Consent of the Governed

“...governments are instituted among men, deriving their just powers from the consent of the governed.” - Declaration of Independence

The words above are from the second sentence of paragraph 2 of the Declaration of Independence. Most of us are aware of, and much has been said about, the preceding sentence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” There was a time when most people could probably recite that first sentence from memory. It is my belief that there has been precious little conversation about, and focus on, that second sentence. In light of the backlash against the influence of money on electoral politics and governance in general, particularly since the 2010 Citizens United v. Federal Election Commission ruling, it seems an appropriate time to give the notion of “consent of the governed” a well-deserved closer look.

I would like first to examine the concept in terms of its historical context. Passage of the Stamp Act in 1765 was the seminal moment in the increasing, though by no means universal, idea that the colonies must seek their independence. Unlike the passage of the Sugar Act the previous year, this legislation spurred action as well as outrage; this combination culminated with the signing of the Declaration of Independence eleven years later. Despite more widespread acceptance for the notion of independence, there was great disagreement over which specific path to follow. Sentiment for Burkean constitutional monarchy was still popular, as ties to England, physical and emotional, remained strong. Some favored the Aristotelian vox populi (yes, I know I used Latin to describe a Greek concept – if they had offered Greek in high school....). Finally, there was a strong push for the type of representative republic in which we live today. Regardless of the particular ultimate path, all on some level incorporate the Lockean concept of “consent of the governed.” All three paths though, would, of necessity, carry a different definition of consent.

It is the very definition of the concept of consent that I believe needs to be discussed today. The word “consent” as defined in Merriam-Webster is essentially an agreement between parties; in other words, a contract. It seems implicit to me that a contract requires good faith by all parties for the contract to be meaningful, and not void. I'm not an attorney, but it seems to me that if one party to the contract were to mislead the other, or provide distorted information, those actions would render the contract void. We give our consent to those who govern by casting our ballot in an election; we trust that the information we receive from the elected party will be accurate and given in good faith.

Return with me now to today's time, the time of Citizens United, 501(c)(4) organizations, the insidious situation with private prison contractors and more. When our elected officials, those charged with passing legislation, neither read nor write said legislation, but rather sub-contract that work to those who fund their eternal re-election efforts, they are not giving us accurate information, nor are they acting in good faith as parties to the contract. In other words, it's less about the amount of money involved in electoral campaigns and daily governance than about the distortion and perversion which that money creates.

Several notable efforts, successful or otherwise, have been made to address the issue over the last forty years. Unfortunately, these efforts have expected a certain level of “self-policing”, as legislation to hamper the skunks is being written, in large measure, by those same skunks. In drug testing for professional sports, the cheaters are always one step ahead of the testers; it is the same in politics given the influence of money and the constant search for re-election.

If the need or desire for money were removed, if candidates didn't have to worry about re-election, might we see a significant change? I won't argue that we can eliminate simple greed, but I believe we could make a significant dent in the problem by eliminating the drive for campaign cash. I'm not sure we will ever see mandatory public financing, which creates a First Amendment tangle. I do believe that we can change the dynamic by instituting term limits. Term limits were included in Article V Paragraph 2 of the Articles of Confederation, under which the nation existed from 1777-1789. There is no provision for term limits in the Constitution, but neither is there a preclusion. Article I Section 4 leaves the manner of holding elections to the states. Further to that point, the 22^nd Amendment to the Constitution, passed in 1947, prescribes presidential term limits – we've opened that door already. There are limits to our rights, even our right to free speech (yelling “fire” in a crowded movie theater).

Term limits would not be a panacea. There would certainly be people running for re-election in the House, and thus an opportunity for skewing the system and manipulating the information. I believe, however, that with a shift away from “career” politicians, we might see the pendulum swing more in the direction of the governed, away from the governors.

“All I want is some truth, just gimme some truth.” - John Lennon