A Return to Government by Consent: A Response to James Rogers

At the Liberty Law Blog, Professor James R. Rogers makes a sweeping claim that Americans no longer believe in the principle of consent ensconced in the Declaration of Independence.

While “Americans at the Founding took seriously the idea that their consent could be conferred by their representatives,” Americans today do not.

On both left and right, Americans now talk about taxes being forced on them to pay for things for which they disapprove, even though their respective legislatures adopted the taxes. I doubt many Americans today seriously believe that they’ve consented to most of the laws and taxes that their legislatures adopt.

He asks rhetorically, “What changed?”

It’s not so much that the people misunderstand basic American principles and institutions (although far too many do) but that they are reacting to the basic reality of how government today operates.

The critical component Rogers leaves out of his narrative was captured with succinct clarity by Steven Hayward just days before the 2016 Election: “Elections no longer change the character of our government.” This state of affairs—and not the attitude of the whole people as Rogers contends—is what strikes at the very heart of the principle that just government is founded upon the consent of the governed.

For decades, Americans have noted their displeasure that the government is not securing their interests. From curbing illegal and excessive legal immigration to ending “free trade” agreements that mainly serve the interests of the highest bidding cronies and rival Tolstoy’s War and Peace in length, the views of many Americans have not only been neglected in the halls of Congress but actively have been undermined. And even when their views somehow manage to get enacted into law, such as in the 2006 Secure Fences Act signed by President Bush and passed overwhelmingly by a bipartisan Congress, these laws too often go unenforced. (Regarding the 2006 law, the Department of Homeland Security of course failed to follow through with building the hundreds of miles of double layer reinforced fencing on the border as mandated by the law.)

Are the American people wrong to grow weary of this or to wonder if they are being played for suckers?

Even more pervasively, our representatives in Congress regularly delegate their legislative powers to various agencies and regulatory commissions because they want to avoid blame from constituents back home for unpopular decisions. Congressional delegation of constitutionally delegated authority, which the Supreme Court began “constitutionalizing” in J.W. Hampton, Jr. & Company v. United States (1928), has effectively transferred the bulk of lawmaking power to the administrative state, whose underlings are entirely unaccountable to the people.

For example, in 2014 the EPA created the Clean Power Plan through authority supposedly granted to them by the Clean Air Act. The CPP set carbon dioxide emission targets for all fifty states, which would have sent utility bills through the roof if the plan was fully implemented. From a constitutional perspective, the EPA clearly took it upon themselves to issue such a rule apart from specific congressional authorization, and this is a clear violation of Article I’s holding that “all legislative Powers herein granted shall be vested in a Congress of the United States.” Even the liberal law professor Laurence Tribe noted at the time that the EPA “was acting as though it has the legislative authority anyway to re-engineer the nation’s electric generating system and power grid. It does not.” And this is just one of an endless list of examples of how bureaucrats who are insulated from electoral politics routinely run roughshod over the consent of the governed—and ultimately govern in place of the people’s representatives.

Thus the disconnect Rogers observes in our modern political life is due to the dominant place the administrative state has in our regime. It seems a bit presumptuous, then, to place all of the blame on the American people for this state of affairs. After all, until the 2016 election, they hadn’t even been offered a true alternative on the presidential level since Reagan faced off against Jimmy Carter. The American people, therefore, shouldn’t be faulted for failing to make choices that weren’t even before them.

In 2016, Americans who were tired of being taken for a ride by the political class finally got the chance to make a choice that could re-establish their sovereignty. In electing Donald Trump, they rose up to defend their sovereignty and choose to secure their interests rather than those of the Davoisie and their collaborators in Congress. After hearing grandiloquent soliloquies made by “constitutional conservatives” and “full-spectrum conservatives” they picked Trump, who was the only candidate who spoke clearly about the basic principle that just government is derived from the consent of the governed.

The people still understand that they—and not some elites in a faraway elite residing in some remote capital city—know what is in their own best interest. They know that they have not, in Jefferson’s memorable formulation, “been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.” Far from rejecting the principles of the Declaration, they are affirming them with a manly self-assertiveness that is remarkable considering all the opprobrium and vitriol the ruling class is constantly launching in their direction.

The American people are willing to take part in self-government. The only thing remaining to be seen is if those they put into office will hold up their end of the bargain.

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3 responses to “A Return to Government by Consent: A Response to James Rogers”

  1. It’s a little more complicated than that. Our politicians deserve much of the scorn they receive, but they did not elect themselves. What do “we the people” actually want from them? What does it mean that we want our views upheld? For millions and millions of Americans – including many who voted for Trump – it seems to be we want entitlements, we want a safety net, we want a government that will hug us, burp us, wipe our noses and clean our behinds, all the while telling us that entitlements aren’t welfare because we paid into them, and that somehow being dependent babies doesn’t make us dependent babies.

    All efforts at improving government founder on this point, the fundamental contradiction between the welfare state – which some think can be pushed back to the 1950s where it “worked” – and the fundamental principles of our country. And the fundamental principles upon which our country were founded were not unlimited self-government, but rather that government exists to protect our inalienable rights (basically life and liberty), which does not include “free” stuff stolen from others. Government’s legitimate powers depend on the consent of the government, but legitimate government depends fundamentally on protecting individual rights; we cannot consent to enslavement. Until that is understood, nothing will change.