West's Founding V: Consent of the Governed

Moving along to chapter six of the first part, West reminds us that the Founding idea was that government was created by the consent of the governed, and is sustained only by the continuing consent of the governed. There are at least three kinds of consent:

1) The initial formation of the social contract; 

2) Period elections of representatives, which provide the citizenry with the chance to alter the government's membership according to their will;

3) The right to withdraw consent, i.e., the right of revolution should the government fail to abide by the contract of (1) or the fair elections of (2). (Today we will only treat (1) and (2).) In the absence of a declared withdrawal of consent, consent is supposed to be sufficient.

In his discussion of (2), West approaches one of the criticisms leveled against the Declaration: that it is not a democratic document per se, but would allow for any form of government that would secure natural rights. West argues that this view is wrong, as the Declaration's complaints against the king include specific complaints that he refused to honor their democratically elected legislatures. He ignored their decrees, and he taxed without their consent, and this anti-democratic character of his rule is part and parcel of the violation of natural rights. 

Why should this be so? When people move out of the state of nature by creating a government, they might consent to many potential forms. Locke -- West does not mention -- cites the story of Jeptha from the Book of Judges to give an early account of how this might work. (This is in Locke's First Treatise on Government, which almost no one reads; everyone reads the Second). As long as everyone consents to the bargain, and the new authority secures their rights, isn't the bargain fair? 

West thinks that the Founders did not think so. He says that the idea of representation is so central to their concept of what just government looks like that it constitutes an entire second criterion to what the Founders thought just governance was about. 

This is not a view I've held myself, but I can see where he is going with it. I have tended to say, "The sole legitimate function of government, according to the Declaration of Independence, is to secure the natural rights of the people." West's argument is that a just government actually has to do two things, according to the Declaration: it has to secure natural rights effectively and not subvert them, but it also has to ensure the people are able to fairly elect representatives who will provide the ongoing consent that the nation requires. 

If so, this is definitely an outgrowth of the British tradition of which the Founders were part. The kings of England and the United Kingdom slowly lost their ability to rule without the consent of Parliament, especially in matters of taxation. The presence of representatives fairly elected, without whose consent the king could not act, is a feature the British kings unsuccessfully resisted. It is plausible that to a British national of the eighteenth century this concept of being due representation was as fundamental as the concept of natural rights. Without representatives, there is no guarantee that initial consent will continue; if stripped of honest representation, the people have every right to withdraw from the contract.

Note that this representation is legislative in character. The executive need not be elected; he might even be a king, or he might be elected indirectly as in our Constitutional order. The legislature is where our right to representation firmly resides, as it was the legislature that was supposed to be the first and most powerful branch. The First Amendment begins "Congress shall make no law..." because if Congress cannot make the law, the executive cannot enforce the law, and the courts cannot try cases regarding that law. 

Our whole system has slipped out of gear on that issue. Since the New Deal's establishment of a vast Federal bureaucracy, the production of laws has become more a matter of executive rule-making than formal legislation. Courts have set themselves up to create interpretations of laws that are in effect new laws, thus legislating from the bench. The actual legislatures have far less power than designed, and the demon of being subject to legislation without representation has escaped.