Consent of the Governed vs. Self-Rule

From "The Trouble With Elections: Everything We Thought We Knew About Democracy is Wrong," Chapter 6.8

Consider the two phrases: “rule with the consent of the governed,” and “self-rule.”  These terms are frequently used interchangeably, as if they were two ways of saying the same thing. But, on closer examination, they are completely different concepts. There is a fundamental distinction between consenting to an elite who would govern the people, and everyday people being empowered to govern themselves. 

As noted above, when the American colonies declared their independence from Britain, the self-governing democracy of ancient Greece was not the inspiration. The primary philosophical foundations underlying the new nation were the Enlightenment concepts of philosophers like John Locke. The long-standing notion of the “divine right of kings,” was replaced with the “natural rights” theory that government derived its “just powers from the consent of the governed.” While revolutionary at the time, this platitude is now so widely accepted around the world that even many dictators pay lip service to it, insisting that their people have consented and want them to rule.

Being grounded in the natural rights theory, in which government legitimacy was to be achieved by the (assumed) consent of the governed, the framers took it for granted that there would be a discontinuity between those being governed and those doing the governing. Mere consenting is fundamentally different than governing. Cynthia Farrar writes in Origins of Democracy in Ancient Greece,

“The grounding of legitimacy in consent is one reason why the founders of modern republics never seriously considered the use of lot.”

Bernard Manin comes to the same conclusion in his landmark book The Principles of Representative Government. Others reject this analysis. The Enlightenment notion of “consent” was not initially even based on elections at all. It was at best hypothetical, with theorists like Thomas Hobbes observing that the sovereign, who might be a hereditary monarch,  could be deemed to have tacit consent as long as the people didn’t emigrate or rise up in rebellion. However, The Scottish philosopher David Hume in 1748 dismissed this concept of ‘tacit’ consent, and Jeremy Bentham after the French Revolution wrote his condemnation of natural rights as “rhetorical nonsense – nonsense on stilts.” 

By the time the framers were drafting a constitution, the idea that some sort of election process could instantiate consent (rather than the mere absence of a revolt) was common in America. Even if we accept, for argument’s sake, that the goal is simply to win consent, an important question that many political thinkers glossed over was “Who exactly are ‘the people’ who are to give consent?” Like the Athenians, the men who established the United States of America did not consider women or slaves to be politically relevant parts of “the people,” or demos. Indeed, the ironic fact that the central figures, such as Thomas Jefferson, George Washington, and James Madison were slave-holders, is well known. Most of the founders and framers considered some sort of property ownership to be an essential characteristic of “the (politically relevant) people.”  The common view among the American leaders was that only propertied men could be trusted to vote. Most political Enlightenment theorists were themselves well-educated elites and, in the age before widespread public education, had disdain for the concept of a broad voting franchise, let alone actual democracy. What’s more, virtually every political author the framers might have read embraced the view that property rights were the foundation of liberty — and that the unpropertied were subject to control by the propertied and thus incapable of exercising independent judgment. They reasoned that unpropertied men could simply be ordered to vote a certain way by their employer, or risk losing their job. Note that voting was not typically done by secret ballot at this time.

Some of the Framers asserted that a more democratic constitution could ironically increase the power of the wealthy (at the expense of the professional classes). One of the key authors of the Constitution, Gouverneur Morris, a delegate from Pennsylvania, argued that in a democracy the rich could use their wealth to buy the votes of the poor, or whip up the people’s passions, and make these the instruments for oppressing them, against their own and society’s best interests. Thus, so the argument went, the poor needed to be deprived the vote for their own good, so the rich wouldn’t manipulate their individual votes against their collective interests. Madison argued that if the propertyless had the right to vote, “they will become the tools of opulence and ambition.” (Notes on the Debates in the Federal Convention, August 7 [1787] 2006) John Elster in his Securities Against Misrule: Juries, Assemblies, Elections argues that if the concern was the rich buying votes, this could be handled by the implementation of the secret ballot, which although not standard at the time, was certainly known by the framers. Alex Keyssar observes in The Right to Vote: The Contested History of Democracy in the United States, that the framers

“were performing an impressive feat of ideological alchemy: providing an ostensibly egalitarian defense of an overtly anti-egalitarian policy.” (Keyssar 2000, 11)

Many of the framers making this argument on one day also expressed a concern on another day that the lower classes, rather than doing the bidding of the rich, would indeed pursue their own interests leading to a redistribution of wealth. The sincerity of these Federalist’s analysis may be suspect, but it can be argued that the domination by wealth, if not the literal buying of votes, is exactly what has come to pass with the science of campaign and media manipulation, and is the reality of modern electoral politics.

So, as long as the propertied men (who were the ones proclaimed to be capable of exercising independent judgment) gave some sort of consent in an election, that was considered tantamount to “the people.”  With the seizure of indigenous lands by colonists, a fairly high percentage of white men owned at least some land. The exclusion of unpropertied whites along with women, slaves, and indigenous people in America meant that fewer than a quarter of adults had the right to vote in 1790, and in many states far fewer than that. In his tome, The Life and Death of Democracy, historian John Keane neatly encapsulates how the Framers of the Constitution

“thought in terms of the tricky political problem of how to go beyond a polity run by a monarch and a rump parliament, by building a republican form of government that kept its source of sovereignty — ‘the people’ — at arm’s length from the levers of governmental power.”

The franchise slowly expanded to include former slaves and women, but even today the oligarchic nature of elections (in which it is generally those with money, high status, thirst for personal power, or celebrity who can run and win elections) assures that “the people” as a whole are still kept at arm’s length from those levers of governmental power.

Even if one were only seeking consent (rather than self-rule), regardless of how “the people” was defined, how should consent be determined? Does consent mean that every single (politically relevant) resident must affirmatively give their approval in order for a government to be legitimate? Clearly this is not what the Enlightenment philosophers, nor the American founders had in mind.  John Locke suggested approval by a majority of politically relevant residents would be sufficient – or even a majority of merely their representatives, could give legitimacy.  Does choosing among the nominated candidates in an election imply consent by the voter in the entire system that proffers the election? While it is common for people to rally around the flag in times of war or crisis, the Rasmussen Reports polling firm has regularly asked Americans if they feel the federal government “has the consent of the governed.” In August of 2013, it reached an all-time low with just 17 percent agreeing. This means that most people who participated in elections did not feel that their mere voting granted consent. By 2018, the Rasmussen poll found that despite the conflict between Democrats and Republicans during the Trump presidency, the percentage had risen to the more typical 24 percent. 

The framers of the Constitution expressly avoided asking the general population of the 13 states to give direct consent to the new governmental plan, such as by referendum. Instead, they established a system of state-by-state conventions for ratification, with just nine states being sufficient for enactment (in contradiction to the unanimous approval requirement stated in the Articles of Confederation). It was understood that few if any of the lower classes would be delegates in the conventions (and certainly no women or slaves). The framers pinned their hopes on the notion that the more educated and well-to-do delegates would agree with their vision of how the United States should be governed. Interestingly, in the one state that insisted on holding a referendum, Rhode Island, the Constitution was rejected.  Even to this day, the United States is one of the only modern electoral governments that has never held a national referendum on any matter.

As with modern medical guidelines, it can be argued that to be meaningful, consent must be informed consent, rather than simple “off-the- top-of-the-head” plebiscite voting. Ratification conventions, with opportunity for deliberation, in theory, permitted such informed consent, but not by the bulk of those who would be governed by the new regime, nor by a representative sample. Thus, we see that the dilemma between broad participation and thoughtful deliberation that exists at the policy-making level recurs at the level of general consent as well. Although the Constitution begins with the stirring words “We the people…” the vast majority of Americans were never consulted nor asked to consent.

There is also a distinction between giving consent to a specific government (or set of rulers) and consenting to an overarching framework of government that will establish the means of selecting and consenting to a series of future governmental authorities into the indefinite future. A people might consent to be governed by a specific beloved king, but that is not the same as consenting to be governed by all future royal heirs. Some political philosophers of the time, such as Thomas Paine, rejected the notion that consent by a present generation could in any way bind future generations. Jefferson argued that the Constitution should only persist for 19 years (one generation), with future generations amending or adopting new constitutions of their own.