in advance what it is that I’m consenting to and (b) I know exactly when I must either object or tacitly consent.
Neither of those conditions pertains when it comes to consenting to the U.S. government. We lack both a clear mechanism for registering our objection and a clear time by which that objection must be registered.
We’re left with what looks like a serious problem. Western liberalism requires the consent of the governed. But (most) citizens have not expressly consented to it, and we completely lack any sort of mechanisms for obtaining tacit consent.
Luckily, there’s a solution. It involves cake! But you’ll have to tune in next week to find out how it works.
