“We the people”—it is the familiar refrain which opens our founding charter. It was “the People” themselves, as a collective whole, who, “in order to form a more perfect Union,” set out in writing the structure of government to ensure the “unalienable Rights” of “life, liberty, and the pursuit of happiness” to “the People.” In contrast to the monarchies in Europe with which the Framers were all too familiar, governance would be by the “consent of the governed,” from which “governments…instituted among men…deriv[e] their just powers….”
[A brief aside: in this essay, “rights” is to be understood as so-called “negative rights” rather than “positive rights.” The difference, in short, is that negative rights constitute what we usually mean by the word “liberty”; whereas positive rights consist of what we usually mean by the word “welfare.” Unfortunately, due to the inexactitude of language, the word “rights” has become garbled, sometimes referring to the former (as in the right to practice whatever religion you’d like), and sometimes referring to the latter (as in the “right” to birth control that was at issue in the Hobby Lobby case, where those opposing Hobby Lobby were actually demanding that the corporation affirmatively provide birth control, not just that they should be allowed to obtain it freely themselves). When I speak of rights, I refer to what can be simplistically referred to as—in the words of Justice Brandeis—the “right to be let alone. See here for more on the difference.]
This idea, that authority to wield power flows from “the People,” thus providing the government with a legitimacy it would otherwise lack—in a word (or two), representative democracy—is highly idealized, certainly in modern, liberal democracies, but also in countries who yearn for but are deprived of such a system of government. In the world we live in, governments that operate absent the people’s consent—governments that are not “of the people, by the people, and for the people”—are rightly considered suspect.
This idea possesses such power that it can lead the most powerful country in the world to impose democratic order on undemocratic regions, driven by a persistent and unflagging belief in the importance and power of democratic rule. Hence why the United States military has been deployed the world over to depose dictators and maintain order in nascent democratic states. Without passing on the merits, suffice it to say that this whole nation building enterprise has been predicated on the idea that, when people are given the reins of power to rule themselves, more good than ill comes.
Particularly in the current political environment, one has good reason to question the presumptions undergirding this faith in the value of democracy. Those who feel frustrated at the current state of affairs may feel the temptation to advocate (or perhaps impose) a system that might yield better outcomes than the vicissitudes of democracy often produce. To be sure, few advocate for autocracy. What such people want is not dictatorship, but rather something akin to a Wilsonian, benevolent technocracy—rule by experts who “know what’s best.”
Such an idea is tempting, especially for those who might fancy themselves the experts, but it runs headlong into the problem of legitimacy. Self-rule, for all its flaws, just feels normatively superior to other systems of governance. The virtues espoused in the Constitution and the Declaration of Independence are universal. Human beings crave autonomy and self-rule, to be “the master of my fate” and “the captain of my soul.” The Framers did not contrive this idea out of whole cloth in 1776 when they penned their letter of open rebellion against George III.
Self-rule, however, is no panacea either. In establishing the “double security” to safeguard the rights of the people in the “compound republic of America”—the double security being federalism and separation of powers—the Framers evinced equal concerns about autocracy as well as mob rule, i.e., the “tyranny of the majority.” “Ambition must be made to counteract ambition,” as James Madison said, to protect “the People” from whatever forces sought to violate their “inalienable rights.” Government must be designed to “control the governed,” to be sure, for otherwise society may very well descend into a Hobbesian state of nature—the “war of all against all” leading to lives that are “solitary, poor, nasty, brutish, and short.” However, government must also “in the next place oblige it to control itself,” lest under color of the fiction of the “consent of the governed,” the rights of humans are infringed.
In Dr. King’s immortal “Letter from a Birmingham Jail,” he echoes this concern in articulating a bigger and more consequential principle:
[T]here are two types of laws: just and unjust….I would agree with St. Augustine that “an unjust law is no law at all”….A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law….An unjust law is a human law that is not rooted in eternal law and natural law.
Whether one prefers to view the matter through the theistic lens which Dr. King did, his basic point holds: the divide is not between laws imposed by dictators vs. laws imposed in democracies, but between “just” and “unjust” laws, which is determined by reference to the “eternal” and “natural law” of which he speaks.
Our own nation has so often failed to enact laws consistent with this natural law. Many laws have been enacted truly absent the consent of the governed, but rather they have been adopted by factions and minorities who have seized the levers of power and imposed their narrow will and interests on others. Such laws are “no law at all,” and disobedience, while violating the spirit of the manmade law, is nevertheless called for to accord with the spirit of the true, “natural” law.
However, such disobedience, even if right, upsets the rule of law and regularly leads to oppression and tyranny—in some instances with the end result being worse than the former. Which leads to the crux of the matter: if even the notion that a government can operate by the “consent of the governed” proves to be a fiction—sometimes painfully and ironically so—what then to do? How can a government function in the world and truly operate by the consent of all the individuals to be governed thereunder? How can the rights of individuals, those who possess “inalienable rights” and can withhold their consent or rescind it in the face of abuse and oppression, be respected in a pluralistic world with competing interests and values? Democracy, even with various structural protections in place, proves insufficient all too often.
This demonstrates the point that representative government is not an end unto itself. Rather, it is a necessary, but not sufficient, condition to realize the goal of legitimate government. Or, viewed another way, self-rule is like constitutional due process—a procedural safeguard to ensure the legitimacy of government and the protection of individual rights, something that nevertheless does not, in and of itself, guarantee that legitimacy or those protections.
Of course, this safeguard, undergird by the notion that government operates by the “consent of the governed,” is supported by the fiction that everyone has consented to the system established via the democratic process. But this is simply not true. Certainly those who vote against a law or for the loser in an election do not consent to the imposition of that law or the representation of the winner in that election. Quite the opposite, they dissented. And, of course, there are all those who choose to not participate in the process at all, some out of apathy and some out of conscious abstinence, but all of whom chose to withhold their consent via inaction.
To get around this difficulty, people posit that individuals in democratic forms of government have entered into something of a Faustian bargain—if you want self-rule so much, you must imperil your rights and trade them away to the system and hope that good outcomes obtain. You get to vote to make sure that happens, but there is no guarantee your vote—your consent, really—will end in the results you wish. To put it more simply, if you want to play the game, you accept the risk that sometimes you will lose. Fair enough when it comes to matters not implicating individuals’ rights, but what when the political process results in oppressive outcomes? “To the victor belong the spoils” does not make for good or stable government.
If we could establish a system wherein unanimous and universal consent was obtained before any course of action is taken, we could solve this problem. Having had the privilege of working in the United States Senate, I can attest, however, that such a system is simply impossible (though might be desirable, I suppose, if you wish for nothing collective to ever take place). Perhaps in a utopia where prosperity is unbounded, all bargaining power is equal, all actors are rational, and all contracts are voluntary, this could obtain. I will not, however, assume a can opener (or a spherical cow, if you prefer).
The only solution, alas, brings us back to the start. “We the People” must take seriously our obligations to respect the “unalienable rights” of each individual within the body politic. Government must recognize that, if it is to truly operate by the “consent of the governed,” it cannot act in ways contrary to the interests and consent of those being governed. Where conduct is proscribed, it must be proscribed pursuant to ensuring the rights of others, and not simply to limit the free exercise of one’s liberty in ways that the majority might find distasteful but that do not encroach upon another’s rights. Government needs to police the boundaries of individuals’ rights vigorously, but government also needs to recognize the right of each “to be let alone.”
I realize it may be naïve itself, but the only true solution is for each and every citizen to be ever vigilant and to truly “love his neighbor as himself,” respecting the neighbor’s difference of opinion and allowing for (and even defending, when necessary) that neighbor’s right to live as he or she sees fit – whether it’s your transgender neighbor, your Trump-supporting relative, your Shiite co-worker, your fundamentalist Christian friend, etc. It is not easy to do, especially when we think those with whom we disagree are wrong, immoral, both, and/or maybe even worse. It is exacerbated by the fact that our political order has become, all too often, an object lesson in the Nietzschean will to power – people want to foist their own conceptions of “good” and “right” on others, being so convinced (or deluded?) of the uprightness of their own views that they seek to forcefully impose them upon others.
It is imperative to keep in mind: this is a two way street. It is too easy to get caught up in the cause celebre of the moment (be it from the right or the left), chock full of the moral certitude that usually comes alongside shortsighted, hubristic, and ad hoc notions of what “justice” looks like. [Suffice it to say, enough time spent amidst the ever-changing spirit of this age can quite easily lead one to concur with Justice Holmes’ sentiments about “justice“]. It is much more difficult to seek to advance values we care about while respecting others’ difference of opinion and being willing to coexist, even when it is uncomfortable. We do not have to agree with one another to make this experiment in self-rule work; but we do, at least, have to be willing to leave one another alone. Love is the preferable means to accomplish this; short of that, true tolerance can suffice (though I hesitate to use that word, given that those who invoke it tend to be the most intolerant of legitimate difference).
“We the people” is a beautiful ideal but also a dangerous fiction that can provide cover for many wrongs. We should not fetishize the principle, but rather we should understand it as an imperfect means to an ideal end. We must recognize that this imperfect means is capable of producing just as many injustices as any other system, thus requiring constant vigilance alongside true charity. We must actually tolerate difference – not just the “differences” we have grown accustomed to and thus “celebrate,” but also those differences we find jarring or disturbing but that nevertheless stop short of being invasive or violative of another’s rights. As Justice Brennan said, “[T]he Framers knew that liberty is a fragile thing. You can’t give up.” Let us, then, work hard to these ends, to be a body politic actually undergirded by the “consent of the governed,” so that we might truly secure the “blessings of liberty” to ourselves and our posterity.