“The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago.”
“If any considerable number of the people believe the Constitution to be good, why do they not sign it themselves, and make laws for, and administer them upon, each other; leaving all other persons (who do not interfere with them) in peace?”
I’ve said this many times in the past, but in case you have forgotten, let me refresh your memory; the Declaration of Independence states that government derives its just powers from the consent of the governed. I know I often say I want people to stop and think about something, but this time I’m serious; I want you to actually stop reading and think about what consent of the governed actually means to you.
First of all, let’s discuss consent itself. Consent is when an individual, or group of people, agree to a proposal, an idea, or a course of action presented to them by someone else. For instance, if you say to me, “Let’s go to Disneyland” I would have to give my consent to go with you; unless of course you wanted to kidnap me and take me against my will.
However, there are multiple forms of consent, and a few of them need to be discussed before I can move on to more important issues. The first of these deal with the difference between unanimous consent and majority consent. The best way to explain the difference is to use an analogy.
Let’s say there are 10 friends standing around together and one of them suggests they all go do something together; like attend a ball game or a concert. For that to happen, all 10 must agree to do it for it to be unanimous consent. Now if only 6 agree to do it, but the other 4 tag along just to be with their friends, then that is majority consent; which is another way of saying, a democracy.
So the first thing we must ask ourselves when discussing the idea that government derives its power from the consent of the people is, is that consent unanimous or is it majority consent; and even more importantly, can the consent of those who came before us bind us, as free men and women, to a system we have not overtly given our consent to?
As is usually the case when I write these commentaries, one subject tends to cause me to think about other related subjects; and this instance is no different. So, regardless of whether our system of government was consented to by a majority or the unanimous voice of all, the following question must be asked if we are to come to an understanding if our government is, indeed, legitimate: Who were the parties that consented to this system of government? Gee Neal, I thought you were smarter than that. The answer is we, the people; or at least those who lived before us in the year 1789.
Okay, let’s run with that idea and see where it takes us. Did the people living in 1789 unanimously consent to this system of government, or was it agreed to by only a majority; or quite possibly even a small minority? If it wasn’t all of them, or at least a majority, how can it be said that this government came into existence by means that could be considered as being by the consent of the people; when a majority of the people never had the chance to vote either for or against it? So, if what you are saying is true, then this government does not exist by consent of the people; and is therefore in direct opposition to what the Declaration of Independence says is the source of all authority for systems of government; the consent of the governed.
Getting back to the question that started this, who were the parties that had the authority to either consent to, or reject this plan for our current system of government? To truly answer that question we must delve into an area that complicates matters somewhat; what type of system existed at the time and what was being proposed by the constitution, and to whom or what would its powers of governance apply?
Aside from the fact that the constitution is a document that outlines the structure and powers given to a system of document, what else was it? Come on, put on your thinking caps and exercise that gray matter between your ears a bit! Do you give up? Okay, it was a replacement for the system of government that already existed; the one established by the Articles of Confederation.
The obvious question then, at least for me, is to whom did the Confederation government apply; who was it created for? The answer, however, may not be what you thought; it was established to represent not the people, but the States as sovereign and independent political entities. The Articles of Confederation were written by the 2nd Continental Congress and then submitted to each State, whereupon each State, acting as a sovereign and independent entity, voted either to accept or reject them. In short, the Articles of Confederation were consented to by the States, to act upon them as sovereign and independent entities.
The people already had systems of government, having established them by the ratification of the various State constitutions; why would they need another system of government superior to the ones they had created through their State constitutions?
This is important, so bear with me. So what we had was the individual State governments; whose power was to directly affect the lives, liberty and property of the people living within each individual State, and we had a central government whose power and authority only affected the States in their independent and individual capacity. That system, with two separate political powers, each with their own sphere of power and authority, was what is known as a federal form of government.
The constitution, both by the wording of the document itself, and in the manner in which it was consented to, changed all that; establishing a national form of government. Before I get into that in any great detail I must bring one point to the forefront of our discussion. If the Articles of Confederation were lawfully ratified, then that document was considered as binding upon all the parties involved; it was, in fact, the acting supreme law of the land in 1787.
So, when those men were sent to Philadelphia by their respective States, they were given explicit instructions to come up with proposals to modify the Articles of Confederation so that they might meet the needs of the Confederacy; not abolish the Confederacy and establish a Nation under a stronger centralized government. So, in short, what those men who drafted the constitution did was against the law and against the will of those who sent them to Philadelphia in the first place; their State Legislatures.
Not only was the finalized document they presented to the States created illegally, the manner by which it would go into effect or be rejected also violated existing law. If the Articles of Confederation are to be considered as having been the law by which the existing government derived its authority, then Article 13 of that document MUST apply to any changes made to that system; including its abandonment and subsequent replacement with another form of government. Article 13 of that document clearly states, “And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.” (My emphasis)
Was the constitution agreed to by the Confederation Congress as prescribed by the Articles of Confederation? No, it was read and argued over, but a vote was never taken either in support of, or in opposition to it; it was merely submitted to the States so that they could submit it to ratifying assemblies as those who drafted had demanded they do.
Did the State Legislatures vote to either adopt or reject the proposed constitution as per the requirements found in Article 13 of the Articles of Confederation? No, they did as they were told and called for ratifying assemblies comprised of the people; which weren’t truly representative of the people from all walks of life, only those with close ties to business, commerce, banking, and politics; with a smattering of lawyers tossed in for good measure.
So what in effect happened was the existing federal system of government was to be abandoned, to be replaced with a national system; deriving its authority from and affecting the people directly’ yet the broad spectrum of the people were not represented at all in either the drafting of the document, or in its implementation. And yet people still say that our government derives its authority from the consent of the governed, when the majority of the people alive at the time of its inception had no opportunity to voice their consent or opposition to it?
I didn’t consent to it, at least not explicitly; which leads us to two other forms of consent, overt and tacit. Overt consent is when one person, or group, comes out and expressly state their consent for something. When you sign a contract, or apply for a loan, and you sign your name to that document, you are stating that you have read and understand the terms explained therein, and you consent, or agree to them. That is overt consent in a nutshell.
Tacit consent, on the other hand, is when you remain silent about something, even if you know it to be wrong, and your silence, or lack of opposition to something, is taken as consent. If you vote, you are agreeing to the idea that this system of government has authority over you and your life; regardless of whether or not your choice of candidate wins an election. You can complain that your candidate did not win, but you CANNOT, and this is vitally important for you to understand, you CANNOT complain about what government does while those you oppose are in office.
By you voting you are giving your consent to the idea that we have this system of government were the elections are a crapshoot; that sometimes you’ll get a candidate that does things you personally agree with, while other times you’ll see candidates elected who do things you don’t like.
You see, government, especially the form brought to life by the adoption of the constitution, implies that it is supreme over the lives, property and liberty of those it governs…the people. This government can enact laws and enter into treaties that burst the bubbles which had separated federal from State authority under the Articles of Confederation. This government can now tax you for whatever purpose it deems in the general welfare, and there’s not a damned thing you can do to stop them from destroying the liberty all systems of government are supposed to secure.
Then on top of all that this document that is so revered by the people establishes a 3rd branch of government that has given itself the power to determine whether the other branches of government are exceeding their delegated authority. If you ask me, that’s like choosing one of the inmates in a prison to be the warden of that prison; what could possibly go wrong with that scenario?
Thomas Jefferson, you know, the guy who said all men were created equal, and that we all had certain unalienable rights, once said that the federal judiciary, (the Supreme Court and all the subsidiary courts established by the unconstitutional Judiciary Act of 1789) could shape and twist the constitution to whatever they pleased…which they have.
You see, although you may give your tacit consent to this monster you call government, but those who were alive during the years that saw it being a mere proposal for a new system of government were tasked with either giving their express consent for this system, or rejecting it. Some felt it could be improved upon by certain modifications, or amendments. Others felt as I do, the plan sucked and that it should be rejected entirely.
I have a pretty good idea as to how people would answer this question, but I’m going to ask it anyway. If we did not have our current form of government, if we only had the State governments, and some group of men were to provide a plan for a strong centralized government that could possibly encroach upon their rights and liberty, but would also provide them the means of imposing their will upon those they disagreed with, would the people overwhelmingly support such a plan or would they choose to remain under smaller, more localized government, with a much better chance of preserving their liberty?
From what I’ve seen and heard people say today, I’d be shocked if the people today would even demand that such a system include a bill of rights; placing limits upon a system of governments ability to infringe upon or violate their rights. All the people today care about is in direct opposition to what JFK said just a few short decades ago, “Ask not what your country can do for you, ask what you can do for your country…”
Those who loved liberty saw the inherent dangers of this proposed plan for a new system of government, and they tried to warn the people about what would happen if they adopted it.
On June 4, 1788 Patrick Henry addressed the Virginia Ratifying Assembly with the following remarks, “…give me leave to demand, what right had they to say, We, the People? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, who authorised them to speak the language of, We, the People, instead of We, the States? States are the characteristics, and the soul of a confederation. If the states be not the agents of this compact, it must be one great consolidated national government of the people of all the states.”
Now this may seem trivial to people today, but back in 1787 it was HUGE, as it was a fundamental shift from a federal form of government; established by and for the States, to a national government; by and for the people. This change was so alarming that Patrick Henry warned, “Here is a revolution as radical as that which separated us from Great Britain. It is radical in this transition; our rights and privileges are endangered, and the sovereignty of the states will be relinquished: And cannot we plainly see that this is actually the case?” (Speech to Virginia Ratifying Assembly, June 5, 1788)
In his first Letters from a Federal Farmer essay, Melancton Smith wrote, “This consolidation of the states has been the object of several men in this country for some time past. Whether such a change can ever be effected in any manner; whether it can be effected without convulsions and civil wars; whether such a change will not totally destroy the liberties of this country — time only can determine.”
Samuel Bryan, writing as Centinel, had this to say about your beloved constitution, “…that it has none of the essential requisites of a free government; that it is neither founded on those balancing restraining powers, recommended by Mr. Adams and attempted in the British constitution, or possessed of that responsibility to its constituents, which, in my opinion, is the only effectual security for the liberties and happiness of the people; but on the contrary, that it is a most daring attempt to establish a despotic aristocracy among freemen, that the world has ever witnessed.”
Those are all strong words written in opposition to the constitution, yet they went, for the most part, unheeded, and the constitution was adopted and put into operation. Now here is where the topic of consent gets interesting. Those who were alive in the year that saw the constitution adopted consented to it; at least some of them did. What about when those people died; is that consent passed on to future generations without their ability to decide for themselves how they will be governed?
In a letter to James Madison, Thomas Jefferson wrote something that must have come close to sending Madison into a panic, “The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government. The course of reflection in which we are immersed here on the elementary principles of society has presented this question to my mind; and that no such obligation can be transmitted I think very capable of proof. I set out on this ground which I suppose to be self evident, “that the earth belongs in usufruct to the living;” that the dead have neither powers nor rights over it.”
So, according to Jefferson, the dead have no right to bind the living to anything; including a system of government; that the living are free to consent to, or reject any system they believe may not serve their best interests, or preserve their liberty.
Jefferson may have supported this system, he may have even served as President under it, yet he remained steadfast in his belief that if the people should ever choose to abolish the system, or sever the ties that bound them to it, they should be free to do so. In his first Inaugural Address he said exactly that, “If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”
He did not say that they had to ask permission from the government itself to leave the Union, nor that they required the unanimous consent of the States to do so; he only said ‘ let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.’ What that means is that Jefferson understood that their reasoning might be wrong, but it was nonetheless their right to make that decision for themselves, and to not be coerced into remaining in a Union they no longer wanted to be a part of.
Three of the States that actually consented to this constitution also included declarations stating that should this system of government they were agreeing to ever became oppressive, they retained the right to revoke their consent to it and regain their status free of its authority and jurisdiction. One of those States was Virginia, and we all know that the government established by the constitution refused to allow Virginia, and 10 of her Southern compatriots, from exercising that right. You call it the Civil War, I call it either the 2nd War of Independence or Lincolns War of Aggression; depending upon the mood I’m in.
Regardless of why those 11 States chose to secede, be it slavery, tariffs, or the fact that the Yankees had funny accents, is not relevant, what is relevant that as the parties that had originally consented to this system of government, they had the right to revoke that consent and return to their original status as if the government had never held any jurisdiction over them; and good ole Honest Abe said, “The hell you say! I’m a coming with an army and I’m gonna beat you into submission.”
Yeah, and you have the gall to say THAT’s consent of the governed?
What if you, not me, but YOU decided that you no longer liked this system of government, that you felt it had become tyrannical; that it was violating your rights and imposing taxes that strangled your ability to live a comfortable life; could you just up and say, “You know Uncle Sam, it’s been fun while it lasted, but you’ve become rather abusive in your old age, and I think it’s time you and I separated so that I can move on with my life.” You think government would just up and let you go; give up all those taxes they could squeeze out of you? You think that if you were pulled over for violating some federal drug or gun law, the cops would just let you go because you told them that you and Uncle Sam had parted ways?
If you find yourself in an abusive relationship, you can always leave; there’s always a way out. You can seek a divorce, or move away from the person who was abusing you; filing a restraining order against them. But those remedies don’t apply to government. Uh, uh, you’re in this for life bitch, and if you try to free yourself from the authority and jurisdiction of this system you’ll find out just how evil a master it has become. I’m not a big fan of Daniel Webster, but he did once say something that I wholeheartedly agree with, “There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.”
Those men existed in 1787, and they wrote the plans for a system of government that would give them the power and authority to become masters; and the people consented to it. Yet I didn’t, you didn’t; in fact, nobody alive today has formally consented to it. So this government goes on thinking that by your participation in the voting process, or your silence in opposition to what it does, you have given your tacit consent to its continued existence.
So, if you believe in the principle of consent of the governed, and I mean truly agree with it 100%, you’d allow me, and those like me, to return to our status as free individuals; not bound to this system, or under any obligation to obey its laws, or pay the taxes it imposes, so long as we brought no harm to you, your property, or your liberty.
If you wished to formally remain under the authority and jurisdiction of this evil thing you call government, go right ahead; for it seems the world is full of people who are willing to give up their freedom for the chains of servitude; I’m just not one of them.
I am one of the governed, and I do not consent!
So what does that make me when my voice is ignored and scorned by those who bow down and worship those who would be their masters? The only word that comes to mind is slave; and if I’m not mistaken slavery was abolished in 1865; or did the end of the Civil War only mean that we all became slaves to the general government; as it no longer seemed to be within our power to shake off its control and authority over us.
But these are complicated issues; well beyond the 3rd grade education you got at the hands of your state run indoctrination centers you call public schools. So go back to your TV’s, your Facebook, your Twitter, and let your brain cool down; all will be well, Uncle Sam says so each year in the State of the Union address. All you gotta do is have a little faith, and obey the rules like good little slaves.