The Consent of the Governed

by Steve Palmer

“It is certain that the most natural and human government is that of consent, for that binds freely, … when men hold their liberty by true obedience to rules of their own making.”, William Penn

 

King Constitution

It seems a paradox that people who claim to revere the rule of law, are sometimes the same people who would advocate disobeying the law.  How can someone advocate for the rule of law at the same time as advocating for civil disobedience, nullification or jury nullification?  Wouldn’t these activities undermine the rule of law and lead inevitably to chaos and anarchy?

The beginning of the answer to this paradox comes to us from Thomas Paine.  In Common Sense, a document which “challenged the authority of the British government and the royal monarchy”, Paine wrote,

so far as we approve of monarchy, that in America the law is king.  For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.

So the law, the king, is the Constitution.  Everyone, even our federal legislators, judges and executive officers, is a subject of the Constitution.  When our legislators write laws that violate the Constitution, it is our duty as citizens to defend the king….  To resist.  It is our duty as jurors to find accused violators of Unconstitutional laws to be not guilty and it is the duty of the state official to nullify Unconstitutional federal legislation.  The citizens and the States are empowered, and duty bound, to ensure that federal officials remain loyal to King Constitution.

The next piece of the puzzle comes to us in the often discussed Kentucky Resolutions of 1798, where Thomas Jefferson wrote, “whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force”.

Upon reflection, we may realize that disobeying a void law is like dividing by zero.  It can’t be done.  In order to be disobeyed, a law must first be legal.  Civil disobedience, nullification and jury nullification are ways for us to formalize the recognition that a law is void.

So the paradox is answered when we recognize that the lawless behavior comes from attempting to enforce an unconstitutional law, not from resisting it.

King Democracy

There was a time when most Americans understood these duties of ours.  Here in Pennsylvania, many of our citizens were involved in the underground railroad.  They risked their own freedom and prosperity in order to help escaped slaves find freedom in the North.  Northern juries often refused to find these people guilty and Pennsylvania’s legislators passed Personal Freedom Acts to resist the Federal Fugitive Slave Acts of 1793 and 1850.

More recently, some of us became complacent and took our Liberty, and the prosperity which accompanies Liberty, for granted.  Many of us forgot these important duties of ours.  Many of us even forgot about King Constitution.  We are taught in grade school that we live in a democracy and democracy means “majority rules”.  Whatever the majority decides must be obeyed.  In this view, the Constitution was just a set of rules for finding the will of the majority.

This idea is antithetical to our founding. The Declaration of Independence, our foundational document says,

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. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

The majority cannot vote to take away your Rights without your consent!

One important component of our democratic republic is decision making by a majority.  However, it is often forgotten that our democratic republic also depends upon mutual consent.  The majority may pass laws, but the majority cannot consent to them on behalf of the minority.

As the Continental Congress, and even William Penn knew, if we are not governed through consent, then we are governed through force… tyranny. Just like King George III, King Democracy is a tyrant.

Monopoly or Competition? 

Another common belief in America today is that the supreme court has the last word in deciding whether a law is constitutional.  In Supreme Injustice, Andy Quesnelle addressed this misconception. He wrote about the conflict of interest that occurs when the federal government is the sole arbiter.  Andy wrote,

In a conflict between A and B, we, as a society, do not permit A to be the sole judge of who wins. Nor do we allow B to do so. The reason is simple. If A can decide the merits of his own conflict with B, B loses, every time. Conversely, if B can decide the merits of her own conflict with A, B wins. Its simple human nature. No person can be trusted to be the judge in their own case.

That is one reason that it would make no sense for the federal government to be the sole arbiter. Another reason is that competition will improve the quality of the supreme court’s decisions. Without competition, the supreme court can look at these words,

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

and decide that they give the congress the authority to determine how much wheat a Pennsylvania farmer may grow on his own farm to feed to his own hens.

It is part of the American experience that monopoly power reduces quality and competition increases quality.  Why should this be any different for interpreting the Constitution?  The federal government has declared a monopoly for itself which doesn’t exist.  Rather than blindly submit to the monopoly, the States may – the States must – decide for themselves whether a law is Constitutional.  In addition to providing a check against bad decisions, this oversight also promotes good decisions from the federal government.

Like the People, the States have the power and the responsibility to refuse to consent to Unconstitutional laws.  We must all make sure that our own State officials are aware of this responsibility.

Steve Palmer is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given

Tags: Liberty, We the People