The standard of constitutionality I laid out in my last post is difficult to reach. It does not grant politicians as much flexibility as they would like in shaping policy, because it forces them to cite a specific chain of authority instead of a general concept. Moral imperialists want to wield all kinds of powers for all sorts of reasons, regardless of whether those powers or reasons have enough support to be enumerated in the social contract. But naturally, these big government supporters don’t like to view such powers as illegitimate, because that would make them the oppressors. So in order to expand the label of legitimacy to cover more things, they’ve have attempted to change the definition of consent. Doing so enables them to broadly reinterpret constitutions in all sorts of loosey-goosey ways, with the ultimate objective of legitimizing government activity mentioned nowhere in the original social contract. This post will debunk one such fallacy – the myth of “tacit consent.”
To begin, I’d like to make an analogy. Let’s imagine that Sarah is an attractive twenty-year old college student. Like most girls her age, she likes to party every now and then, and the multitude of frats on her street give her ample opportunity. One night, she feels like a good time, so she puts on her sexiest black dress and goes to a college party with her friends. After a few hours and many drinks, she meets an attractive guy named Mark. They start flirting and dancing and feeling each other up. One thing leads to another, and before long Sarah finds herself making out with Mark in an upstairs bedroom.
Now, imagine Mark were to shove her onto the bed, hold her down, undress her and penetrate her. Sarah does not want this, but physically she is not strong enough to get him off her, and mentally she is too shocked, confused, and terrified to verbally protest. By definition, that would be rape, because Sarah never consented to having sex. It would not matter that she hadn’t explicitly told him no. It would not matter that Sarah had given every indication of being flirtatious before that point. It would not matter if the frat had a reputation as a hangout for easy girls, or that most girls would have loved to have sex with someone as attractive as Mark. It would not matter that Sarah had worn a skimpy dress, or that she’d danced with him, or that she’d made out with him. Any of those things may have initially implied she might be open to having sex, but since she never explicitly said that she did, Mark had no right to assume it. He certainly had no right to forcibly hold her down on the bed and take her. It would be preposterous to say that she had consented to that aggression.
Now imagine that instead of remaining silent in terror, Sarah had clearly and explicitly told Mark to his face that she definitely, assuredly did not want to have sex with him. Imagine that he raped her anyway. How much more preposterous would it be for Mark to claim she had consented in that situation? If what Sarah’s location, outfit, and recent actions were insufficient to assume consent even in the absence of her explicit protest, then how much more absurd would it be to say that those things overrode her explicit protest? How much less of an excuse would Mark have to even pretend confusion about Sarah’s intentions?
Well, what big-government advocates need to realize is that no means no.
Consent is only consent if the person consenting does so explicitly. There is no such thing as implied consent, and there is absolutely no such thing as consent against one’s will. It runs contradictory to the common sense definition of the word for somebody to “consent” to something unwittingly. And yet that’s exactly what a huge number of political theorists are willing to pretend in order to make big-government seem more legitimate than it really is. They practically bend over backwards to accommodate their personal favorite government programs. They jump through hoops to justify the idea that failure to remove oneself and one’s property from an area is the same as actively submitting to the government which claims that area. The term they use for this preposterous notion is “tacit” consent (sometimes it’s also referred to as “implied” consent).
The theory goes like this. When a constitution is initially ratified by the people, its legitimacy can be readily measured by the people’s decision to ratify it. Whichever people accept the social contract, submit to the constitution’s authority and agree to be citizens of the new nation have formally given their consent to be governed. The more of those people there are, the more legitimate the government is. However, the trouble is that subsequent generations remain subject to this same constitution, while never having given their official individual consent to the government’s authority. It is often inconvenient and impractical to formally ask each person if they accept the new government’s authority or not. But more tellingly, it is dangerous to those in power to give the newly governed a real choice in the matter. Carl Watner from The Journal of Libertarian Studies explains how statist apologists responded to this problem:
“Many political theorists were caught on the horns of this dilemma. On the one hand, they believed in government by consent and in individual rights, but on the other, they were not prepared to accept the anarchist implications raised by either Filmer or Godwin. In order to try to salvage their own position, thinkers like John Locke developed and relied upon the doctrine of "tacit" consent to prove that existing governments did in fact rest on some sort of consent. "Tacit" consent meant that one accepted the government one lived under simply because one continued to live in the geographic area over which it maintained jurisdiction. Owning property according to governmental law and using government services of one sort or another indicated one's support. "To trace the history of the tacit consent doctrine is to trace" the "tortuous route whereby political theorists...attempted to void the anarchistic implications" of their consent doctrine.”
So, the theory goes that anybody who doesn’t physically leave the country has “tacitly” consented to live under that government’s authority. Simply assuming that the newcomers consent automatically is much more convenient to those who don’t want their power delegitimized. Unfortunately, it also defies logic and principle.
The most visible form of tacit consent theory in modern political debate is the classic line that “well, if you don’t like the law, then why don’t you just move? If you don’t want to be a part of our country, then just get out!” In case you haven’t picked up on it already, I think that argument is utter bullshit. Fellow liberty-lover Tom Woods agrees with me, and explains why very well:
So if tacit consent is baloney, then how do I respond to this dilemma? If any entity that governs without consent is illegitimate, and tacit consent does not count, then how can governments remain legitimate when governing subsequent generations? The trick, as I’ve explained earlier, is to keep the constitution strictly in line with the prevailing universal morality of the time. I recognize that it is impossible for government to get each and every single person to consent. But what separates me from most political theorists is that I’m comfortable with the logical consequence of that recognition: it is impossible for any government to be fully legitimate. That’s okay, and it doesn’t mean anarchy is the only option.
Illegitimate use of force on others is very bad, but as I’ve written extensively in prior blogs, it can sometimes be justified. What big-government backers refuse to admit is that it can only be justified to prevent an even larger initiation of illegitimate force on others, and that this severely limits the things which it is moral for government to do. Since mere residency in a place does not count as consent, governments really do have to whittle down their programs to the universally consensual parts. And if they don’t, people who object have no moral responsibility to obey the law, whether or not they are willing to move.