and I willingly give up our freedom and property for the benefits of living
in these United States? Do we tacitly consent to oppression by not moving to
another country? Do we tacitly consent to the authority of our governments by
not rebelling, by not throwing the tea into Boston harbor?
Locke and many today say "yes"; we tacitly accept the State by
paying our taxes, by receiving its benefits (such as property protection!),
and by not emigrating. They say we acquiesce in an implicit contract in which
we give up freedom or accept compulsion in exchange for other things that we
view is dead wrong. Why is it wrong? We are born into a system, we are
chained from the start. The deck is stacked against us. The State has powers
that it accumulated many decades ago, before you and I were born, and has
accumulated since. We can change our position only at great cost. If we
calculate whether to consent or not, we seemingly consent because we expect
that to fight will cost us dearly without our securing a gain. We are not
making a social contract freely entered into. There are guns to all our
heads, one of which is PAY YOUR TAXES. Protest that and you go to jail. Call
love their country – their area, their people, their culture, their
place. To move is a wrenching experience. Why should we have to move anyway?
So we stay on despite the State’s impositions. Call this consent?
State controls education. The State passes out favors to garner support from
intellectuals and the press. The State manufactures propaganda. The State
ties as many people up in the knots of social programs and subsidies as it
can. The State deifies itself. Basically, the slaves are indoctrinated to
love their masters and fear any other situation. How can anyone enter a
contract with open eyes and freely when the other side has educated you from
day one to pledge allegiance to it, to accept that the State is the source of
your prosperity, and to threaten you with loss of what you have if you
resist? If your education is so poor that you do not know where prosperity
and happiness come from – and they are not from the State – then
you are a sitting duck for all sorts of misinformation and propaganda. Call
consent is myth. What we really have is tacit submission. After reaching that
conclusion, I read Étienne de la
Boétie who practically originated the idea that
governments were upheld by consent. I discovered that he uses the word
"submit" five times and the word "consent" twice:
"It is therefore the inhabitants themselves who permit, or, rather,
bring about, their own subjection, since by ceasing to submit they would put
an end to their servitude. A people enslaves itself...gives consent to its
own misery..." Moreover, he speaks of consent to misery, not consent to
legitimacy of authority, which is Locke’s idea.
only reason that tacit consent has survived in our political thought is as a
convenient, albeit incorrect, explanation of how unpopular and illegitimate
States remain in power.
disagree on tacit consent. This is not a terribly serious matter. The
libertarian political philosophy in no way hinges on the concept of tacit
consent. Still, we should clear up our thinking about it. We do not want to
be led into related errors of thought.
one hand, the Voluntaryist’s
Statement of Purpose prominently mentions tacit consent, stating:
"Voluntaryists seek instead to delegitimize the State through education,
and we advocate withdrawal of the cooperation and tacit consent on which
State power ultimately depends."
same vein, Lew Rockwell has
written: "Along with David Hume and Étienne de la Boétie,
Mises saw that the state always rules with the tacit consent of the governed.
That doesn’t mean that at every step, everyone in society must approve
of what the state does. Instead, it means that a sizeable majority have
invested the state with a sufficient degree of institutional legitimacy to
keep the political system running. Otherwise, the state and its programs
U.S. Constitution was supposedly justified by the (explicit not tacit)
consent of the governed, a liberating idea with long historical roots.
However, the idea that governments exist only at the behest and sufferance of
those governed is so radical a political idea that it implies anarchy. After
all, if each individual can withdraw consent and secede, anarchy results.
libertarians think that to accept tacit consent as a reality is to accept the
legitimacy of the State. John Locke and the Founding Fathers, horrified at
the notion of anarchy being implied by consent of the governed, grasped the
lifeline of tacit consent. George
H. Smith writes that: "To trace the history
of the tacit consent doctrine is to trace a tortuous route whereby political
theorists have attempted to avoid the anarchistic implications of the natural
rights/social contract position." Both Smith and Carl Watner mention
that Robert Filmer and Josiah Tucker understood this, and Watner notes that
Lincoln’s First Inaugural referred to secession as "the essence of
anarchy." Smith notes that Adam Smith, David Hume and John Madison all
realized this clearly. He quotes Madison as finding "no relief from such
embarrassments [of anarchy] but in the received doctrine that a tacit
assent may be given to established Government and laws, and that this assent
is to be inferred from the omission of an express revocation."
eliminate the ill-conceived doctrine of tacit consent from our thought, then
we’ll want alternative explanations of how illegitimate States retain
power. That’s important. Understanding how rulers control their
subjects helps guide us in actions designed to undermine their power.
up so far, the idea that a government is legitimate only if it has the
consent of the governed is a valid libertarian idea, because government under
this doctrine is a compact freely arrived at by all participating individuals
who are also free to exit the agreement at will if their consent changes to
non-consent. The idea is very important historically because of its
liberating motivation. In this respect, Lysander
Spooner, in No Treason, finds that "nations and
governments, if they can rightfully exist at all, can exist only by
consent." This portrait of consent of the governed actually is one of
anarchism or self-government.
the idea of tacit consent is an ad hoc doctrine with no basis in libertarian
thought that says that people being coerced by a State assent to that State
by living in that State, paying taxes, receiving benefits, and not moving
the consent of the governed actually exist in any State? Obviously not,
because every State on earth coerces its people. Jim
Davies writes that consent of the governed is "nonsense
on its face; if I consent to your removing my property or damaging my person,
then you aren’t governing me at all – and vice versa."
Spooner launches a devastating attack on the notion that the United States
rests on consent. Here is a sample of some of Spooner’s arguments that
the government of the U.S. does not in fact rest on consent of the governed:
war waged by the North showed definitively that the U.S. government does not
rest on the consent of the governed, as theory might have it, but on
compulsion and force.
Constitution at its inception was consented to by only a small number of
people living in the country.
consent of that small number could not extend to future persons.
persons voted subsequently, that cannot be construed as consent. Voters,
being forced to pay taxes and being ruled in other ways, being "under
peril of weighty punishments" if they rebel, will vote in order to try
to relieve their condition. This in no way indicates that they consent to it.
5. In the
century after the U.S.A. began, only a small fraction of the people were
allowed to vote and still fewer actually voted, thereby limiting greatly any
consent to the Constitution, the government, or the laws promulgated by that
government and limiting the legitimacy of all of these with respect to the
payment of taxes can’t be construed as consent because taxes are
is nothing for a voter to consent to anyway, since the Constitution is not
and never was a valid agreement or contract.
voters cannot possibly be providing consent when the Constitution’s
powers are so vast that the lives, properties, and liberties of the people
are delivered up to the State by this document.
power can’t be legitimated or justified by consent of the strongest
party or by consent of the majority.
10. Voting amounts to
a situation in which a fraction of the population appoints agents who will
administer the government under the Constitution’s name. This however
cannot legally bind those others who do not so vote. And even that authority
is undermined by the fact that the principals (the voters) are unknown and
unnamed, their ballots are cast in secret, and they can have no
responsibility for the acts of their agents. The agents (elected officials)
do not know who their principals are either.
Hume, with whom Spooner was probably familiar, notes that
consent of the governed is "surely the best and most sacred" of any
foundation of government. But he scornfully and skillfully skewers the notion
that consent of the governed founds or has founded governments. These, he
says, arise from force, fraud, fear of punishment, violence, political craft,
conquest and usurpation. Voting he views as either controlled directly by a
select few or, if the multitudes are involved, led by an elite few.
tacit consent actually exist in a State? Spooner’s view is that
"It is not improbable that many or most of the worst governments –
although established by force, and by a few, in the first place – come,
in time, to be supported by a majority. But if they do, this majority is
composed, in large part, of the most ignorant, superstitious, timid,
dependent, servile, and corrupt portions of the people; of those who have
been over-awed by the power, intelligence, wealth, and arrogance; of those
who have been deceived by the frauds; and of those who have been corrupted by
the inducements, of the few who really constitute the government. Such
majorities, very likely, could be found in half, perhaps nine-tenths, of all
the countries on the globe. What do they prove? Nothing but the tyranny and
corruption of the very governments that have reduced so large portions of the
people to their present ignorance, servility, degradation, and corruption; an
ignorance, servility, degradation, and corruption that are best illustrated
in the simple fact that they do sustain governments that have so
oppressed, degraded, and corrupted them."
Spooner, support or tacit consent exists, but it is meaningless because the
consent arises from a coalition of people that includes those who are
deceived by the State, those who benefit from the State, those who are
blinded by the State, those who depend on it, those who fear it, and those
who do not know any better. Tacit consent is heavily influenced consent and
theory of tacit consent modernizes Spooner and adds several new and important
makes it possible for the largest government in human history –
I’m speaking of the U.S. government – to continue to rule in our
own country? The answer is complex. But it involves an enormous apparatus of
propaganda and legitimization by the media, the academic elite, bureaucrats
on the payroll, and special interests anxious to provide a cover for their
also involves buying off potential critics and radical dissenters from the
regime. And it involves the misuse of religion, whereby we are taught to
treat national symbols as sacred, worship the presidency, and regard the
political and bureaucratic class as some sort of exalted ecclesiocracy."
this theory, the State’s frauds and deceptions are put across with the
help of dedicated servants in the media and academia, as well as government
and special interest spokesmen who provide an overwhelming flow of rhetoric
based on false and self-serving ideas that include State-worship. Enough of
the people are fooled enough of the time to provide support for the State.
Hume suggests that established governments meet with the acquiescence of the
subjects, not their choice. They view support as a matter of obligation or
duty. As for tacit consent:
it be said, that, by living under the dominion of a prince which one might
leave, every individual has given a tacit consent to his authority,
and promised him obedience; it may be answered, that such an implied consent
can only have place where a man imagines that the matter depends on his
choice. But where he thinks (as all mankind do who are born under established
governments) that, by his birth, he owes allegiance to a certain prince or
certain form of government; it would be absurd to infer a consent or choice,
which he expressly, in this case, renounces and disclaims."
consent exists if men think they are choosing their rulers. However, when men
support a State out of duty or allegiance, tacit consent doesn’t exist.
Hume believes that allegiance underlies the State, not consent, tacit or
otherwise, to an imaginary contract.
exists, he says, because the subjects view it as necessary for the continuity
and existence of the State. And they believe this, in his view, because they
are Hobbesians. They (and Hume) believe laws, magistrates, judges and
authority are necessary to maintain a social order so that the strong do not
devour the weak and the violent do not invade the just. Cooperation and civil
society are out of the question without a ruling authority whom everyone
libertarians understand and agree that laws and judgments are essential for
social order. They do not agree that a monopoly provider of these
services is needed. Such a single provider, a State, makes no sense according
to Hume’s own goal, because it, being strong and attracting the violent
men to its powers, devours freedom, property, justice, the family, and
weakens civil society.
Hume’s theory of allegiance is correct, then weaning people away from
the State should focus on breaking down the notion that we must have a single
authority in order to maintain social order and breaking down the idea that
the State actually maintains social order when it does the very opposite! It
should focus on the alternative ideas that freedom of choice and movement
among several providers are better and encourage cooperation, social order,
reduced conflict, and a healthier and more robust civil society.
goes on to point out that many men have no "free choice," I would
say no opportunity, to leave a country because they lack the means and face the
barriers of language and custom.
tacit consent from the payment of taxes is a faulty way of judging a
not accept taxes out of a tacit consent of the State. We view taxes as better
to pay than not to pay or to leave the country. The costs of moving are very
high, and many other countries impose taxes that are just as high. We have a
choice among many bad alternatives.
we do not move does not imply that we would not be far better off without the
taxes. We would be better off without taxes. If we do not move, does that
imply we accept these taxes, that we consent to them? Yes. Does that mean we
believe ourselves better off with the taxes than without? No. We’d like
to see the taxes lifted.
to avoid taxes, we must incur a host of other costs. The State tries to set
the taxes so that it does not pay us to avoid them. They may be low enough to
accomplish that end; yet I’d still be better off without them. As Jean
Baptiste Colbert wrote: "The art of taxation consists in so plucking the
goose as to obtain the largest amount of feathers with the smallest possible
amount of hissing."
State says to us: You can’t go to the prom unless you wash all the
floors and do all the ironing for the next two weeks. We do these chores
because the dance is worth more to us. However, the chores (taxes) reduce our
happiness. Whenever we buy anything, our personal valuation exceeds the price
we pay. Taxes remove some of that excess of personal valuation over the
price. This is what a monopolist tries to do. Tacit consent only means that
we still find it worthwhile to live in a country. It says nothing about the
legitimacy or acceptance of the ruling authorities. Nevertheless, the State
reduces our happiness. We make a choice to remain, but it’s a choice
that is based on a reduced set of opportunities.
stay in the country does not signify consent to the government’s
authority as much as it signifies that our happiness at living here is great
enough that we can bear the State’s robberies and impositions; and that
the costs of moving elsewhere do not justify the prospective gains. Hence,
with respect to authorizing the State we live under, tacit submission better
describes our remaining in the country than tacit consent.
is an elegant and more general argument. Even if the State were not here, we
would stay where we are, so that tacit consent can’t legitimize a
State. If a State moves in and we remain, it’s not because we consent.
It’s because we submit.
Barnett makes the further argument that tacit
consent only is a possible justification of a State’s authority if we
assume that the government initially has the authority to command obedience,
but that is what tacit consent is supposed to indicate.
final economic arguments. (1) The tacit consent doctrine seeks to infer
legitimacy of the State from the fact that we remain in the country. This
assumes that all the benefits and costs of living in the country are mostly
linked to the existence of the State, which is of course false. The enjoyment
of Niagara Falls, a steak dinner, or a baseball game have something to do
with the State, but not much. (2) If the previous sentence is disputable,
which it is, that is because we do not know the benefits and costs of the
State in these instances. We can’t know them because there is no market
for the State’s services. It follows again that there is no way to
infer that anyone would be willing to buy into the State merely because they
remain in a country in which that State rules.
time you are tempted to say that States rest upon tacit consent, say instead
that they rest upon tacit submission. That conveys the notion that threat is
involved, that we go along despite the costs imposed upon us by the State.
move away from the issue of tacit consent by observing that both Spooner and
Rockwell in their discussions of tacit consent actually strike off in a far
more important direction: a "theory of rule." They mention a
variety of means by which rulers control their subjects. Understanding the
multiple methods, devices, ruses, and stratagems by which rulers build and
maintain power is critical in combating them.
important is a realistic and nuanced view of how States fail. Although we can
say that withdrawal of consent occurs when a State fails, it is an empty
statement. The critical issues are how and why this happens, and what roles
are played by errors made by rulers, by accumulated problems of the State,
and by parties anxious to seize control over a new State.
the Voluntaryist and Rockwell believe that if the governed withdraw consent,
then the government will fall. While this may be so, what happens thereafter
is exceedingly important. In case after case, another State replaces the
previous one. In other words, a small coterie of people seizes power and
imposes it on the vast majority, leaving the basic situation the same albeit
with a State of a different stripe. There are two policies that can avoid
this outcome. The first is gradualism, whereby the existing State does not
collapse but is instead reduced and restructured piecemeal. The second is a
widespread understanding of the direction and ultimate goal being pursued, namely,
reduction of State power and size to zero.
Michael S. Rozeff is a retired Professor of Finance
living in East Amherst, New York. He publishes regularly his ideas and
analysis on www.LewRockwell.com .
Copyright © 2009 by LewRockwell.com. Permission
to reprint in whole or in part is gladly granted, provided full credit is