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Once again I’m looking at the Declaration. In the PowerPoint version of the Declaration, this would be one of the bullet points on the “We hold these truths to be self-evident” slide:
That to secure these rights Governments are instituted among Men, deriving their just powers from the consent of the governed,
“These rights” in question are the rights endowed by our Creator, including but not limited to life, liberty, and the pursuit of happiness. Governments exist to secure these rights. Seeing as Jefferson’s just assumed the reasons for the existence of government, I think we can pause for a bit to consider that idea.
The Purpose of a Just Government
The weakness inherent to any argument based on self-evident truths is that someone’s going to come along and claim something else. One can imagine an Ancient Egyptian political scientist arguing that the government, the army, the taxes, all that go to serve and perpetuate the divine Pharaoh. One could also imagine governments instituted to protect its constituents from the Hobbesian war of all against all.
I think trailing off down that rabbit hole is a mistake. We’re talking about a just government here. A government that merely exists to perpetuate itself doesn’t qualify. The next bullet point in the slide is about how it is the Right of the People (his capitals) to abolish governments that are destructive of those ends (‘those ends’ meaning securing the rights of the people). It was the Right of the Egyptian slave to rise up and throw off the tyranny of Pharaoh. One could introduce other governments, but the only ones worthy of being served are just ones. Ones which hold securing the fundamental rights of Man above any and all other objectives.
Note also that this provides a framework for judging government activities. The power to wage war, the police power, these things tie back to securing the citizen’s right to life. The National Endowment for the Arts? I’m not seeing it.
Their Just Powers
Moving on to the second half of the quote, the existence of ‘just’ powers implies the existence of unjust powers. Actually, the surprising thing ought to be that there are any just powers at all. The common lot of mankind has, since the beginning, included governments exercising unjust powers over their unfortunate minions. It’s a bit tautological, but let’s take any ‘just’ power to be one that secures those fundamental rights, and any unjust power to be one that’s exercised for any other purpose.
To take the obvious example, a nobleman exercising his droit du seigneur (not that there’s any evidence that that actually existed) would be using an unjust power since it infringes rather heavily on liberty. One could also see how taxes to beat the Axis would be a just application of the taxing power whereas taxes to fund the arts, however much we might like the arts, would not.
That Our King May Judge Us
For a government to derive its just powers from the consent of the governed then we’ve got to have some idea what it means that the governed are consenting. If you voted for the other guy then does the current office holder have your consent? What if you didn’t vote at all? Let’s take a minute and look at that bit from 1 Samuel I referenced up above:
Nevertheless the people refused to obey the voice of Samuel; and they said, “No, but we will have a king over us, that we also may be like all the nations, and that our king may judge us and go out before us and fight our battles.”
Let’s say that two Israelites go to the newly-minted King to dispense justice. When the King renders his judgment one of them is going to win and the other is going to lose. Can the loser then declare that the judgment is illegitimate? Well, we know that anyone can and will declare any old thing, but in this case, he wouldn’t be right about it. (Unless the other guy slipped the King a little consideration on the side, but we’re not getting into that). Consent has to do with how the decision gets made; it has nothing to do with whether or not you like the outcome of the decision.
By the time you get to the voting booth, though, you’ve lost most of the options as to ‘who’. There are only two choices. And maybe (probably) you’re just voting for one because you like the other one less. And then that son-of-a-ballot goes and votes power to an awful agency, who uses it to make rules for how to run your life. Does the government still have your consent?
Jump back to the two Israelites. They mutually agreed to go to the King to dispense justice. The king exercises the government power of administering justice. He’s got the best possible claim to the consent of the governed — they’re standing right there consenting to this act. The awful agency from the last paragraph has a much worse claim on having the consent of the governed. By the time you’ve waded through the caveats you’re up to your neck in the D.C. Swamp. That metaphor might have gotten away from me a bit. Suffice to say that it’s impossible to get the same level of consent in a nation this large as in one where two nobodies can just waylay the king and ask him to hear a dispute.
Justice as a Function of Consent
I don’t think of the consent of the governed as if it’s a switch that just goes “on” and “off”. You can have more or less. The more say the people have in any government decision the greater that consent. And going back to the quote — if government derives its just powers from the consent of the governed — then justice has to depend on that consent. That can’t make an unjust action just, but it can make an otherwise good action illegitimate because the person taking that action doesn’t have the consent of the governed.
One can differentiate then between levels of consent that a given decision has. People vote for Congress, therefore Congress has a better claim on the consent of the governed than an agency empowered by Congress does.
Without trying to work out precisely where the government loses the consent of the governed we can still derive some interesting results from thinking of justice in that fashion. Note that these are all scored along a scale of “more just” or “less just”.
A) The Same Act Can Be More Just or Less Just Depending on Who Performs It
And here I’ve got to insert a quick apology; I try to keep the discussion as general as I can because I don’t want to get anyone stuck on a hobby-horse. I’d much rather you decide whether or not you agree with my logic than go haring off after an example. But this particular example illustrates the question so well…
Trump asks Congress to provide the funds to build a border wall. Congress declines. Trump declares an emergency and goes ahead and builds the wall anyway. Trump is acting off of authority that Congress delegated to the Executive to declare emergencies. Is this just? I’d argue that it’s less just because of the use of that emergency power. If Congress has the Constitutional authority then Congress ought to be the one using the power. Even if the President has the legal authority to use that power the fact that he’s doing it and not Congress moves it one step further from the consent of the governed, and hence makes it less just. That’s completely independent of whether or not you think a border wall is a good idea.
B) The More Local the Government the More Just the Action
If there’s any way that I can be said to be giving my consent to the government it’s when I cast my ballot. Consequently, my consent is proportional to the amount of influence my ballot had on events. (All cast ballots are treated as equal in this regard, winning and losing.) My vote has less influence on what the Congress does (seeing as it’s vying against every other vote in the nation) than it does on what the State Legislature does (where I’m only up against everyone else in Wisconsin.)
Consequently, the same action taken by the EPA is less just than that action taken by the state Department of Natural Resources; because the EPA is further from me, the governed, than the state DNR. This idea comes with a couple of corollaries:
- Any given problem of government should be solved at the lowest level of government possible.
- Constitutional restrictions ought to be at their strongest against the Federal government.
C) Primary Processes Ought to be as Transparent as Possible
Again, if I’m giving my consent to the government through the ballot then it stands to reason that the names that appear on that ballot are important. One can easily conjure up a Boss Tweed character who ensures that his guy always gets in office because all the names on the ballot are actually his guy. In that sense, Trump might be the most legitimate President we’ve had in a while. The way he was substantially different than all the other 2016 primary candidates gave the voters a larger range of choices than they usually get.
D) Acts of the Government may be Legal but Unjust Because of their Remove from the Consent of the Governed.
Jumping back to Jefferson for a moment:
He [George III] has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in a Legislature, a right inestimable to them and formidable to Tyrants only.
For suspending our own Legislatures and declaring themselves [Parliament] invested with power to legislate for us in all cases whatsoever.
Parliament, which had a theoretical right to order the affairs of any Englishman, even if he wasn’t represented in the body itself is clearly a bridge too far for justice.
Back to the present hour, the regulatory shell game in the Capital. Congress writes a law to create an agency to regulate a thing. The agency is staffed by bureaucrats from who knows where doing who knows what. Their whims still have the force of law. You can go to jail for neglecting them. But they still have the consent of the governed because somewhere down the chain the voters voted for something?
It is my opinion that Congress delegating the ability to write laws to agencies is fundamentally unjust. The Constitution should be amended to forbid Congress from delegating its powers to any other.
A couple of corollaries on this point as well:
- The power to write laws was not assigned to judges. Judges should therefore only pay attention to the law and the Constitution. For example, the Judge overturning Proposition 8 in California should not have done so, whether or not he or I think that referendum was a good idea or not.
- A deep state which ignores the voters becomes unjust because it’s completely cut off from the consent of the governed regardless of how wholesome their actions may be.
A Note on Unfettered Democracy Before I Go
All along I’ve been assuming a republican form of government. If justice is a function of the consent of the governed then shouldn’t we cut out the middle man and live by mob rule? By no means!
The consent of the governed is a necessary but not sufficient condition for an act of the government to be just. Suspending elections is unjust whether or not you have the people’s consent. Similarly the typical example of Athenian democracy voting to deploy an admiral and then voting to execute him, that’s unjust even if everyone wanted it.
I remain perfectly open to the arguments for the republican government to act as a check on the mob. I should note that whenever one acts as a check against the will of the people that one should take great care. It’s one thing to temper the more violent passions of the mob; it’s quite another to decide that all their ideas are wrong and you should steer the government by your will alone.
Speaking of which, one final caveat. All the above assumes good and faithful public servants. An action taken for corrupt reasons does not become just because that person had the Constitutional authority to take that action.
Jefferson’s last self-evident truth states
That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and institute new Government, laying it’s foundations on such principles and organizing its powers in such forms, as to them shall seem most likely to effect their Safety and Happiness.
One of those things about our totems of patriotism like the Declaration of Independence is that we occasionally forget that it’s talking about something so revolutionary as… well, revolution. Jefferson is laying out these self-evident truths because he’s going to demonstrate that ‘the present King of Great Britain’ has ‘become destructive of these ends’. An unjust government gets altered or abolished. While it’s a mistake to take any modicum of injustice and declare it cause to overthrow the system, it should also be noted that patience with an injustice does not mean countenancing it forever.
This is another reason I worry that civil war is inevitable.