Government requires make-believe. Make believe that the king is divine, make believe that he can do no wrong or make believe that the voice of the people is the voice of God. Make believe that the people have a voice or make believe that the representatives of the people are the people. Make believe that governors are the servants of the people. Make believe that all men are equal or make believe that they are not.1
—EDMUND S. MORGAN (1988)
THE CONSTITUTION begins, “We the People of the United States … do ordain and establish this Constitution for the United States of America.” This was not idle rhetoric. These words were offered to claim legitimacy for the document that followed. The founders’ claim of legitimacy was based not on the divine right of kings, but on the right of “We the People” to govern themselves. They declared that “We the People” had exercised their rights and manifested their consent to be ruled by the institutions “constituted” by this document. They made this declaration because they believed that the consent of “We the People” was necessary to establish a legitimate government and that, upon ratification, they would have gained this consent.2
I challenge the idea, sometimes referred to as “popular sovereignty,” that the Constitution of the United States was or is legitimate because it was established by “We the People” or the “consent of the governed.” I deny that the conditions needed to make this claim valid existed at the time the Constitution was adopted or ever could exist. Though “the People” can surely be bound by their consent, this consent must be real, not fictional—unanimous, not majoritarian. Anything less than unanimous consent simply cannot bind nonconsenting persons. Moreover, if taken too seriously, the fiction of “We the People” can prove dangerous in practice and can nurture unwarranted criticisms of the Constitution’s legitimacy. To understand what constitutional legitimacy requires, we must first consider what it means to assert that a constitution is “binding.”
Sometimes we speak as though the Constitution itself is (or is not) binding on the citizenry. Yet, with rare exception,3 the Constitution does not purport to bind citizens; rather, it binds the government itself. As Rufus King, delegate from Massachusetts, stated to the Constitutional Convention: “In the establishment of Societies the Constitution was to the Legislature what the laws were to individuals.”4 Though the Constitution is law, it is law in a secondary, not a primary sense.5 It purports to bind government officials, not private individuals.
The real question, then, is not whether the Constitution is binding on citizens, but whether citizens are bound by the commands or laws issued by officials acting in its name. Does the fact that a “law” is validly enacted according to the Constitution mean that it binds one in conscience? In other words, is one morally obligated to obey any law that is enacted according to constitutional procedures? Or is the only reason to obey a valid law the fear of punishment should one be caught in disobedience?
While some legal philosophers disagree (as we shall see in chapter 2), most citizens think that when a command is called a “law,” it carries with it a moral duty of obedience, though this duty may not be absolute.6 Certainly most lawmakers and government officials assert that citizens have a moral duty to obey properly enacted laws. When this is the common perception of “the law,” and when the system that produces these legal commands lacks the requisite institutional quality—whatever it may be—to justify this favorable presumption, lawmakers in such a society will get a powerful benefit of the doubt—or “halo-effect”—to which they are not entitled. Therefore, if the term “law” is to carry the implication that there is a moral duty to obey, then the requisite binding quality must go in before the name “law” goes on.
A lawmaking system is legitimate, then, if it creates commands that citizens have a duty to obey. A constitution is legitimate if it creates this type of legal system. What quality must a constitution have to make it legitimate in this sense? Why do citizens have a duty to obey the commands of those who are designated by a constitution as lawmakers and enforcers? All government officials and most constitutional scholars avoid explicitly addressing these questions.
If pressed for an answer, most people would probably rely on “the consent of the governed” or what is sometimes called “popular sovereignty.”7 Characteristic is the following statement by Michael McConnell: “The people’s representatives have a right to govern, so long as they do not transgress limits on their authority that are fairly traceable to the constitutional precommitments of the people themselves.…”8 Or, as George Washington said in his farewell address: “The basis of our political systems is the right of the people to make and to alter their constitutions of government.… The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.”9
Although Bruce Ackerman emphatically denies that legislators govern in the name of the people,10 throughout two massive works entitled We the People, he too apparently assumes that the people can bind themselves, though he never states this explicitly. Instead, he writes of “decisions by the People,”11 “the constitutional judgement of We the People,”12 the “will of We the People,”13 “revision by the People,”14 and the people’s “right to change their mind.”15 In short, for liberals like Ackerman, no less than for conservatives like McConnell, “the People” are an entity capable of making decisions, reaching judgments, having a will, and changing “their mind.”16
In the next section, I will show that “We the People” is a fiction. I will demonstrate that constitutional legitimacy has not been conferred by either the individual or the collective consent of “We the People.” As we shall see, the idea of the “consent of the governed” is not one but a series of different commonly made arguments that we must distinguish and consider separately to see that none of them work. Though genuine consent, were it to exist, could give rise to a duty of obedience, the conditions necessary for “We the People” actually to consent to anything like the Constitution or amendments thereto have never existed and could never exist.17 Only when this is understood will we be in a position to understand how the Constitution of the United States could be legitimated on grounds other than consent.
Those who justify a duty to obey the law on the basis of the “consent of the governed” must explain exactly how and when “We the People”—you and me and everyone else—consented to obey the laws of the land. Some claim that by voting we consent to obey the resultant laws; others contend that residence or the failure to revolt or amend the Constitution implies consent. All of these theories of “tacit consent” collapse upon close examination. Let us consider each in turn.
Because we do not live in a direct democracy in which every individual votes on every law, to some it seems obvious that we consent to obey the laws when we vote for the lawmakers who enact them. Just as a person empowers an agent to represent and bind him, when each of us votes for people to represent us in the legislature, have we not consented to obey the laws that they, our agents, vote for? Perhaps. But suppose the candidate we voted for was defeated. In what way did we consent to be “represented” by his opponent, the person we voted against? Or suppose the person we voted to be our representative votes against a particular law. In what way have we consented to be bound by a law to which we and our representative were opposed?
“Well, consent doesn’t work that way,” comes the response. By choosing to vote, it is said, we have consented to the outcome of the election, whatever it may be. In a game, you consent to play by the rules even when you are losing. People often consent to a process of binding arbitration in which they know that they may win or lose. By the same token, when we participate in the electoral “game” or process, have we not committed ourselves to respect the outcome when our candidate loses?
But if consent is a message we communicate to others—“I consent to be bound by the outcome”—it is not clear that voting conveys such a message. Suppose some people vote, not because they consent to the outcome of an election, but “in self-defense”—that is, they vote because they hope to influence, however marginally, the result so that it is not as unfavorable to them as it might otherwise be. For example, some people might vote for the candidate who promises to support a tax cut, not because they consent to whatever the candidate might do in office, but solely because they hope to make a tax cut more likely and a tax increase less likely. The same holds true for persons who vote for candidates who support or oppose abortion rights. To infer from their having voted for such a candidate the message that these voters consent either to the outcome of the election or to the outcome of the lawmaking process, whatever it may be, is to misunderstand the meaning of their vote.
Yes, but by using a vote to try to influence the outcome, has not a person chosen to participate in the process, and does not this choice necessarily entail a consent to abide by the outcome? After all, should their candidate prevail, voters would expect those who supported the losing candidate to go along with the winning side. Unless losing voters go along with the winners, the system will fail to accomplish anyone’s objectives. Although this may be so, it does not follow that individual voters, by voting, have consented to be bound themselves. They could still be voting simply to minimize the threat to their interests posed by the lawmaking process. Voting for this motive in no way implies consent to any outcome that may result. Therefore, the simple act of voting does not tell us whether the voter consents to the outcome of the election (and all that follows from that) or whether he or she is voting for different motives entirely.
While I do not agree that consent to the outcome follows from a vote cast in self-defense, suppose for the sake of argument that it does. What, then, do we say about the consent of those who abstain from voting altogether? They have not expressed any consent to the outcome of an election, win or lose, or the decisions of “representatives” whom they have voted neither for nor against. Surely, on the argument presented so far, they are not bound to obey the law by virtue of their consent.
“Not so fast,” comes the reply. Provided that they were given the option of voting, those who have chosen not to participate in the election cannot complain. Consider the right of a criminal defendant to be represented in court by a lawyer. Should he waive his right to counsel and represent himself, or even stand mute, he cannot object if he is convicted—provided he was given the right to be represented. By the same token, so long as we are free to vote, if we fail to do so we cannot complain, however the election comes out. After all, we had the opportunity to influence the outcome and we freely chose not to employ it.
The analogy to the right to an attorney, however, is inapt. We do not find the defendant guilty because he consented to be so found. We find him guilty because we conclude that he is guilty. There is no reason to expect or require a defendant to consent to his prosecution. Though some defendants probably do, most probably do not. We do not know and we do not care because their consent does not matter. In contrast, the argument that we are bound to obey the laws because we have been given a right to vote is based on consent—the consent of the governed. It is not clear why, by giving someone the opportunity to consent, for example by voting, one may then infer consent from a refusal to vote.
This point becomes clearer when one realizes that, if consent is an expression of a willingness to go along with something, then this presupposes it is possible to express an unwillingness to go along. Just as I can say, “I consent,” there must also be a way to say, “I do not consent.” I am not here talking about the likelihood of such a refusal or all the considerations that might leave one “little choice” but to consent. Rather, I am simply insisting that, just as the word “no” means the opposite of “yes,” for consent to have any meaning, it must be possible to say, “I do not consent” instead of “I consent.” But notice where the argument has taken us when consent to obey the laws is based on voting:
If we vote for a candidate and she wins, we have consented to the laws she votes for, but we have also consented to the laws she has voted against.
If we vote against the candidate and she wins, we have consented to the laws she votes for or against.
And if we do not vote at all, we have consented to the outcome of the process, whatever it may be.
It is a queer sort of “consent” where there is no way to refuse one’s consent. “Heads I win, tails you lose,” is the way to describe a rigged contest. “Heads” you consent, “tails” you consent, “didn’t flip the coin,” guess what? You consent as well. This is simply not consent.
When confronted with this argument, some might respond that I have attacked a straw man. No one argues that consent is to be inferred from voting, or from having a right to vote. (I dispute this, by the way. In my experience, many people do argue in this manner—or at least they believe it—until the difficulties of the argument are brought to their attention.) Rather, the response continues, one consents to obey the laws of the land because one has chosen to live here.
Just as you are bound to obey your employer (within limits) because you consented to work at your job, you are bound to obey your landlord (within limits) because you consented to rent your apartment, and you are bound to obey the referee (within limits) when you consented to play basketball in a league, you are bound to obey the commands of the lawmaking system in place where you have chosen to live. You can always leave your job, find another apartment, or quit the basketball team, but as long as you remain, you have consented to live by the authority of others and are bound to do so. By the same token, though you can emigrate from the country if you wish, so long as you chose to remain, you have “tacitly” consented to obey the laws of the United States. Call this the “love it or leave it” version of consent.
While it is fair to say that one implicitly consents to obey one’s employer, a sports official, or the usher in the movie theater, it is not at all clear that one has consented to obey the laws of the United States simply by virtue of one’s failure to emigrate. Certainly no one has ever asked me for my consent, nor you for yours. Unlike immigrants who become citizens by taking an explicit oath, those born within the boundaries of the United States are not asked or required to take an oath promising to obey the laws.
Consider for a moment the implication of such a demand. Suppose one refused to take the oath. Would one then not be bound to obey the laws of the United States? Or would one then be expelled from the country? The latter prospect presupposes that the person who is demanding we take an oath is an “authority” who has the right to expel us if we refuse, but it is his authority that is at issue in the first place and that supposedly depends on our consent. All this is quite circular.
It is always hard to explain why a circular argument is circular (without sounding circular yourself), so consider this. Suppose I come to you and demand that you sign an oath to respect my commands and you refuse. Upon your refusal I claim a right to your house and order you to leave the country. You rightly say that this is absurd. I have no authority to demand that you take an oath, so you are free to ignore me. Your refusal to take the oath in no way obligates you to leave the country. You would be right. Because you have not consented to my authority, unless my authority is based on something other than your consent, I am in no position to demand that you either take an oath or leave the country.
Were the present government to demand we take an oath, it would be making exactly the same claim. If the reason for taking an oath is to give the lawmakers authority by our consent, then unless they first have authority, they cannot demand that we take an oath. But if they already have the authority to demand we take an oath, then the oath is unnecessary to establish that authority.18
That which is true for oaths is just as true for mere residence. It is equally unwarranted to base the authority of lawmakers on the “tacit” consent of everyone who chooses to live here and does not leave the country. For remaining in this country tacitly indicates consent only if you assume that the lawmakers have the initial authority to demand your obedience or your exit in the first place. But it is their authority that is supposed to be justified on the basis of your and my tacit consent. So the problem with inferring consent from a refusal to leave the country is that it presupposes that those who demand you leave already have authority over you. Your decision to stay, therefore, cannot be the source of their authority. And their authority, if it exists, does not rest on your consent.
Lea Brilmayer has dubbed this the “bootstrapping objection.”19 Brilmayer correctly identifies this as an objection to territorial jurisdictions that purport to be based on consent, not an objection to nonterritorial jurisdiction based on actual consent:
These bootstrapping objections to contractarian formation of a government do not necessarily arise when parties create governmental entities that lack territorial status. One might, for instance, agree with another individual that in the event of a dispute both will submit to binding arbitration. Although the arbitrator’s authority is established by consent, its authority is not territorial. In such cases, only the actual participants are bound; the extent of authority is not defined territorially.20
Thus, this objection will not apply to lawmaking jurisdictions based on actual unanimous consent described in chapter 2.
Besides its circularity, there is another reason to reject the “love it or leave it” conception of consent. As I have already noted, “I consent” is a message we communicate to others. Saying the words “I consent” is fairly unambiguous (so long as there is a way to refuse to consent). Depending on the context, there are few, if any, other meanings we can attach to these words. Simply remaining in the country, however, is highly ambiguous. It might mean you consent to be bound by the laws enacted by Congress; or it might mean you have a good job and could not find a better one in another country; or it might mean that you speak only English; or it might mean that you do not want to leave your loved ones behind. It is simply unwarranted to conclude from the mere act of remaining in the country of one’s birth that one has consented to all or any of the laws thereof.
Before the Holocaust—and even after it began—many Jews remained in Germany when they had a chance to escape, but chose to stay for a variety of reasons. Whatever else we can say about their decision, we cannot conclude that, merely by their presence, they tacitly assented to the Nuremberg laws. I do not mean to put too much stress on this argument. There were many characteristics of the Third Reich that undermined its authority and that made it substantially different in this regard from the United States. My point is merely that, simply by remaining in their homeland at a time they were free to leave, German Jews cannot be said to have consented to whatever laws were enacted in that country. Neither have we. And to return to the first argument, the Nazis had no authority based on the consent of the Jews to put them to this choice.
Those who base the duty to obey the laws on popular sovereignty or the “consent of the governed” will not give up at this point. They will then point to the fact that the U.S. government predates the birth of everyone alive today. Because it was here first, it can demand that one consent to its authority or leave the country. Recall the quotation from Michael McConnell: “The people’s representatives have a right to govern, so long as they do not transgress limits on their authority that are fairly traceable to the constitutional precommitments of the people themselves.…”21
The initial source of the authority of “the people’s representatives” was not your or my consent, goes the argument, but the consent of “We the People” at the time the government was founded. It is that consent that got the government up and running legitimately, and it is that consent that empowers it to demand that you “love it or leave it.” If you are born in and grow up in someone else’s house, for example, you must obey the rules of the home owner or move out. Your continued presence constitutes consent to the authority of the home owner.
Moreover, a popular sovereignty theorist might also make the somewhat different argument that the issue of the “consent of the governed” was never whether you or I consented to obey the laws by our vote or by remaining in the country. The real source of consent was the initial consent of “We the People” to the formation of a government, and from then on, so long as the people do not successfully revolt against the government, they can be said to have tacitly consented to it. It is the failure to overthrow the government, not the refusal to leave the country, that constitutes our consent to obey its commands.
Both arguments invoke the legitimate origin of the Constitution and rest that legitimacy on the consent of “We the People” of 1789. It is this consent that gives the Constitution its initial legitimacy and puts the onus on the citizenry afterward either to obey, leave the country, or successfully revolt. This shift in argument from our consent to the consent of “We the People” at the time of the founding now requires us to ask who exactly consented to the creation of this government and what gave them the power to bind themselves and their posterity. We shall immediately see the exact same problems here as we saw with voting, only once removed. Now we are talking about deficiencies in other people’s consent, not ours.
The Constitution was not approved by a unanimous vote, nor even by a majority of all persons in the country at the time. It was approved by a majority of delegates to conventions in each state. These delegates were elected by a majority of those who voted for delegates. Were the delegates who voted against the Constitution (and those who voted for these delegates) bound by their consent? And what about the majority of inhabitants who were not permitted to vote for any delegate? Though voting requirements varied with local jurisdictions, in no place could women, children, indentured servants, or slaves vote. Moreover, it was not uncommon to have a property requirement that limited the voting rights of white males and free black males. How can a small minority of inhabitants presuming to call themselves “We the People” consensually bind anyone but themselves? And assuming they could somehow bind everyone then alive, how could they bind, by their consent, their posterity?22
One response to this, already suggested above, is that the refusal to revolt or overthrow the government is what constitutes an ongoing tacit consent to obey the lawful commands of the system the founders created. But this is asking much too much of those who would refuse their consent. Does one really manifest a consent to obey the commands of someone much more powerful simply because one does not physically resist the threat of violence for noncompliance? True, physical resistance is evidence of a lack of consent, but if the cost of physical resistance is high enough, we cannot conclude that a passive nonresistance equals consent.
The same can be said to a lesser extent of the failure to emigrate. The cost of emigration, in terms of what one gives up by leaving, is too high to permit the inference from the failure to emigrate a consent to obey the laws of the land. Moreover, the failure of enough people to band together to overthrow a government tells us nothing about the consent of the individual to be bound by the commands of the government and therefore it tells us nothing about why laws are binding on the individual. To argue otherwise is to assert that the majority by its failure to revolt, can bind the minority to obey the laws.
To this the popular sovereignty theorist might respond that when the Constitution provides less costly mechanisms for change—such as an amendment process—it is the failure to amend the Constitution, rather than the failure to successfully revolt against the government, that manifests consent to obey all the laws. But this response is transparently inadequate. Whether a constitutional amendment requires a supermajority vote of both houses of Congress and approval by three-quarters of state legislatures, or a simple majority of the electorate, the failure to obtain an amendment through this process hardly indicates consent by anyone to the existing regime. A refusal to approve a change in the Constitution implies neither that those who supported the defeated amendment nor those who opposed it consented to the existing regime. In the end, we return to the problem of inferring the consent of the minority or of the individual from the consent of the majority. Consent simply does not work that way.
We are now in a position to appreciate the fundamental reason why none of the foregoing arguments based on consent succeeds: For consent to bind a person, there must be a way to say “no” as well as “yes” and that person himself or herself must have consented. Unless we are speaking of children, incompetents, or principals who have actually consented to be represented by an agent, no person can literally consent for another. This fact poses an insurmountable obstacle for all arguments that base the “consent of the governed” on anything less than unanimity. As Jeffrey Reiman has argued,
there is nothing inherently legitimating about the electoral process. If anything, the electoral process is the problem, not the solution.… [T]he policies that emerge from the electoral process will be imposed on the dissenting minority against its wishes. And then, rather than answering the question of legitimacy, this will raise the question with respect to those dissenters. Why are the exercises of power approved by the majority against the wishes of (and potentially prohibiting the desired actions of) the minority obligatory with respect to the minority? Why are such exercises of power not simply a matter of the majority tyrannizing the minority?23
Arguments on behalf of constitutional legitimacy based on majoritarian rather than unanimous consent attempt the moral equivalent of squaring a circle.
The appeal of arguments based on tacit consent dies hard, however, and perhaps here is the reason: Can we not say that almost everyone in some sense “accepts” the current government of the United States as legitimate? Would not the number who reject its legitimacy be very small indeed? Were this not the case, would not the government be hopelessly unstable? If general acquiescence in the existing legal regime is an empirical fact, and one that is essential to its functioning existence, can the regime not also claim the tacit consent of the population and the legitimacy that flows from such consent?
This is the sort of “consent” that Edmund Morgan had in mind when he wrote, “all government rests on the consent, however obtained, of the governed.”24 The need to obtain this consent so that the many accede to be ruled by the few, he contended, fully justifies the use of such fictions as “We the People.” “I can only hope that readers who persevere to the end of the book will recognize that the fictional qualities of popular sovereignty sustain rather than threaten the human values associated with it.… My purpose is not to debunk but to explore the wonder that … most of us submit willingly to be governed by the few of us.”25
Those who base their notion of “consent” on general acquiescence, however, have confused a “rule of recognition”—a concept made famous by H.L.A. Hart—with the conditions of constitutional legitimacy. A rule of recognition is the way the population can identify the existence of an operating legal regime.26 But just as knowing that a particular command is “the law” does not tell us whether it is binding in conscience, knowing that a legal regime “exists” as a result of general acquiescence does not tell us whether there is a moral duty to obey its commands.
Of course, some form of general acquiescence is necessary for any constitution to be implemented and to maintain its continued existence as positive law. As Frederick Schauer has noted, this acquiescence distinguishes the Constitution of the United States from another document entitled “The Constitution of the United States” I might write and have my friends ratify.27 Ratification by plebiscite or representative conventions can provide an effective rule of recognition to the population and can help to attain a general acquiescence to the constitutional regime, though these procedures are far from indispensable.
Mere acquiescence however acquired—which, as Morgan insisted, every existing government and scheme of positive law can claim—and consent cannot be the same thing. For what is at issue is not whether a legal system exists, but whether a particular existing constitutional regime is legitimate. Only if it is legitimate can an existing legal system issue commands to the citizenry that bind individuals in conscience. If acquiescence, which every functioning regime can claim, equaled the requisite consent, even the most oppressive regime could claim to be entitled to a duty of obedience on the basis of such “consent” so long as it manages to maintain its existence. Clearly this proves too much.
Therefore, though some degree of acquiescence may be necessary to establish a command as positive law, more than acquiescence is needed to create a moral duty to obey such a command. James Madison caught a glimpse of the moral problem when he observed in 1784 that the unratified Virginia “Constitution rests on acquiescence” only, which is a “dangerous basis.”28 The consent of the individual, were it to exist, would do the trick—but one individual or generation cannot consent for another, and unanimous consent, all concede, cannot exist and has never existed.29
There is considerable irony in the assertion of “tacit” consent as the source of the duty to obey the laws. Many who assert this would never accept so attenuated a notion of consent to justify, say, the lease of a television or the waiver of liability for harm. In these contexts, they demand a pristine version of “informed” consent that rarely if ever exists. For everyday contracts they require “complete information” of everything one is consenting to (or giving up) and a diversity of sufficiently attractive alternative choices before concluding that consent justifies enforcement. Unless these conditions are met, they insist that such consent is “fictitious” or “coerced.”30 Yet we are asked to accept the proposition that merely by virtue of living in the town in which we were born, or by failing to leave the country, we have “consented” to obey nearly any command that is enacted by the reigning legal system. And the consent of a majority is supposed to bind not only themselves, but dissenters and future generations as well.
The problem of legitimacy considered here is whether the commands of an existing legal system bind the citizenry in conscience. If the issue of legitimacy is raised only when a functioning legal system exists—and no legal system can exist without some form of acquiescence—then acquiescence (and whatever is needed to obtain it) could be viewed as a necessary, but not sufficient, condition of legitimacy. By the same token, if the perception of legitimacy is necessary to obtain acquiescence, then whatever contributes to that perception could also be viewed as a necessary condition of legitimacy.
Nevertheless, incorporating acquiescence and the means by which it is obtained into the requirements of legitimacy in this way does not affect my basic thesis: in the absence of actual consent, to be legitimate, an existing legal system must provide assurances that the laws it imposes are both necessary and proper. However it is obtained, acquiescence is insufficient to provide this assurance. Though acquiescence may be needed to establish a legal system as positive law, it is neither the same as, nor an adequate substitute for, actual consent.
In the final analysis, the only way that a duty to obey the law can be based on consent is when consent is given. Anything less than unanimous consent cannot bind those who dissent. Those who acknowledge this take one of two positions. Some maintain that there is no prima facie or presumptive duty to obey the law just because it is the law. I shall return to this argument in chapter 2. Though conceptually defensible, as we shall see, this position is unacceptable in regimes where lawmakers are given the benefit of the doubt and it is widely thought that there exists a duty to obey enacted laws. Others abandon popular sovereignty by contending that lawmaking authority is based not on the “consent of the governed” after all, but on something else. (It is remarkable how fast people drop the argument based on consent when confronted with its difficulties.) What is this “something else”?
According to one such argument, laws are binding, not because of the consent of “We the People,” but because people who receive the benefits of the legal system are bound to obey its demands. It is not consent, they say, but receipt of benefits that binds one. Sometimes called the “principle of fair play,”31 this theory has been extensively discussed among philosophers, and I shall not try to summarize the nuances of the debate.32
One powerful criticism of this position by Robert Nozick is that it, too, is ultimately based not merely on “receipt” of benefits but on some notion of consent.33 If out of the blue I send you a valuable item, are you obliged to pay for it in the absence of consent? Are you even obliged to return it to me? Most answer no. Likewise, we are not obligated to pay for benefits that are thrust upon us by others.
Some may say that if you choose to use the item, then you have obligated yourself to pay for it. There may be some merit to this suggestion; using an item that you know has been sent to you with the expectation of repayment may indicate a consent to pay. (Even this does not mean, however, that you are obligated to return the item rather than discarding it.) It is still not clear that one is obligated to pay for all unsolicited benefits one receives from others. We may get great pleasure from wonderful architecture, or from seeing an attractive person walk by, without conceding for a moment that we could be charged for the genuine enjoyment we experience.
But I shall not pursue the matter further here, because the kinds of benefits supposedly received from a legal system—the benefit of social cooperation, for example—are benefits that one cannot refuse no matter how much one wants to. Unless one can somehow refuse a benefit that is thrust upon him or her, it is not at all clear that one is obligated to pay for it either in money or in obedience. For the same reason it is not at all clear why the “benefits” one receives from living in the particular legal system we have—benefits we cannot decline to “enjoy” even if we want to—obligate one to obey the commands of this system.
When we move beyond the benefits of a “scheme of cooperation” supposedly represented by the legal system to tangible benefits—such as roads, parks, or schools—we find that most are paid for by taxation: payments that certainly are not consented to in any meaningful way. Must everyone whose income is confiscated to pay for roads, parks, and schools (to some unknowable extent) decline to make use of these resources lest they be accused of voluntarily benefiting from them and, therefore, of owing not only a duty to obey the laws, but a moral duty to pay for them as well?
In an influential essay, John Simmons defends the “fair play” argument against Nozick’s critique by denying it is based on mere “receipt” of benefits. A fairer reading, he contends, is that it is based instead on acceptance of benefits by participants in a particular system.
[F]or an individual to be a real participant in a cooperative scheme, he must have either (1) pledged his support, or tacitly agreed to be governed by the scheme’s rules, or (2) played some active role in the scheme after its institution. It is not enough to be associated with the “schemers” in some vague way; one must go out and do things to become a participant or “insider” .…34
For Simmons, the problem with the argument, reformulated so as to avoid collapsing into the tacit consent position, is that “it will by no means be a standard case in which all beneficiaries of a cooperative scheme’s workings have accepted the benefits they receive.”35
Simmons contends that “benefits accepted,” like unanimous consent, can potentially provide the basis for a duty to obey, but (also like unanimous consent) its conditions cannot ordinarily be obtained in modern political structures.
While it is clear that at least most citizens of most states receive benefits from the workings of their legal and political institutions, how plausible is it to say that they have voluntarily accepted those benefits, in even the cases of the most democratic political societies now in existence? Not, I think, very plausible.36
Simmons describes “acceptance” as an attitude that requires certain attributes.
Among other things, we must understand that the benefits flow from a cooperative scheme, rather than regarding them as “free” for the taking. And we must, for instance, think that the benefits we receive are worth the price we must pay to get them (with the burdens involved) or leaving them.37
Simmons then denies that most persons have the requisite beliefs and attitudes.
Most citizens will, I think, fall into one of these two classes: those who have not “accepted” because they have not taken the benefits (with accompanying burdens) willingly, and those who have not “accepted” because they do not regard the benefits of government as the product of a cooperative scheme.38
For all of these reasons, the argument for a duty to obey the laws based on benefits either “received” or “accepted” has fared little better than the argument based on the tacit consent of the governed. But there is more. Someone defending a duty of obedience on the receipt of benefits might respond that both of these criticisms evade the basic point: benefits received provide an argument for obedience wholly apart from either consent or acceptance and, for this reason, it is inadequate to respond that tacit consent to obey or pay or acceptance of a benefit is lacking.
So let us take this argument at face value and assume that one really does owe a duty of obedience to anyone who takes it upon himself, and without either the consent or the acceptance of the recipient, to provide another with (vital?) benefits. Assume that one does owe a duty of obedience, regardless of one’s consent, to anyone who provides one with (vital?) benefits. Could this not be offered as a justification for the legitimacy of chattel slavery? Could not a slaveholder claim, and often accurately, that he was indeed providing his slaves with vital benefits, including food, clothing, shelter, medical attention when needed, and protection from predation by outsiders?
Of course, one might quarrel with the accuracy of this claim, but on what grounds? That food, shelter, and the rest are not “benefits”? Hardly. That these benefits are not adequate? According to what scale of adequacy? Do citizens of severely impoverished countries have no duty to obey the law because the benefits provided by those governments are too niggardly? At what point do the benefits become great enough to generate a duty of obedience in the absence of consent? Is the problem with chattel slavery that masters do not pay the minimum wage?
To better appreciate why the nonconsensual receipt of benefits cannot be the source of a duty of obedience, imagine a generous master who provides all essentials and even a degree of choice or freedom to his vassals—or house slaves—that they are nevertheless unable to refuse. Are the slaves of sufficiently bounteous (defined however you wish) masters morally obligated to obey them? What is the problem with this entire line of argument? The obvious answer is that what is lacking is the consent of the slave. Were there consent to the relationship, then we would not (or should not) describe it as slavery at all—provided that the servant were free to exit the relationship.39 But if consent is required to convert a morally impermissible slavery into a duty of obedience, then such consent cannot be fictitious. It must be real, and we have already seen how there is and can be no real consent to the sort of legal system established by the Constitution.
Though it is not hard to see why consent is needed to convert a slave relationship to one that is morally permissible, it is sometimes overlooked that this strongly implies the existence of human rights. For only if persons have a right to refuse their consent can we ever say they have consented. Such a right of refusal must, therefore, precede the creation of a duty of obedience. If consent is the source of a duty to obey the law, then first comes rights and only then comes law. As we shall see in chapter 2, in the absence of consent, the preexistence of these rights has important implications for any legal system that claims a duty of obedience.
Some political theorists rely upon a notion of “hypothetical consent” or that to which a rational person would consent.40 To evaluate claims based on “We the People,” we need not get enmeshed in the intricacies of such “rational choice” theories. It is sufficient to note that hypothetical consent is not actual consent. Indeed, actual consent plays no role in such approaches. Rather, rational choice theories attempt to demonstrate the constraints to which people, under certain conditions, ought to consent regardless of whether they do consent or not.
In other words, though an analysis of “hypothetical consent” may well provide an argument in favor of certain moral or political principles, such an argument is not based on the real-world consent of anyone to anything. This means, however, that hypothetical consent provides no consent-based reason to ignore or evade the background rights of the people—provided that (as I have shown elsewhere and will summarize in the next chapter) people do have rights prior to the formation of a legal system. Properly understood, arguments based upon hypothetical consent actually help us understand why lawmakers must respect the rights of the people they purport to bind.
Lysander Spooner was perhaps the earliest constitutional theorist to recognize that an argument based on hypothetical or presumptive consent “exist[ing] only in theory”41 is required to respect the rights of the individual because everyone cannot be presumed—in the absence of express or actual consent—to have given up their rights. “Justice is evidently the only principle that everybody can be presumed to agree to, in the formation of government.”42 In the absence of actual consent, a government that protects the rights of all “is the only government which it is practicable to establish by the [theoretical] consent of all the governed; for an unjust government must have victims, and the victims cannot be supposed to give their consent.”43
Thus, an argument based on hypothetical consent is inadequate to justify overriding background rights. On the contrary, for a constitution to be legitimate on the basis of hypothetical consent, it must be shown that such a constitution is consistent with whatever may be the rights of the individual.
If one accepts that “We the People” is a fiction, does this entail that the constitutionality of a law tells us nothing about our duty to obey it? I think not. In the next chapter, I shall consider an alternative conception of constitutional legitimacy that explains both how laws can bind the citizenry in conscience in the absence of consent and why, because consent is lacking, the lawmaking power of government must be constitutionally limited. Indeed, I shall argue that, in the absence of unanimous consent, there is a duty to obey the law only when the legislature’s powers are limited.
The point of this chapter is to make plain why such an alternative conception of constitutional legitimacy is required. It is needed because (a) consent to the sort of lawmaking processes established by the Constitution is nonexistent and impossible and (b) the dispensation of benefits by lawmakers does not generate a duty to obey their commands in the absence of consent. If such a duty of obedience exists, it must be justified in some other manner, and, in the absence of some alternative justification, there is no duty to obey the commands of these lawmakers.
Let me now add an important caveat to the analysis just presented. I am arguing only that a duty to obey the law cannot be grounded on the consent of the governed when there has been anything less than unanimous consent and that, obviously, no government legal system can claim this degree of consent. I am not claiming that adoption of constitutions (or laws) by popular vote or conventions is a bad idea. It may well be that such ratification processes are an excellent idea because they enhance the likelihood that whatever does legitimate a constitution actually exists. Moreover, such adoption procedures may secure the general acquiescence that is a requirement of any functioning legal order, whether or not it is legitimate.
On the other hand, the need to obtain popular acceptance and ratification can come at a cost. Because the framers of the U.S. Constitution knew they could not obtain ratification in certain states were they to abolish slavery, they felt moved to compromise on this issue—a pragmatic decision for which they have long been criticized and which set the stage for the bloodiest war in American history. When it comes to slavery the founders get little credit for their effort to obtain the “consent of the governed” and rightly so when the issue is the unjust claim of some to enslave others.
In this chapter, I am not considering whether some procedures for adopting a constitution are better than others. I am only challenging the widely held assumption that, because of popular sovereignty or the consent of the governed, “We the People” are bound in conscience to obey any law that is enacted by constitutional means. Further, because unanimous consent is never required, in practice the “consent of the governed” is reduced to the consent of a majority of legislators who are elected by a majority of those who vote in an election. In short, “We the People” is a fiction. In the next chapter we shall see how this fiction became dangerous and how constitutional legitimacy can be achieved in the absence of the consent of the governed.
1 Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: Norton, 1988), 13–14.
2 For the historical origins and evolution of this belief see ibid.
3 The Thirteenth Amendment prohibits private persons, not just government, from enslaving another or holding them in involuntary servitude. See U.S. Const., Amend. XIII.
4 James Madison, Notes of Debates in the Federal Convention of 1787 (New York: Norton, 1987), 231 (statement of R. King).
5 See H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), 77–96 (distinguishing “primary rules” that direct individuals from “secondary rules” that define how the primary rules are determined).
6 This is what philosophers call a prima facie duty, meaning that one has a duty unless it can be shown that there is some reason why this duty does not adhere.
7 For an explanation of the concept of “popular sovereignty,” and an insightful but different critique, see Christopher W. Morris, “The Very Idea of Popular Sovereignty: ‘We the People’ Reconsidered,” Social Philosophy and Policy 17, 1 (Winter 2000): 1–26.
8 Michael W. McConnell, “The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin’s ‘Moral Reading’ of the Constitution,” Fordham Law Review 65 (1997): 1291.
9 “Washington’s Farewell Address,” in Henry Steele Commager, Documents of American History, 6th ed. (New York: Appleton-Century-Crofts, 1958), 172. This passage of Washington’s speech was reputedly drafted by Alexander Hamilton. See Joseph Ellis, Founding Brothers: The Revolutionary Generation (New York: Alfred A. Knopf, 2001), 152.
10 Bruce Ackerman, We the People: Foundations (Cambridge: Harvard University Press, Belknap Press, 1991), 184 (“No small group can ever be transubstantiated into the People by virtue of legal form”).
11 Ibid., 6.
12 Ibid., 9.
13 Ibid., 10.
14 Ibid., 13.
15 Ibid., 14.
16 Ibid. The very phrase “their mind” signals that something is amiss beneath the surface. If “We the People” have a single mind, should Ackerman not speak of “its mind”? He would then have to tell us what exactly the “it” is—everyone? a majority?—and how a diverse multitude of millions of people can have a single mind. If, on the other hand, there is no single mind, then should he not have said “their minds”? Yet this expression would weaken the desired imagery of a single deliberating, willing, and acting agent that—or is it “who”?—exercises judgment.
17 Although Ackerman’s preoccupation with the trope of “We the People” makes his work an obvious target of this critique, nowhere in his two pathbreaking books does he, to my knowledge, systematically defend the normative assumption that the “will of We the People” is actually binding on any particular person, or that constitutionally enacted laws are binding on the citizenry. Instead, he defends his “dualist” approach as the best description of the American constitutional tradition (about which he may well be correct). See, e.g., ibid., 13 (“My argument … focuses on the fact that our Constitution has never … explicitly entrenched existing higher law against subsequent revision by the People”). I discuss Ackerman’s dualist theory of constitutionalism below.
18 As the idea of popular sovereignty was first developing in England, one group—the Levellers—“proposed … an ‘Agreement of the People’ to be signed by every Englishman who agreed to transfer to his representative the powers specified therein. (What would happen to those who did not agree is unclear.)” Morgan, Inventing the People, 72. Though their proposal was never implemented, it illustrates what taking the consent of the governed literally would require.
19 Lea Brilmayer, “Consent, Contract, and Territory,” Minnesota Law Review 74 (1989): 10.
20 Ibid., 16.
21 McConnell, “Importance of Humility,” 1291.
22 For what it is worth, in the Preamble to the Constitution, the framers did not purport to bind their posterity but rather to secure for it “the Blessings of Liberty.”
23 Jeffrey Reiman, “The Constitution, Rights, and the Conditions of Legitimacy,” in Alan S. Rosenbaum, ed., Constitutionalism: The Philosophical Dimension (New York: Greenwood Press, 1988), 134. As he elaborates: “These questions not only point up the error of taking electoral accountability as an independent source of legitimacy, they also suggest that it is mistaken to think of electoral accountability and constitutional provisions as alternative sources of legitimacy. Rather, the Constitution with its provisions limiting the majority’s ability to exercise power is the answer to the question of why decisions voted by a majority are binding on the minority who disagree” (ibid.).
24 Morgan, Inventing the People, 13.
25 Ibid., 15. Perhaps Morgan does not believe that general acquiescence “however obtained” justifies the rule of the many by the few, but the general tenor of his book suggests otherwise. At any rate, this normative issue is not addressed in his otherwise magnificent intellectual history of the idea of popular sovereignty.
26 See Hart, Concept of Law, 92–93 (A rule of recognition is “a rule for conclusive identification of the primary rules of obligation”). Notice Hart’s reference here to the “rules of obligation.” Hart also contended that if the rule of recognition was satisfied, citizens would then not only be compelled or “obliged” to obey the law, they would also be under an “obligation” or moral duty to obey. This I reject for reasons I have given elsewhere. See Randy E. Barnett, Structure of Liberty: Justice and the Rule of Law (Oxford: Clarendon Press, 1998), 17–23. And this is conceded by those modern positivists who deny that the mere legality of a command entails a duty of obedience, as we shall see in the last section of this chapter.
27 Frederick Schauer, “Precedent and the Necessary Externality of Constitutional Norms,” Harvard Journal of Law and Public Policy 17 (1994): 52. (“[O]nly one of these ‘Constitutions’ would be the Constitution of the United States, because only one of these documents would have been accepted, socially and politically, by the people of the United States as their Constitution.”)
28 Notes for a Speech [June 14 or 21, 1784], William T. Hutchinson et al., eds., The Papers of James Madison, vol. 8 (Chicago: University of Chicago Press, 1962–91), 77. Madison believed that if “ratified by” the people, the Virginia constitution would be “more stable and secured agst. the doubts & imputations under which it now labors.” Ibid.
29 Though unanimous consent to something like the Constitution is impossible to obtain, I explain in chapter 2 why, contrary to popular assumption, unanimous consent to other effective governance structures is both quite possible and quite common.
30 This view is almost too widespread to require citation, but see, e.g., Jean Braucher, “Contract versus Contractualism: The Regulatory Role of Contract Law,” Washington and Lee Law Review 47 (1990): 697–739; Peter Linzer, “Is Consent the Essence of Contract?—Replying to Four Critics,” Annual Survey of American Law (1988): 213.
31 John Rawls’s early theory of legal obligation based on the “duty of fair play,” though superficially resembling a benefits received argument, actually depends “upon our having accepted and our intention to continue accepting the benefits of a just scheme of cooperation that the constitution defines.” John Rawls, “Legal Obligation and the Duty of Fair Play,” in Sydney Hook, ed., Law and Philosophy (New York: New York University Press, 1964), 10 (emphasis added). This therefore is not a pure benefits received argument. “[A]n essential condition of the obligation is the justice of the constitution and the general system of law being roughly in accordance with it. Thus the duty to obey … an unjust law depends on there being a just constitution” (ibid.). This makes the structure of Rawls’s old theory very similar to that presented in chapter 2, though it adds an extra requirement of voluntary acceptance of benefits that I think is unnecessary to justify a prima facie duty to obey laws that are produced by procedures that assure their justice.
32 See Williamson A. Edmunson, ed., The Duty to Obey the Law: Selected Philosophical Readings (Lanham, Md.: Rowman & Littlefield, 1999).
33 See Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), 90–95.
34 A. John Simmons, “The Principle of Fair Play,” in Edmundson, Duty to Obey, 124–25.
35 Ibid., 132.
36 Ibid., 136.
37 Ibid., 137.
38 Ibid.
39 Indentured servitude coexisted with chattel slavery throughout its history in America. Such arrangements were voluntary, but still objectionable in my view because the servant was bound to service for a period of years and could not exit. For reasons why this, too, violates the inalienable rights of persons, see Barnett, Structure of Liberty, 77–82. Other classical liberals have defended such “voluntary slavery” arrangements as morally permissible. See, e.g., Nozick, Anarchy, State and Utopia, 331.
40 See, e.g., John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 12 (“The choice which rational men would make in this hypothetical situation of equal liberty … determines the principles of justice”).
41 Lysander Spooner, “The Unconstitutionality of Slavery,” rev. ed. (1860), reprinted in Charles Shively, ed., The Collected Works of Lysander Spooner, vol. 4 (Providence: M & S Press, 1971), 153. (“Our constitutions purport to be established by ‘the people,’ and, in theory, ‘all the people’ consent to such government as the constitutions authorize. But this consent of ‘the people’ exists only in theory. It has no existence in fact.”) See also ibid., 225 (“The whole matter of the adoption of the constitution is mainly a matter of assumption and theory, rather than of actual fact”).
42 Ibid., 143.
43 Ibid.