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America's Counter-Revolution
The Constitution Revisited

From the back cover:

This book challenges the assumption that the Constitution was a landmark in the struggle for liberty. Instead, Sheldon Richman argues, it was the product of a counter-revolution, a setback for the radicalism represented by America’s break with the British empire. Drawing on careful, credible historical scholarship and contemporary political analysis, Richman suggests that this counter-revolution was the work of conservatives who sought a nation of “power, consequence, and grandeur.” America’s Counter-Revolution makes a persuasive case that the Constitution was a victory not for liberty but for the agendas and interests of a militaristic, aristocratic, privilege-seeking ruling class.

Sunday, November 09, 2008

Tacit Consent

On Friday I conducted a colloquium at Hendrix College in Conway, Arkansas, with the title "If You Believe in Nonviolence, You Should Be an Anarchist." (I'll post the link when it's uploaded to YouTube.) During the Q&A I was challenged by two professors who invoked the social contract and tacit consent in an effort to refute my claim that the state is founded on (the threat of) violence against nonaggressors. They argued that since we all tacitly consent to the state, its use of force cannot be properly regarded as aggression. Rather, it is merely a sanction against those who have violated their agreement to obey the state. (I apologize if I have not precisely captured their objection. I believe this is the gist of their argument.)

For the first time in a while this got me thinking about the curious principle of tacit consent. Here are the thoughts I jotted down today. (I'll be returning to this subject, I'm sure.)
  • When did I or anyone consent?(One of my interlocutors seemed to think this was an invalid, even unfair question.)
  • If I have tacitly consented to be taxed, why haven't I also tacitly consented to all the purposes to which the state puts my money?
  • Why can't I withdraw my consent?
  • How do I withdraw my consent? Must I move out of the state's jurisdiction?
  • If that is the only way, doesn't that imply that the state owns the territory?
  • How did that come about? (I'm thinking of Monte Python and the Holy Grail now; script is here.)
  • Presumably the state has obligations under the social contract. But what if the state defaults on its obligations? Does that nullify the contract?
  • Who decides when and if that has occurred? Presumably, the state's own courts.
  • Why do the state's courts get to judge a claim that the state has defaulted on the contract? Why not a truly neutral arbiter?
  • Is my consent tacit, unconditional, and perpetual?
  • How can that be?


iceberg said...

BK Marcus wrote eloquently on the muddled topic of "implied consent" a few years back. See here: http://www.bkmarcus.com/blog/2005/05/implied-consent-revisited.html

Sheldon Richman said...


Thomas said...

Crispin Sartwell has a chapter on social contract theory and consent in Against the State: An Introduction to Anarchist Political Theory that is worth reading.

Edward said...

I wrote something about this a few months ago:

Recently, I found a similar argument to the one I make in Rousseau's Social Contract when he discuss slavery. It seems he doesn't think consenting for progeny is possible, but requires it in his contract.

The Social Contract... I don't remember signing that.

Roderick T. Long said...

Sounds like your interlocutors were Immanent Liberals.

LarryRuane said...

When someone says I tacitly consent to government by continuing to live in its territory, I like to make this analogy:

You live in a large city, and every few years someone breaks into your home and steals some things. Finally the guy is caught, and the case goes to trial. The evidence that the guy took the things is overwhelming. His lawyer says, "Your Honor, the defense admits that our client took the things. But we will present evidence that Mr. Richman has consented to have his things taken from him."

"OBJECTION!" shouts your attorney, leaping to his feet. "Overruled," says the judge. "Let's hear the evidence."

"Your honor, defense has obtained police records indicating that Mr. Richman has been burglarized several times previously, after which he had every opportunity to move out to the suburbs. But he has chosen to remain in the city. It is clear, therefore, that he has voluntarily agreed to these takings!"

A wave of stunned murmuring sweeps across the courtroom.

(Sorry, I'll drop the theatrics.) What would your lawyer say to that? Obviously, he would say that the possibility of crime is not the only consideration in deciding where to live; that remaining in the city in no way justifies crime.

Actually, this analogy understates our case, because there is nowhere in the world we can go to avoid the State.

steven said...

I think that it's helpful to point out that when our nation was formed, there were so many disenfranchised people that the idea that the governed consented is just ridiculous. Blacks were disenfranchised, women were disenfranchised, as were many white males that did not own property. It has been estimated that no more than one in ten people, and perhaps as few as one in twenty people, were even able to vote at that time. How could those who were not even allowed to vote have been considered to have given their consent?

Anonymous said...

an obvious read is Lysander Spooner's No Treason VI, The Constitution of No Authority.

Sheldon Richman said...

True. By the way, I highly recommend Roderick Long's paper on immanent versus vicarious liberalism, which he links to in his comment above.

Jimi G said...

Logic will get you nowhere with statists.

They are religious fanatics.

You'd have more fun teaching pigs to sing.