One issue that I knew would come up in the comments to the post about The Tale of the Slave is the concept of the social contract and the alleged consent of the governed.
For most of my life, I accepted rather unquestioningly the notion that there is a “social contract.” Sure, it’s obviously impractical to have every person in a country explicitly consent to be governed by some authority. But, as John Locke argued, lack of explicit consent does not make the government illegitimate — because there are ways that we display our tacit consent to be governed. We accept and use the benefits that we receive from government, such as driving on government roads. We vote (at least many of us do), which is a display of our desire to affect public decisionmaking. All of these actions show that we are engaged in a “social contract” — and that our government (to quote Jefferson’s words from the Declaration of Independence) is one “deriving [its] just powers from the consent of the governed.”
And without the concept of “tacit consent” or the “social contract,” there would be a free-rider problem. If we had no justification to tax citizens to provide for necessaries such as the common defense and fighting crime, only some would pay for that which is necessary for all.
That’s the argument that I have accepted most of my life. And, to be clear: I’m not dead convinced that this argument is absolutely wrong, at least in theory. But as I watch our country moving away from our original “social contract,” the Constitution, I’d like to challenge some of these assumptions.
The argument that accepting government benefits means accepting the government itself proves too much. Let’s invoke Godwin’s Law right off the bat: if you drove on the Nazis’ roads, did that mean you accepted Hitler’s legitimacy? Under this ridiculous theory, anyone who accepts any government “benefit” from any totalitarian regime necessarily recognizes that government’s legitimacy. To state this argument is to reject it.
The other problem I have with tacit consent resting on government “benefits” is that there is a socialist assumption built into the argument: that we could not enjoy these benefits if the free market were allowed to handle the situation that the government has taken over. Take the roads, for example. The assumption, I guess, is that if the government didn’t build roads, people would just stand around in the fields looking at each other and shrugging. Somehow, I think the free market could come up with a way to build roads, if it came right down to it.
Another argument says that if you don’t like your own country, you are free to move to another. If you stay, that means you accept the “social contract” — whether your signature can be found on a document or not. Really? What other contract on earth requires you to pick up all your belongings, uproot yourself and your family, and move to another part of the world — just to show that you don’t consent to the “contract”? Courts won’t enforce a contract for the sale of land without a signature. Why, then, would we consider people bound to a “social contract” with no signature — especially when that “social contract” involves the prospect of confiscatory taxation, and even possibly involuntary conscription to fight a war we don’t believe in?
Ah, but what about the vote as tacit consent? Nice try, but no sale. Imagine you told me that I could withdraw my consent to be taxed and subjected to laws I disagree with, simply by refusing to vote. Guess what? I will never vote again. As it stands right now, my vote is generally an act of self-defense. I’m either voting against some ridiculous bond issue that is going to cost me and my children money — or I’m voting for the person who is least likely to increase government and ruin my children’s future (which is the same as saying I am voting against the person who is most likely to screw my family). I usually don’t like the person I am voting for, and I usually expect that their decisions will be ones I would never make and consider absurd — but hopefully slightly less absurd than the decisions that would be made by his opponent. Does this mean I “support” the candidate I am voting for? Hardly ever.
So where does this consent come from? What justification does this government have to tax me to pay for the health care of people who are leeches on society? Or, on a more mundane level, what right does this government have to tell me whether I can use my iPhone to call an Uber car and share the ride with other people to make it cheaper?
I didn’t ask for any of this. I didn’t sign a contract.
Again, I’m not sure I absolutely reject the idea of a social contract, but the arguments against are not so easily dismissed as I assumed for most of my life. And those arguments seem to gain force given that we have discarded the Constutition.
The closest thing we ever had to a true social contract was the Constitution of the United States. That was a governing document that actually was signed by representatives of the People. True, the time came when all those signatories were dead, but the document did provide a mechanism for its alteration, which provided a way for the People themselves to have their say in what the Constitution means. But now, unelected judges say what the Constitution means — and their diktats bear no relationship to the words written in the document. What’s more, we are increasingly governed by a President who does not consider himself bound by the Constitution, but rather by his sense of what he can get away with. (I’m sure that formulation has been used by others, but it rings so true that I feel like it is original with me.)
More and more, I find myself wondering: what legitimacy does this government have? And, more and more, the answer seems to be: none.
What it does have, is power. If I run afoul of it, I can be locked in a cage. If I criticize it, I can be audited by the IRS.
But legitimacy? With a dead Constitution, tell me the source of this government’s legitimacy. I don’t see it.