The Constitution: Why Some Refuse To Consent

The theory of consent of the governed holds that a government's legitimacy and moral right to use state power is justified and lawful only when consented to by the people or society over which that political power is exercised. This theory is in stark contrast with the divine right of kings and has been invoked against colonialism. The idea of consent of the governed has been discussed by political theorists for centuries, with early Christian author Tertullian claiming that It is not enough that a law is just, nor that the judge should be convinced of its justice; those from whom obedience is expected should have that conviction too. However, in recent times, Americans have moved away from the belief in the consent of the governed, with many feeling that taxes and policies are being forced upon them without their consent or that of their representatives.

Hypothetical consent: obligation to obey depends on whether people would consent to a government in a 'state of nature'

The theory of consent of the governed holds that a government's legitimacy and moral right to use state power is justified and lawful only when consented to by the people or society over which that political power is exercised. This theory is in stark contrast with the divine right of kings and has been invoked against the legitimacy of colonialism. The "consent of the governed" is a fundamental postulate of the Declaration of Independence, and it relates to the creation of government and the constitution-making or constituting stage.

The theory of hypothetical consent of the governed further asserts that one's obligation to obey a government depends on whether the people, if placed in a state of nature without government, would agree to said government. This theory has been rejected by some scholars, who argue that government itself can commit aggression, and that creating a government to protect people from aggression would be akin to choosing to be attacked by a lion instead of polecats and foxes.

In the American context, the idea of consent of the governed was taken seriously during the Founding era, with Americans believing that their consent could be conferred by their representatives. This belief has changed over time, with Americans now expressing disapproval of taxes and policies, claiming that they did not choose for the government to implement them. During the Founding era, the consent of one's representatives was considered equivalent to one's own consent, as seen in the Massachusetts Constitution of 1780.

The concept of hypothetical consent suggests that individuals' obligation to obey the government is contingent on their hypothetical consent to it in a state of nature. This theory, however, faces criticism due to the potential for government aggression and the questionable assumption that individuals would consent to a government that may infringe on their freedoms.

Divine right of kings: the theory of consent is contrasted with this idea of absolute monarchy

The divine right of kings is a political and religious doctrine that asserts a monarch's rule is derived from divine authority rather than earthly power structures. This theory of kingship, prominent in Western Christianity until the Enlightenment, holds that a monarch's right to rule is granted by God, placing them beyond the judgement of any earthly authority, including the will of the people or the aristocracy.

In contrast, the theory of consent, also known as the consent of the governed, is a political philosophy that posits that a government's legitimacy and moral right to wield power are dependent on the consent of the people or society it governs. This theory, which has been invoked against the legitimacy of colonialism, asserts that the power of rulers is delegated by the people and can be revoked without their consent. The concept of consent is deeply rooted in democratic ideals, with elections serving as a mechanism for the people to grant or withhold their consent for those seeking to represent them.

The tension between these two theories of political legitimacy has been a significant factor in historical conflicts, notably the English Civil War in the 17th century. The Royalists, upholding the divine right of kings, asserted that "all Christian kings, princes and governors" derive their authority directly from God. In contrast, the Parliamentarians argued that the king's authority was the outcome of a contract, explicit or implied, between the sovereign and the people. This contract theory, exemplified by the English Levellers, emphasised the conditional nature of the people's obedience, contingent on receiving just and lawful governance.

The idea of consent can be traced back to early Christian authors like Tertullian, who wrote, "it is not enough that a law is just, nor that the judge should be convinced of its justice; those from whom obedience is expected should have that conviction too." The notion of consent was further developed by political theorists such as Nicholas of Cusa in the 15th century and influential Huguenot tracts in the 16th century, which asserted the people's role in establishing the conditions for the king's rule.

The divine right of kings, in its absolute form, implies that the monarch's power is unlimited and not subject to earthly constraints. This notion was notably associated with Henry VIII of England, who declared himself the Supreme Head of the Church of England, exerting unprecedented authority. The theory of consent, on the other hand, recognises the fundamental power of the people, viewing their consent as the source of legitimate political power. This theory aligns with democratic principles and safeguards against unchecked power by emphasising the conditional nature of the ruler's authority.

Colonialism: the theory of consent has been invoked against the legitimacy of colonialism

The theory of consent of the governed holds that a government's legitimacy and moral right to use state power is justified and lawful only when consented to by the people or society over which that political power is exercised. This theory is in stark contrast with the divine right of kings and has been invoked against the legitimacy of colonialism.

The earliest use of the term "consent of the governed" can be traced back to the writings of Scottish Catholic priest and Franciscan friar Duns Scotus in the 1290s. The concept was later elaborated on by political theorists such as Nicholas of Cusa in the 15th century and gained prominence during the English Revolution with the Levellers upholding this principle. The idea that the power of kings and magistrates is derived from the people and can be withdrawn without their consent was a radical departure from the divine right of kings.

The theory of consent has significant implications for colonialism, which often involves the imposition of foreign rule on indigenous populations without their consent. John Locke, whose ideas influenced the founders of the United States, believed in a state built upon the consent of "free and equal" citizens, and that any other form of government would lack legitimacy and rational-legal authority. This belief in the consent of the governed was also a fundamental principle in the American Revolution, as expressed in the Declaration of Independence, which complained of the King "imposing taxes on us without our consent".

The legitimacy of colonialism has been questioned by thinkers such as Mill, who recognized that foreign rule could lead to injustice and economic exploitation of indigenous peoples. Mill identified several reasons why foreign powers are ill-suited to governing colonies, including a lack of knowledge of local conditions, cultural and religious differences, and a tendency to sympathize with other colonists instead of the native populations. These factors can result in tyrannical rule and undermine the very legitimacy that the colonial enterprise seeks to establish.

In conclusion, the theory of consent of the governed stands in opposition to colonialism, as it asserts that the power of any government, including colonial administrations, is derived from the consent of the governed. The absence of consent from indigenous populations in colonial contexts undermines the legitimacy of colonial rule and highlights the inherent power imbalances and injustices that colonialism perpetuates.

Propaganda: the public may be manipulated by subconscious desires, affecting their votes and consent

Propaganda is a powerful tool that can be used to shape public opinion and influence political choices. The public can be manipulated by appealing to their subconscious desires, which can then affect their votes and consent.

Propaganda is a form of communication that aims to distort the representation of reality and manipulate people's perceptions and behaviours. It is often used to further a specific agenda or desired outcome. One of the key figures in the study of propaganda, Edward Bernays, believed that propaganda was a way to manipulate the public's subconscious desires and influence their votes. Bernays, the nephew of a famous psychologist, understood how to manipulate people's feelings and spread ideas at a subconscious level. In his book, The Engineering of Consent, he discusses how the public can be manipulated by their subconscious desires to vote for a particular political candidate.

Propaganda techniques can include the use of language and mannerisms that appeal to the average person. For example, a politician may use colloquialisms to create a sense of belonging with a certain audience. This is known as the "plain folks device". Propagandists may also use famous people or attractive, happy individuals in their messaging, suggesting that if people follow a certain ideology, they too will be happy and successful. This technique is often used in advertising but can also be applied to political messaging.

Transfer propaganda, or association, is another technique where symbolism is used to project positive or negative qualities onto something else. This can be used to make an idea, product, or person more acceptable or to discredit them. For example, a political actor may use algorithmic technologies to manipulate public opinion and micro-target specific groups with personalised messages.

The power of propaganda lies in its ability to appeal to people's emotions and subconscious desires. People are often driven by their emotions, and propaganda can tap into these emotions to make its message more appealing and believable. By presenting carefully selected truths mixed with ideas that resonate emotionally, propagandists can influence people's thoughts and behaviours without them realising it. This is different from persuasion, which aims to inform and change beliefs through conscious attempts. Propaganda, on the other hand, often results in people complying with the behaviour urged of them publicly while privately rejecting the message.

In conclusion, propaganda can be a powerful tool to manipulate the public by appealing to their subconscious desires. By using specific techniques and targeting people's emotions, propagandists can influence votes and shape public opinion, potentially affecting the consent of the governed.

Legislative consent: the equivalence between legislative and individual consent has been questioned

The concept of "consent of the governed" is a fundamental principle in political philosophy, suggesting that a government's legitimacy and moral right to exercise power is justified only when consented to by the people or society over which that power is exerted. This theory is in stark contrast to the "divine right of kings" and has been used to challenge colonial rule.

The idea of "consent of the governed" is not a new one. It can be traced back to early Christian author Tertullian, who wrote in his Apologeticum:

> "It is not enough that a law is just, nor that the judge should be convinced of its justice; those from whom obedience is expected should have that conviction too."

This principle was also central to the American Revolution. The Continental Congress, despite lacking explicit legal authority, was delegated with national governing functions by the states, including appointing ambassadors, signing treaties, and raising armies. The Declaration of Independence asserted that governments derive their just powers from the "consent of the governed", not only in constitution-making but also in specific policies.

However, the equivalence between legislative consent and individual consent has been a complicated issue. Historically, Americans took seriously the idea that their consent could be conferred by their representatives. For instance, the Massachusetts Constitution of 1780 articulates this equivalence. John Dickinson, in his Farmer's Letters, referred to taxes set by the British Parliament as "free gifts of the people" to the King.

Nevertheless, legislative excesses during the 1780s, particularly the problem of majority faction, led to concerns about the distinction between legislative and individual consent. James Madison, in Federalist No. 10 and No. 51, implicitly drew a line between ordinary legislative politics outcomes and the preservation of individual rights, indicating a recognition that legislative and individual consent may not always align.

In modern times, the belief in the "consent of the governed" has shifted. Americans now often complain about taxes and policies they disapprove of, even if their legislatures adopted them. This shift highlights a growing disconnect between legislative consent and individual consent, with many individuals feeling they have not genuinely consented to the laws and taxes enacted by their representatives.

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