Legitimacy and Consent
Rasmussen finds:
Fifty-six percent (56%) agree with the view that governments derive their only just authority from the “consent of the governed.” Interestingly, one-in-four Americans (25%) disagree.
Isaac Chotiner seems a bit distressed that the 25 percent number is so high. But I don’t think people should embrace this consent of the governed notion, and my understanding is that most political theorists would reject it. How would you measure consent? And how much consent do you need? After all, there’s no set of rules for governing society that everyone is going to agree to. Legitimacy is better thought of as deriving from substantive criteria—legitimate regimes govern with a decent respect for human rights and political freedoms and afford people a reasonable chance to change policies from within the system. And the way the relationship between consent and legitimacy works, is that when you have a legitimate rights-respecting regime people tend to treat it as legitimate, which is to say consent to following the rules.
89 Responses to “Legitimacy and Consent”
Register
RSSLogin
Topic Cloud
ArchivesBlog RollAbout Matt YglesiasContact Me
Donate
July 6th, 2009 at 1:45 pm
I think Yglesias is actually very good here. The difference is one between constitutionalism and populism. I am happy to see Yglesias on the constitutionalist side.
July 6th, 2009 at 1:52 pm
My question is: how many American poll respondents even understand what that question means? Considering the fact that the statement itself is open to widely differing interpretations by even the most educated people, I’d say the answer would have to be “not many.”
July 6th, 2009 at 1:53 pm
Apparently the Royalist Party’s political chances arent’t quite as bad as they suspected.
July 6th, 2009 at 1:54 pm
c’mon, matt: the “how do you measure it” question is an epistemic one, which misses the point of what consent-theorists are claiming.
furthermore, the “how do you measure it” question can just as easily be wielded against your “substantive criteria” such as “decent respect for human rights.” oh yeah? how much is “decent”? how much is a “reasonable chance” of changing policy? why is that easier to measure than a popular vote?
look, i agree that the “consent of the governed” line gets too little scrutiny due to its place in a text which we wrongly treat as gospel. and i agree that political theorists have made lots of good critiques.
but the “how do you measure it” line is one of the less interesting places to attack.
July 6th, 2009 at 1:58 pm
Countries can have constitutions that make no sense and are terribly unjust. I find it hard to believe that adherence to a constitution is a sufficient criterion for a legitimate government.
The problem is that we need a universal standard of justice to determine whether a constitution is just or not, and that is some very tricky philosophy.
Practically, governments are conferred legitimacy by the consent of the people. When a sufficient proportion of the people do not consent, people revolt and the government changes.
Another pragmatic standard for legitimacy would be inter-governmental recognition. If enough other governments around the world recognize a government as legitimate. Perhaps it should be considered legitimate.
July 6th, 2009 at 1:59 pm
Didn’t Matt ever read John Locke, or, like, anything about the political ideology of the founders of the United States?
The contrast to “consent of the governed” is the divine right of kings, or other similar justifications for authoritarian state power being imposed upon people. In other words, this phrase is just supposed to invoke the republican form of government, in which the citizens have a say in choosing those who will direct the power of the state.
So when Matt writes that “legitimate regimes govern with a decent respect for human rights and political freedoms and afford people a reasonable chance to change policies from within the system,” he is actually just articulating exactly what this phrase is intended to imply.
July 6th, 2009 at 2:04 pm
How would you measure consent?
They’re called “elections”.
July 6th, 2009 at 2:04 pm
My understanding of Locke is that the “consent of the governed” idea doesn’t even imply that absolute monarchist governments are illegitimate. It’s just that even Louis XIV’s authority derives from the consent of those he rules, rather than from God. Their consent isn’t expressed by getting a say in the government, but by following the laws, paying their taxes, and so forth.
That is to say, the idea is a descriptive one, and not a normative one. You can tell that a government has lost the consent of the governed when it collapses due to a revolution. “Consent” is basically negative – it means a willingness to accept the existing government.
Is China’s government illegitimate by Matt’s standards? If so, what consequences follow from that? If no consequences, what is the point of any of this?
July 6th, 2009 at 2:04 pm
Wanted to clarify – of course Locke prefers constitutional government to arbitrary government. It’s just that that’s not the focus of the “consent of the governed” idea.
July 6th, 2009 at 2:05 pm
If TNR allowed comments from the unwashed nonsubscribers, I would have pointed out at Chotiner’s post that the results are well within the margin of error for the crazification factor, which continues to be supported by empirical evidence.
July 6th, 2009 at 2:06 pm
How would you measure consent?
Gee, if only they were to introduce some sort of referendum on a candidates or parties actions where people could vote on their relative preferences.
Matt is just saying what every villager thinks: The will of the people doesn’t matter if it contradicts the will of the elite.
July 6th, 2009 at 2:07 pm
There is a picture of Jefferson at the top of this post. He wrote down pretty explicitly how he thought it had to work. Consent of the governed means majority rule. For that to be feasible an just (that is, not to degenerate into mob dictatorship of majority over the minority, or civil war), the voters must be educated in liberal and humane values. He also thought that they should have actual experience in governing local matters among their neighbors -which is where his idea of a ‘republic of wards’ came in. In his terminology ‘ward’ meant a local government that operated on what would maybe correspond to a census tract level today. Jefferson was a pretty thorough majoritarian for matters on the local and state level.
He also thought this system would drive out irrational, occult and crypto-authoritarian dogmas like Platonism and Trinitariansim. but that is getting into his cranky side.
July 6th, 2009 at 2:10 pm
The idea that authority only comes from the consent of the governed is the essence of social contract theory, which had a strong influence on the formation of the United States and which I consider the best philosophy for the purpose and organization of political bodies.
To wit:
“THE Sovereign, having no force other than the legislative power, acts only by means of the laws; and the laws being solely the authentic acts of the general will, the Sovereign cannot act save when the people is assembled.”
and
“The legislative power belongs to the people, and can belong to it alone”
Read your Rousseau, Matt.
July 6th, 2009 at 2:12 pm
I certainly find it alarming that you reject this bedrock tenant of human rights.
This is not to say that any authority consented to by a majority is licit– but a state fundamentally can not actually derive its right to govern from any divine mandate, historical imperative or sacred writ, even the precepts of enlightened liberalism.
July 6th, 2009 at 2:12 pm
Just wanted to say this looks like it could tie in nicely with a thread at Matt’s last post.
July 6th, 2009 at 2:13 pm
Per liberal (classical) political theory, the consent of the governed thing is not an ideal but a fact about the world, and the best governments are the ones that explicitly take this fact into account.
July 6th, 2009 at 2:13 pm
“The contrast to “consent of the governed” is the divine right of kings, or other similar justifications for authoritarian state power being imposed upon people.”
No, that’s the fake contrast which was imposed on the debate by John Locke. Locke wanted to (artificially) narrow the debate, and choose that idiot Filmer as his designated scapegoat.
There are all sorts of points to be made to challenge Locke, but one is that hundreds of republics existed prior to his time that did not require his theory of consent of the governed. Most of these republics explicitly did NOT accept “consent of the governed” – most actual republics identified themselves as brotherhoods (”we’re the people descended from [X]“) and were not simply as all residents of a certain place.
July 6th, 2009 at 2:14 pm
Gee, Matt posting on a topic he doesn’t understand. That’s never happened before.
July 6th, 2009 at 2:16 pm
Aren’t we really over complicating the meaning of the phrase? At DTM correctly notes, “consent of the govern” is simply intended to contrast to the “divine right of kings”. “Consent” is given and withdrawn through elections, as the Dems learned in 1994 and the Republicans more recently.
It’s really that simple folks.
July 6th, 2009 at 2:17 pm
How would you measure consent? Elections. Duh.
How much do you need? 50%+1 seems fair enough.
Now, I wonder how many people are willing to follow this premise to its logical conclusion: as long as certain groups are denied the right to vote (e.g. minors, and in many states felons), the government has no legitimate authority over them. Right?
July 6th, 2009 at 2:18 pm
To me Matt seems to be creating an us v. them arrangement. Us consent if them respect us. But us and them are “we.” Them is among us. Now BushCo seemed to think they were separate and apart and that our rules didn’t apply to them, but that is our fault for letting them get away with it. I really dislike the whole Republican line of the “government is the problem.” The government is us. They are part of the problem (most of the problem).
July 6th, 2009 at 2:25 pm
I agree with Matt here, but I would add that one shouldn’t be too concerned that 25% of the population disagrees. After all, according to a poll by the National Academy of Science, 20% of the population thinks the Sun goes around the Earth. And some of the ones who get the question right are probably guessing.
July 6th, 2009 at 2:33 pm
For people using Locke to criticize Matt, I suggest reading Hume’s takedown of Locke’s social contract theory. Good reading, and not too long.
http://www.constitution.org/dh/origcont.htm
July 6th, 2009 at 2:35 pm
Love the folks who know so little about political theory that they think Matt Y is obviously wrong. Consent theory still has a handful of loyal defenders, but even they would admit that most of the (initially) plausible versions of the view (e.g., “elections confer consent!”) have been soundly thrashed over and over again since Locke.
July 6th, 2009 at 2:35 pm
If one wants to derive legitimacy from substantive criteria, what is their source, why should that source be so empowered, why is the grounds for its choosing criteria acceptable and why should they be accepted irrespective of the common opinion of them. The criteria that Mister Yglesias proposed, if used as the grounds for a government, would prejudice it in favor of certain policies no matter what the electorate put into the government. The consent of the governed seems neutral with regards to the inputs of the people. I do not in fact like the idea of founding legitimacy upon the consent of the governed, but have never been wholly at ease with any alternative.
July 6th, 2009 at 2:37 pm
Shorter Yglesias – I’ve got nothing against tyrants. I just wish they weren’t so tyrannical.
MIke
July 6th, 2009 at 2:37 pm
How would you measure consent? And how much consent do you need? After all, there’s no set of rules for governing society that everyone is going to agree to.
For the Shia in Iraq, the majority in Sri Lanka, the Unionists in 1861, the Assembly vs the Vendee, the lack of consent of the governed was measured in bullets, bombs, and blood.
The 60%+ that govern don’t really need to give their consent, they are the governors. Th question is how many dicontents a modern technological democracy can ignore and still be able to function. I would put it at around 10-20% when you either make concessions to the minority to maintain peace or decide to eliminate them. But this is a prectical empirical question, not one of political theory or morality.
“Consent of the governed” is the essential fact of democracy. The only way the country survives is if Democrats accepted Bush as President, and Republicans accept Obama. It is not even really about legitimacy, it is about acquiescence. Matt is just being stupid if he doesn’t think this is important.
And this is why we have the Senate. Majority rule, at least at a level of 50-70%, means very little. A veto point at 40% feels about right to me.
July 6th, 2009 at 2:39 pm
burritoboy,
Please understand that I was just explaining what Jefferson et al meant by that phrase, not necessarily endorsing their political ideology in all its particulars.
That said, I’m not persuaded by your example of republican “brotherhoods”–it seems to me you are confusing the issue of what defines a nation with the issue of what legitimizes a particular government. So, it could well be that a self-governing nation defined in terms of “brotherhood” nonetheless implictly perceived its government to be legitimized through consent in the Lockeian sense. Of course to the extent membership in the nation is defined in non-territorial terms, that raises the possibility of resident aliens, but I don’t think that possibility alone negates the Lockeian view.
July 6th, 2009 at 2:39 pm
“Love the folks who know so little about political theory that they think Matt Y is obviously wrong.”
I think it’s not that Matt is obviously wrong, but that he obviously doesn’t know what he’s talking about.
Mike
July 6th, 2009 at 2:44 pm
And even at a lowlevel of say 10% that don’t consent, say Aryan nation survivalists or innercity gangbangers, it can be and should be very expensive to just ignore those who feel they have no stake in the system. I guess you might just kill them all, but that would send a very disturbing message to the many other minorities, ethnic or political. There will never really be legitimacy again.
The majority can take care of itself, and always does. Freedom and democracy is about the minorities.
July 6th, 2009 at 2:44 pm
I’d be interested to know how many of that 25% thinks that governments should derive their legitimacy from Jesus Christ.
July 6th, 2009 at 2:48 pm
Love the folks who know so little about political theory that they think Matt Y is obviously wrong. Consent theory still has a handful of loyal defenders, but even they would admit that most of the (initially) plausible versions of the view (e.g., “elections confer consent!”) have been soundly thrashed over and over again since Locke.
Love the dweebs who think they are smarter than everyone else.
Well we know when there isn’t consent, i.e. the rioting Uighurs in China or the Iranian protests of recent days.
Matt:
Legitimacy is better thought of as deriving from substantive criteria—legitimate regimes govern with a decent respect for human rights and political freedoms and afford people a reasonable chance to change policies from within the system
Wouldn’t that last point encompass free and fair elections?
July 6th, 2009 at 2:51 pm
The 1st, and especially 2nd amendments are among the concessions made to minorities in order for the majority to get their consent to be governed. Shia Iraq, or Christian America, can ban Judaism and try to enforce a fully Christian America, and probably actually achieve that goal, but it would be so expensive (in blood and treasure) that they should think it over before trying.
I find Matt’s maniacal majoritarianism to be despicable.
July 6th, 2009 at 2:52 pm
I don’t think you need anything more than protected, open, fair elections, and protected political free speech in a Constitution. The rest, you can vote about.
Regarding “tyranny of the majority”, can anyone show an example of a true tyranny of the majority – by democratic vote – where the minority were also allowed to vote?
By the way, Vladimir Putin, while President, would be a good example of “rule with the consent of the governed” without kosher elections. Both Putin and Medvedev are very popular in Russia, although the elections were so-so.
July 6th, 2009 at 2:55 pm
For people using Locke to criticize Matt, I suggest reading Hume’s takedown of Locke’s social contract theory.
Hume’s argument is actually quite nuanced. He agrees that consent of the people is “the best and most sacred” foundation for government, but argues that in most cases, people don’t see their allegiance to their government as requiring such a foundation, and that in practice most people really don’t have a choice about which government they must live under anyway. But, of course, that doesn’t negate the view that the state’s authority to use power ought to be derived from the consent of the governed.
July 6th, 2009 at 2:58 pm
So Lincoln was wrong in the Civil War when the Confederate states withdrew their consent?
July 6th, 2009 at 2:58 pm
Maybe 25% of people simply don’t understand the question. The word “just” is key. Virtually every government holds on to power by military force or the threat of it–just look at the US Civil War if you don’t believe me. The question is aiming to be about what makes such force just or legitimate, but it may be being misinterpreted by some respondants.
Oh, I don’t know, perhaps by a vote? Or if you don’t trust the voting system, look out the window and see how many people are protesting in the streets. Or if you suspect widespread intimidation of dissent, find out how many of your close friends have doubts about the system but are unwilling to speak up about them.
But the population still has to consent to these rules. The Bill of Rights only holds any clout so long as the people are in support of it and therefore willing to enforce it. As you can see from the current gay marriage debate–not to mention the 1960s civil rights debate and the 1776-1860 slavery debate–personal rights and freedoms and such are only ever protected either by consent of the ruling majority or by force. Gay marriage is only currently recognized in states whose ruling majorities consent to recognize it.
July 6th, 2009 at 3:00 pm
Justice is in the eye of the beholder.
July 6th, 2009 at 3:02 pm
Regarding “tyranny of the majority”, can anyone show an example of a true tyranny of the majority – by democratic vote – where the minority were also allowed to vote?
French Revolution vs Vendee.
American Civil War and Reconstruction.
Hell, Vietnam and 2nd Iraq War.
I am not saying a tyranny of the majority is always a bad thing, just that it can and should be expensive.
Usually minorities can be bribed into consent, as was recently done in Western Iraq, or is currently being done for the opium growers in Afghanistan. FDR bribed the South in the thirties.
But thing is, Matt doesn’t even want to pay that kind of price. He wants to govern at 50-55$ without paying the price.
July 6th, 2009 at 3:02 pm
The 1st, and especially 2nd amendments are among the concessions made to minorities in order for the majority to get their consent to be governed. Shia Iraq, or Christian America, can ban Judaism and try to enforce a fully Christian America, and probably actually achieve that goal, but it would be so expensive (in blood and treasure) that they should think it over before trying.
I find Matt’s maniacal majoritarianism to be despicable.
Silly people believe that privately own guns is a check on tyrannical government. Them believing it doesn’t make it so. Iraq, under Saddam, was full of guns, and automatic guns at that.
A real tyranny rules by intimidating people, and threatening people’s family, much like how a Mafia boss rules. It doesn’t matter that you have gun then.
July 6th, 2009 at 3:07 pm
French Revolution vs Vendee.
I don’t know about that one. I’ll check it out.
American Civil War and Reconstruction.
Eh? There was a war.
Hell, Vietnam and 2nd Iraq War.
How so? Were the Iraqis allowed a vote on America’s decision?
July 6th, 2009 at 3:07 pm
36:Lincoln was obviously willing to pay a large price for reunion and reconciliation.
Ya know, part of the essential truth about “consent of the governed” is that process does not never create universal legitimacy. Sorry. This is a fact.
Enough. To be honest, I hope MY and his allies go all the way with their facile and shallow majoritarianism and alienate the crazed Right to violence. But I would like a civil war to end all civil wars.
July 6th, 2009 at 3:12 pm
Hume “took down” the literal interpretation of the Social Contract by pointing out that it is a convenient fiction and not a historical reality, since most governments have been installed by force and not agreement, but he ends his essay by affirming:
July 6th, 2009 at 3:14 pm
DTM:
Hume’s ultimate point is that our obligation to obey the gov’t is based on the social necessity of having one. It would be foolish to base the duty to obey on the duty to keep promises, as Locke does, since promise-keeping itself is based only the social necessity of people making promises.
Your “the best and most sacred” quote is nicely chosen. Perhaps he means that if people really did form a social contract (though nobody has in modern times), then that would be binding. But in a situation like that the contract would probably be redundant anyway, since the social necessity of obeying the gov’t would be sufficient by itself.
July 6th, 2009 at 3:18 pm
So Lincoln was wrong in the Civil War when the Confederate states withdrew their consent?
The principle that governments derive their just powers from the consent of the governed is not the same thing as the notion that the states within the United States are sovereign.
July 6th, 2009 at 3:19 pm
Enough. To be honest, I hope MY and his allies go all the way with their facile and shallow majoritarianism and alienate the crazed Right to violence. But I would like a civil war to end all civil wars.
Well I disagree very much with that. The notion that there are concepts you can’t vote about – where the majority can’t decide – creates a set of concepts that are very vague and amorphous, precisely the kind of thing that leads to violent conflict. You are better off with majoritarian rule.
July 6th, 2009 at 3:20 pm
Regarding “tyranny of the majority”, can anyone show an example of a true tyranny of the majority – by democratic vote – where the minority were also allowed to vote?
Anti-sodomy laws.
July 6th, 2009 at 3:21 pm
“That said, I’m not persuaded by your example of republican “brotherhoods”–it seems to me you are confusing the issue of what defines a nation with the issue of what legitimizes a particular government.”
We’re not arguing over a theory. There were hundreds (perhaps thousands) of republics before Locke’s birth. The question is how they claimed to be just regimes. Many of those republics explicitly rejected consent of the governed as creating a legitimate regime, and conversely, very few republics claimed that they were legitimate regimes solely because they had the consent of the governed.
Thus, a republic isn’t defined by consent of the governed precisely because there are hundreds of actual examples to the contrary. It’s fine if we want to agree with Locke and say that consent makes for better republics. But republics don’t necessarily need to be founded on the consent of the governed – otherwise, there would have been very few republics before very recently.
To the contrary, most republics before Locke agressively invaded and conquered other states and strongly refused to allow those they conquered any part in ruling anything. Most republics limited political participation to those whose families had been living in the republic for many generations (many had founding myths that the original inhabitants – from whom all current citizens descended – were brothers or relatives). When new republics came into being, they also choose to limit political participation to those resident in that city (most republics historically were city-states) for many generations, i.e. it wasn’t something only old republics did.
July 6th, 2009 at 3:25 pm
Harold:
I take my #44 to also work as a response to your #43, but of course you may disagree.
To clarify, Hume takes a social contract to be sufficient but not necessary for a gov’t to be legitimate. The poll asked whether:
Hume’s response would certainly be ‘no’. Social contracts are nice if you have one, but not the only source of just authority.
July 6th, 2009 at 3:30 pm
“Hume’s ultimate point is that our obligation to obey the gov’t is based on the social necessity of having one.”
Hume’s point here is ultimately comparatively trivial, however. The social necessity of having some, any government whatsoever doesn’t tell us anything about which government we should have. The negative tells us little about the positive.
Even worse for Hume’s picture is that, within his schema, as long as we can overthrow the current government and have some chance of a better one, we are not just free to do so, but we can be even actually obliged to do so. Hume is, in practical terms, weakening Hobbes and Locke’s strictures against civil war: Locke tells us we should avoid revolution because of our promises (contracts) and Hume argues against the validity of those promises (contracts).
July 6th, 2009 at 3:32 pm
Dan S.,
You are right that Hume argues that we have a general obligation to obey all “lawful” governments. Again, though, that isn’t the same thing as believing that all lawful governments have equally good justifications for their authority.
July 6th, 2009 at 3:38 pm
Anti-sodomy laws.
It’s an interesting point. Although regulating private sexual behavior is basically unenforceable. Also, the people who argue for anti-sodomy laws appeal to exactly the kind of non-majoritarian principles that were talked about. Non-majoritarian concepts for lawmaking – other than the right to vote and political free speech – should be discouraged.
By putting non-majoritarian concepts in the Constitution you only encourage them.
July 6th, 2009 at 3:42 pm
Many of those republics explicitly rejected consent of the governed as creating a legitimate regime
I think I need an example of what you have in mind here.
[M]ost republics before Locke agressively invaded and conquered other states and strongly refused to allow those they conquered any part in ruling anything. Most republics limited political participation to those whose families had been living in the republic for many generations . . . When new republics came into being, they also choose to limit political participation to those resident in that city .
Again, this is largely getting at a different issue, namely the definition of the relevant nations. To really get to our issue specifically, you’d have to ask why the citizens in these cases perceived their government as legitimate (assuming they did), and specifically whether the republican form of their government played any special role in their justifications for its legitimacy.
July 6th, 2009 at 4:04 pm
I agree with burritoboy and DTM that Hume doesn’t seem to have much of a positive theory. At least, not in what I’ve read.
I’m not sure where you got the “some chance” part. Instead, he might say that we can overthrow the government if the expected social benefits outweigh the expected social harms. In other words, very rarely.
I agree. Presumably he would measure the justification of a government’s authority by the social good it produces compared to the likely alternatives. If there were a social contract, then the people who had actually signed it would have an additional obligation to obey.
July 6th, 2009 at 4:16 pm
Paul told the early Christians that all governments derive their authority from God. I would guess that some significant fraction of the 25% based their answer on those passages, and the rest didn’t understand the question.
Based on Paul’s teaching, there was a long tradition of political quietism among many U.S. evangelical groups that was reversed by Jerry Falwell and Pat Robertson. Of course, there were important exceptions earlier.
July 6th, 2009 at 4:20 pm
Although regulating private sexual behavior is basically unenforceable.
Tell it to Oscar Wilde and Alan Turing.
I think you mean to say that it’s impossible to consistently or fairly enforce such laws. That’s true, but laws regulating private behaviour can certainly force a whole demographic group to live in the closet. Even if it’s unlikely that he’d ever be caught, a person on the wrong side of a law like that is left always wondering always wondering if the police might kick in the door someday.
July 6th, 2009 at 4:32 pm
By the way, Vladimir Putin, while President, would be a good example of “rule with the consent of the governed” without kosher elections. Both Putin and Medvedev are very popular in Russia, although the elections were so-so.
How do you know they’re popular? I’d say the Russian government is illegitimate. All sorts of undemocratic bs.
July 6th, 2009 at 4:56 pm
Didn’t Matt ever read John Locke, or, like, anything about the political ideology of the founders of the United States?
Locke was a bullshit artist, though. Less of a bullshitter than the defenders of arbitrary rule (hey, where’s Hector?) but he still extrapolated the basis of proto-Whig political power to an anti-Filmerian “state of nature” that he pulled out of his rear. (Hence Hume’s critique: it’s not so much an “affirmation” at the end as a quietly ironic reflection that the belief in active consent might be more significant than the reality of that consent. That “sacred” is loaded.)
Post-Locke, you do have a gradual refinement of the consent model towards what you’d now call social contract theory, but it’s fair to say that the basis for Jefferson, and later for the constitution, almost immediately showed its age in the context of the French Revolution and Godwin’s Political Justice.
July 6th, 2009 at 5:40 pm
How do you know they’re popular?
There are public opinion polls. I haven’t seen anyone question the legitimacy of the opinion poll results.
BTW, I’m not holding up Russia as a good form of government, but I think if you have an authoritarian government that it’s better when it is one popular with the people than otherwise.
July 6th, 2009 at 5:52 pm
Although, I personally am so far to the left that even the democrats appear to me to be “right-wing,” I consider myself to be a strict constitutionalist. It is my opinion that since its inception there has been an organized and systematic assault by the conservatives in the United States on the civil liberties written into the US Constitution. The “War on Drugs”; “War on Terror”; “War on Communism” and a host of other wars waged by the right wing are really nothing more than a War on People–an excuse to erode civil rights to the point of non-existence. I invite you to my website devoted to raising awareness on this puritan attack on freedom: http://pltcldscsn.blogspot.com/
July 6th, 2009 at 5:55 pm
Re: To the contrary, most republics before Locke agressively invaded and conquered other states and strongly refused to allow those they conquered any part in ruling anything.
I can think of some post-Locke Republics that indulged themselves that way too. I even live in one, if you consider the shameful history of the US and its conquests of the native peoples.
Re: the people who argue for anti-sodomy laws appeal to exactly the kind of non-majoritarian principles that were talked about.
Nowadays yes, because only a small minority of people support such laws. But when sodomy laws were first enacted large majorities supported them. Heck, even slavery was supported by a majority once upon a time. Which of course brings up the issue of the tyranny of past majorities and the extent to which the dead should be allowed to rule the living.
Re: Paul told the early Christians that all governments derive their authority from God.
This idea can be fitted into the consent of the majority theory if you take “government” to mean simply government in general (and I think the text justifies that interpretation), not any particular, individual government. I doubt even Paul of Tarsos thought that Nero was doing God’s work when the persecution started.
July 6th, 2009 at 6:23 pm
“Many of those republics explicitly rejected consent of the governed as creating a legitimate regime”
Take the best known republican city-state of Europe: Venice. Venice undertook a policy of conquest that lasted for more than 600 years. The populations and regions that Venice conquered were far larger than Venice’s own population. These populations were never admitted to the council of state. Further, the vast majority of the population of Venice had emigrated to the republic long after the citizenship rolls were closed. Yet the republic survived for centuries and was a reasonably successful state.
Obviously, the consent of the governed was not the basis of the Venetian state. Much of the Venetian republic’s territory was composed of other republics whom the Venetians had simply conquered and incorporated into their state explicitly against their consent (they already had their own republics, some of those republics being of great antiquity themselves).
July 6th, 2009 at 8:26 pm
“Regarding “tyranny of the majority”, can anyone show an example of a true tyranny of the majority – by democratic vote – where the minority were also allowed to vote?”
Your response to the example of anti-sodomy laws was essentially, “Oh, but that’s unenforceable.” So how about the ban on gay marriage, which has a 100% enforcement rate?
July 6th, 2009 at 8:38 pm
“Regarding “tyranny of the majority”, can anyone show an example of a true tyranny of the majority – by democratic vote – where the minority were also allowed to vote?”
I should think that the current Russian situation, where we had a popularly affirmed authoritarian government, should make for a very good example of the tyranny of the majority.
Vladimir Putin is genuinely popular; among the majority. And frankly, I am not sure the majority are concerned about his authoritarianism.
Quite another tyranny of the majority: Hugo Chavez, who is turning constitutional government into an anachronism. Or yet another: the former North Vietnam. Or yet another example: Uribe in Colombia, who has actually some of the highest popularity ratings anywhere in the world, but seems to have some authoritarian twitches (granted, his earlier authoritarianism was somewhat necessary to squash the FARC).
July 6th, 2009 at 9:16 pm
I have recently been reading about this topic and what I have found is that while it is true that St. Paul said one has to obey the reigning powers and Saint Augustine suggested that temporal government is a kind of punishment for man’s sinful nature, nevertheless, during the whole of the Middle Ages Roman legal tradition never followed St. Augustine but had continuity with the ancient world. Furthermore, in the early Middle Ages the idea that there was a social compact was said to have had a precedent in Biblical covenants, especially among the Germanic tribes (as later among Protestant sects, some of whom were called “covenanters”. In the Middle Ages many times Sovereigns were elected and parliamentary government (though not universal sufferage) was common.
Roman legal tradition always stressed that the King rules by consent of the people and that the purpose of government (as set forth by Cicero and Seneca) was to provide peace and justice for the citizenry. Even St. Thomas Aquinas did not demur. All agreed that the king was not above the law, though it was felt that it was for God to punish him. St. Thomas Aquinas went so far as to state that the people could remove an unjust monarch. The a investiture crisis was over who had the power to remove a bad ruler, the pope or the emperor.
The “divine right of kings” was a sixteenth or seventeenth century development (as was centralized monarchical rule).
July 6th, 2009 at 9:53 pm
I should add that people in the pre-modern sense referred to the peers of the realm, i.e., the nobles assembled. It did not refer to peasants or individual urban dwellers, who were not viewed as full stakeholders. The towns were viewed in each in corporation, alongside individual peers, and often subsidiary to peers.
In the case of Venice, citizenship wasn’t an universal quality; it was birthright, jus sanguinis.
Part of the difficulty of say, consent of the governed, is that Gulf governments, for example, often govern countries the majority of which are not citizens, and are not legally stakeholders. Yet they are legitimate governments, in the same sense the Venetian republic was a legitimate form of government.
July 6th, 2009 at 10:27 pm
“I should add that people in the pre-modern sense referred to the peers of the realm, i.e., the nobles assembled. It did not refer to peasants or individual urban dwellers, who were not viewed as full stakeholders. The towns were viewed in each in corporation, alongside individual peers, and often subsidiary to peers.”
It was a much more complex situation than that (I’m also not sure what you mean by pre-modern). It was not unusual for the upper tier of patrician burgher families to be eventually ennobled; the town council of Bremen was ennobled en masse by the Emperor in 1666, for example. While the patrician class of Frankfurt was not ennobled all at one time, by the 18th century most of them also held hereditary titles, and many simultaneously held a wide variety of positions at a large number of royal and aristocratic courts. It was not at all unusual for a highly-ranked urban patrician to have considerably more political power at a royal court than all but the very greatest members of the aristocracy (in fact, quite a few of the most renowned statesmen of the time were in fact from the urban patriciate and only gained noble titles very late in life).
It’s true that in an idealized Parlement as you’re outlining above, that the House of the Nobility would have that relationship with the House of the Commons. That’s not what ended up happening in most places. But, even in your idealized vision: only the very greatest peers of the realm would sit individually in the House of the Nobility, most aristocrats would of course not be able to do so – i.e., only a mere handful of people wouldn’t be represented in Parlement by one representative or another. Thus, the typical aristocrat wasn’t in a very different position from a typical burgher.
July 6th, 2009 at 11:20 pm
But, even in your idealized vision: only the very greatest peers of the realm would sit individually in the House of the Nobility, most aristocrats would of course not be able to do so – i.e., only a mere handful of people wouldn’t be represented in Parlement by one representative or another. Thus, the typical aristocrat wasn’t in a very different position from a typical burgher.
You are quite right, actually. There is quite a bit of ennobling going on with the upper urban classes in continental Europe, and most certainly minor nobility were not at all powerful (has something to do with the inheritance system in Frankish lands, e.g., agnatic equality).
But I think the main thing is that what we understand as consent wasn’t at all the same creature as what originally was the case in that era. When we think about consent, we are talking about the majority of people. We aren’t thinking about a tiny group of oligarchs who have the biggest stakes in the country. But that was what consent of the governed really referred to. Magna Carta was about constitutionalism, not democracy.
That’s why I used the Gulf sheikdoms as examples. The majority of the governed aren’t citizens and don’t have the attendant rights. Under the consent scheme, their opinions don’t count. It’s the minority, the Arabs native to that particular sheikdom, who we understand as holding the right on consent; rule by minority that is. Consent by the governed, then, is not the same thing, because if it was, then the Gulf governments would have been illegitimate.
July 6th, 2009 at 11:21 pm
By agnatic equality, I was referring to the inheritance of titles, not land, which was agnatic primogeniture.
July 6th, 2009 at 11:21 pm
I’m more concerned about the fact that “only just authority” didn’t cause more people to disagree. Everyone knows that “only” statements are almost always incorrect. Americans clearly haven’t spent enough time taking tests in school or they would have known this basic piece of testing knowledge. And had they simply gone “only implies false, so I disagree” they would have been correct.
July 6th, 2009 at 11:30 pm
It’s useful to observe that among the Franks, when they talked people and nation and laws so on, they are talking about exclusively the Frankish knights, not the people they ruled over. Frankish law applied to the (later noble) Frankish warriors, not the local population, who went by their own laws. That is the genesis of the system of European nobility. A useful comparison, perhaps, can be made with the modern Gulf sheikdoms. Consent of the governed, which was a very important thing for the barbarian tribes, referred to purely tribal members jus sanguinis, which doubled as the army, not other people.
July 6th, 2009 at 11:34 pm
Aside from the divine right of kings, there’s another corollary contrast to be drawn here: accident of force. A ruler used be conceived as a (dominant) force unto himself set in opposition to the people. The people would build up institutions to restrain the sovereign, who would (through grace) condescend to be obstructed by his subjects. Thus Mill, from whom Jefferson cribbed heavily:
It is that conception of government as in the public’s service that is at stake here. I’ve come to understand that Matt doesn’t think of government that way, so it’s not surprising he fails to grok the importance of the conceit.
July 7th, 2009 at 1:46 am
Hmm. I think Jefferson preceded Mill.
July 7th, 2009 at 6:48 am
I should think that the current Russian situation, where we had a popularly affirmed authoritarian government, should make for a very good example of the tyranny of the majority.
Not really, since the elections weren’t really democratic. I already mentioned that: “true tyranny of the majority – by democratic vote”
Quite another tyranny of the majority: Hugo Chavez, who is turning constitutional government into an anachronism.
Well, he has succeeded in getting the term limit repealed, but he did not succeed with the earlier referendum that would have given him also many extra emergency powers. Plus, he withstood a recall referendum. Seems an argument in my favor.
Or yet another: the former North Vietnam.
I don’t see what you’re getting at. North Vietnam was Communist, not democratic.
Or yet another example: Uribe in Colombia, who has actually some of the highest popularity ratings anywhere in the world, but seems to have some authoritarian twitches (granted, his earlier authoritarianism was somewhat necessary to squash the FARC).
Well, yes. Special circumstances.
July 7th, 2009 at 7:32 am
As for the question of legality of homosexuality, etc., I have to admit that threw me a bit. I hadn’t thought about that in the context of majority vote. But it seems to me, that where there is probably a more majoritarian way of looking at things, like Sweden or Germany, that gays are actually better treated than in the supposedly rights- and constitution-oriented US. And I think I know why:
The issue that has to be decided is “should it be legal?”. The issue is not “should it be considered a right?”. The issue is not “is it natural?”. The issue is definitely not “should it be considered approved by God?”.
You have to deal with making a decision on “should it be legal” eventually, and in what other way can you decide than in a majoritarian way? Enlightened ruler? Self-appointed judges? Fixed (unchangeable) Constitution?
Interestingly, decisions on the US Supreme Court are by majoritarian vote. It’s a kind of majoritarian backstop.
July 7th, 2009 at 9:07 am
I’d like to know more about what Matt means when he says: “But I don’t think people should embrace this consent of the governed notion, and my understanding is that most political theorists would reject it. How would you measure consent?”
Where did he hear that? And what does determine legitimacy in his view?
July 7th, 2009 at 12:30 pm
I wrote:
You have to deal with making a decision on “should it be legal” eventually, and in what other way can you decide than in a majoritarian way? Enlightened ruler? Self-appointed judges? Fixed (unchangeable) Constitution?
There is another way: to decide by force.
Also, discussing “rights” obscures things: get to the point: what should be legal.
July 7th, 2009 at 4:11 pm
@ Bengt Larsson
No. First, the reason that sweden and germany are more permissive of homosexuality is cultural and not governmental. Gay marraige is the current example but majority tyranny is well established. Additionally, the US supreme court is decided by a majority vote of 9 appointed justices (and is inherently not democratic on purpose). The federal courts were created as a backstop against majority tyranny (to strike down law that was popular but unjust or unconstitutional) because the elite, who were expected at the time of the constitutions writing to be educated and therefore highly knoledgable in ethics-something thats unfortunately not true any more, etc), were able to PICK the justices. The idea is that although occationally majorities may elect crazies into legislature or pres, they would only at best get a couple of justices in the courts during that time, so the founding principles could be upheld regardless.
Your arguement is rediculous, and majority rule has never been seen as a good system without checking it by some means or another (and usually several).
July 7th, 2009 at 5:42 pm
Hume argues against a strawman. Had Locke said that a government’s authority derives from the consent of the governed, Hume’s argument would be valid. Locke did not say that, but spoke of “just authority”.
Most governments throughout history exercised authority, but not just authority. Better-than-anarchy does not equate to justice.
July 7th, 2009 at 6:30 pm
Your arguement is rediculous, and majority rule has never been seen as a good system without checking it by some means or another (and usually several).
Who cares how it “has been seen”. It’s what works that matters. Of course you have to preserve political free speech and the right to vote, but I’m not at all afraid of referendums, otherwise, like those of Chavez. And if you can’t show it to have gone wrong under those conditions, what point do you have?
As for the other stuff in the US, federal judges and Justices are nominated by the President (elected, indirectly if you count the Electoral College) and confirmed by the Senate (now directly elected, formerly indirectly elected). It all boils down to how the people vote in the end.
The first sentence of the Swedish “form of government” is “All public power emanates from the people.” (”All offentlig makt utgår från folket.”). Making the dependence on the people’s will explicit.
In Switzerland they have had binding referendums on very important issues such as women’s right to vote, and what to do with immigrants.
There are of course also provisions for amendment of the US Constitution.
It’s all very nice to try to slow down change by indirection, but if the people don’t vote wisely over a longer period, they get what they want anyway. There is this myth in America that the Constitution upholds itself but it doesn’t. It has to upheld by the people. In votes. Unless you consider the violent option. But those who do consider the violent option seem to have a very restrictive idea of which people, for example, who have a right to vote. If you don’t accept the result of votes then you are kind of stuck, and you are then either a tyrant, or, if you accept a local vote, a secessionist.
July 7th, 2009 at 7:28 pm
“But it seems to me, that where there is probably a more majoritarian way of looking at things, like Sweden or Germany, that gays are actually better treated than in the supposedly rights- and constitution-oriented US. And I think I know why:”
Your argument is so post hoc ergo propter hoc that I’m kind of scandalized by it.
Germany treats their immigrant population as legal second-class citizens, by the way, something the US avoids through inalienable rights. I can’t speak to Sweden in that regard.
July 7th, 2009 at 10:00 pm
It appears Matthew Iglesias has been sadly imposed upon.
VOX POPULI VOX DEI
THE MULTITUDE IS WISER AND MORE CONSTANT THAN A PRINCE
July 7th, 2009 at 10:05 pm
First Matthew comes out against community gardens and now this, he be angling for a job at the Washington Post?
July 7th, 2009 at 10:06 pm
Or PRI or NPR?
July 8th, 2009 at 7:12 am
Germany treats their immigrant population as legal second-class citizens, by the way, something the US avoids through inalienable rights. I can’t speak to Sweden in that regard.
Talking is not doing.
America had slavery for longer than the British Empire. Most Western countries have more rights for homosexuals today than America.
As for more recently, the Bush administration violated rights to habeas corpus, right to a fair trial, right to not be tortured. There will apparently be no consequences for the deciders. Inalienable rights, you can’t live on them in theory.
July 8th, 2009 at 7:42 am
What is an “inalienable right”, tomemos? Teach me, teach me !
July 8th, 2009 at 9:35 am
There is no historical evidence that majority rule is a good idea. I think evidence (what has been seen) is a very important thing when talking about item of interest. The fact is that there are checks to majority rules in all current elected governements including elected representatives, independent judicial review, executive writ, interest groups (money), and historically a portion of govt that is hereditary. Even referendum, in every case I know of, can be overturned by some form or other (ie Supreme Court). That is not majority rule, it may be “consent of the people” however. It is not unreasonable to expect, for instance, that the upper classes would be more capable of governing given their ability to be educated on issues and spend most of their time becoming more so, but it is unreasonable to think they will not seek their own interest. That is where the tension is.
Many popular revolutions have led to very bad governments: Cuba, Iran, Russia, and Hitler.
I’m not sure we are disagreeing since you seem to think that the current systems are ok even with their many checks on majority power. I am not arguing against voting, but against majority rule. There is a huge difference! and making that arguement makes me neither a tyrant nor a secessionist. A majority of people from the US refute evolution for “intelligent design”. A referendum to teach evolution in school would result in its removal from curriculum. Good idea?
The judiciary is independent, and appointed with a specific job. Not only do the elected officials which appoint the judiciary not always know how they will vote (see Souter), but their stated job is to uphold the laws of the constitution and legislature (as long as the laws are constitutional or go with past rulings which all go back to the constitution). I suppose that if the federal judiciary were elected by vote, the supreme court and other federal judges would be quite different.
Peoples’ perspective from Europe seems quite different on much of this becuase diversity is less common there and many of the immigrants are not afforded the same position in society or govt. The US is unique in its constant fight to resolve the ethnic, racial, and cultural tensions caused by its great diversity. Additionally, a common heritage and culture in European countries allows much more consensous in the poeple, so a majority referendum is indeed likely to show a consensus of the people. Not so in America who is often times struggling to find its identity.
July 13th, 2009 at 9:38 am
Some more about majority
Mack is right in that I have nothing against a Constitution per se, just a certain interpretation of it.
You have to have laws to carry you from day to day – you can’t have a public vote on everything. Likewise you have to have a constitution to carry you from election to election: there has to be a system of government, a specified way to count the votes etc.
But over longer time periods – let’s say decades – the people really are in charge. This is so as long as you don’t have a fixed constitution – as long as it’s amendable – which is the case with the US Constitution. So long term, the US people are in charge, but they don’t seem to be aware of it.
It’s an important thing also, that a constitution needs to be enforced, otherwise it’s just a piece of paper, where the real government can be anything. Since everything goes back to the people over the longer term, it’s the people who are in charge of enforcement.
More on majority vote
With majority vote it’s important to remember that the people who vote are just that, people. In theory the 51% could vote to kill the 49%. In practice they don’t, because they are people.
It’s easy to get caught up in the mathemathics of the thing – but while the vote count is mathemathical, the people aren’t.
Ballot initiatives
In California they have ballot initiatives, that are not initiated through government. Instead, it takes a certain number of signatures to get on the ballot. The problem with that is that there are too many initiatives. When there are too many choices, you can’t make a rational choice, because you simply don’t have time for that. So ballot initiatives are a problem, for reasons of practicality.
I think you probably shouldn’t have an election more often than every two years, and no referendum more often than an election. There is such a thing as too many referendums. And I think a referendum should be initiated through the ordinary government.
Russia
Let’s classify governments from best to worse:
1. Full democracy
2. Autocratic rule that is popular with the people
3. Autocratic rule that is not popular with the people
4. Chaos and criminal gang rule
Under Yeltsin, there was actually a lot of chaos in Russia, lax law enforcement, lax tax collection, many pensions not paid out etc. There was surprisingly much rule-by-criminal-gang. It wasn’t mentioned much in Western media, but it was so. You can google it. Anyway, that meant that for many Russians Putin took Russia from 4) to 2). That is quite a big improvement. I suppose Communism would have been 3).
Referendums
There are essentially two kinds of referendums, advisory and binding. An advisory referendum is like a massive non-statistical poll. Ordinary polls only poll 1000-10000 people and give the result statistically. In an advisory referendum, you just count the votes. Of course an advisory referendum is not binding on the legislature; but because of its massive nature it tends to be quite persuasive.
A binding referendum is like a special-case election, on one topic. I think, BTW, that you should only ask one question in a referendum, so that people have time to think and can focus.
July 13th, 2009 at 4:27 pm
Responsibility, division, Switzerland
There may be an argument that people don’t, or won’t, vote responsibly, but I think one can argue that if people are given responsibility they will try to live up to it. One example of this, that exists in America, is jury trials. The whole point of a jury is that it’s plain ordinary people. Most jurors try to live up to the responsibility – and it is a great responsibility to determine if someone accused of a crime is guilty. This seems usually to work, at least for judgements of ordinary crimes, like theft and murder. It’s not at all a given that jury-trials would work, one could argue that juries should be made of experts, but it seems to work. One could argue the same for democracy and the occasional referendum, that people will try to live up to the responsiblity.
And in fact there is an example. Switzerland have many public referendums that are binding – leaving much more to direct referendum that most countries. Now one can of course argue that the Swiss are responsible – but they aren’t genetically so, they are just allowed to be. And Switzerland actually have big internal divisions. There are three major languages, German, French and Italian; the people who live close to Italy are essentially Italian, except they live in Switzerland. The same is for those parts that border France, and Germany and Austria. If you share a language with people across the border – let’s say in Germany, then you necessarily have lot of cultural contacts etc. And yet, this divided country seems to work. It’s often used as an example of democracy, working.