Constitution Lectures 1: The Non-Consent of the Governed (HD version)

Uploaded by shanedk on 16.01.2010

So, I’ve noticed a problem in this country that’s only getting worse.
People just don’t understand the Constitution.
What’s worse, I’ve seen people and organizations trying to defend the Constitution,
and in some cases they end up taking unconstitutional positions
to fight the rare pieces of constitutional legislation that manage to come up.
This just can’t go on.
So I decided to make a series of lectures,
and I urge you to watch them all and disseminate them widely.
This first lecture I call the “Non-Consent of the Governed.”
This is for the people out there wondering,
“Why should I have to abide by the Constitution? I didn’t agree to it!”
The phrase derives from the Declaration of Independence
the founding document which is the basis for the Constitution.
In it, Jefferson says clearly that governments
derive their powers from the consent of the governed.
But did you consent to the Constitution?
Did you ever agree to it? Where is the consent?
This is what a lot of people are asking, and they’re hardly the first.
At least as far back as Lysander Spooner,
the argument against consent was made:
Should “consent of the governed” refer to active, unanimous consent
among every single person in the United States?
Obviously, that’s not gonna happen.
So others have come up with arguments for tacit consent.
One such argument might go like this:
“By remaining in the country, you agree to abide
by the Constitution and all laws passed by Congress.
Since you have the freedom to leave,
you have the freedom to opt-out,
and by not doing so you have consented to our present form of government.”
This is basically the “love it or leave it” mentality,
and there are a number of problems with it.
The first problem is simply that most Americans
have not made the decision to live here.
They’re born here, and their choice of where to live
is basically at the whim of their parents.
How can they be said to have consented to our government?
Of course, you could say that once they get old enough they could leave,
or they could run away, but that leads to a second problem.
It can be very expensive to leave the country,
not only in monetary terms, but in terms of time and effort.
It’s very difficult to uproot yourself from one place
and establish somewhere else.
And that’s assuming there was anywhere you go that was better.
But isn’t America the place where you’re supposed to go if you want to live free?
So, you can come here and live free,
but by living here you consent to have your liberty taken?
Another problem is that it requires giving up all ties
to family, friends, and everything else from your home.
That seems like a very high price to pay for freedom.
If you’re free, shouldn’t you be able to stay with your family
and friends, and the community you’re a part of?
And finally, you could apply this argument to any government, even a tyranny.
Should the Protestants have had to leave Britain
during the time Thomas More was Lord Chancellor?
By not leaving, did they consent to be arrested, tortured, and even killed?
There is absolutely nothing about the Tacit Consent argument
that stands up to any rational scrutiny.
Another argument, which is more limited,
says that one consents to government by voting.
It’s like a game: you agree to the rules
and the outcome even if you’re losing.
The most obvious problem is that even people who don’t vote
are subject to the law and the government.
The argument is that they have the option of voting, so it still counts.
But not everyone has the option of voting, such as people under 18.
However, let’s take a look at the case of those who do vote.
Have they consented to the government?
Even if they’re on the losing side, they should consent,
because if they were on the winning side they would
expect those who lost to consent as well, wouldn’t they?
The biggest problem here is that consent must be voluntary.
That means there must, at the very least, be a way of expressing non-consent,
an unwillingness to go along with it.
But if you consent by voting for the winning side,
and you consent by voting for the losing side,
and you consent by not voting at all,
how is there any way you don’t consent?
So, heads, you consent, tails, you consent,
if the coin lands on its edge, you consent,
and if you don’t flip the coin at all, you still consent.
It has also been said that we consent to the government,
because our founders consented for us long ago.
Since the system itself existed before we were born,
the system must be the default,
and we consent to the system by not changing it.
There is a certain logic to this one.
Our founders certainly expressed their non-consent
with the British government, overthrowing it
in favor of a new one. But there’s a big problem.
Duress is not consent. If someone robs you at gunpoint,
and you hand over your wallet,
have you consented to have your wallet taken?
Is it now a gift, and not theft? No.
Just because you chose not to resist the burglar
doesn’t mean you consent to his actions.
You can still call the police and demand his arrest.
The thief is not at all justified by your consent,
since it was under duress, under threat of force.
All government operates under threat of force.
If you pay your taxes because you are afraid of going to jail,
have you consented to paying the taxes?
Like the burglar example, this isn’t consent
because it’s done under threat of force.
Still another argument is that we owe our consent, because we receive benefits.
For example, everyone benefits through our national security,
since that makes us all safe from invaders.
Since we all gain that benefit, the consent is the price we pay for it.
But again, the problem here is that there’s no way to refuse.
If I take a good that I have produced, and force it on you,
are you obligated to pay me money for the good?
You must at the very least be able to refuse acceptance of the good
in order for me to say you owe me money for it.
Otherwise, gangsters would be justified in taking protection money.
Also, there is the problem of abuse.
Does consent to be protected by our military from invaders justify actions abroad?
Particularly actions many people have spoken out against,
such as the abuses of prisoners at Abu Grahib and Guantanamo Bay?
Not only that, but there may be disagreement about what benefits there should be.
If some people in a town think there should be a park,
and others think there shouldn’t, then is the park a valid benefit or not?
If the people who want the park win, how have the others consented
to have their tax money spent on such a service?
So, how does one consent to the Constitution?
How do you consent to a system of government operating
under the rules and restrictions imposed by the Constitution?
You don’t.
And you don’t have to.
Why? Because as surprising as it may sound,
the Constitution has nothing to do with you.
It does not apply to you in any way, shape, or form.
You might be horrified by that thought, but once you hear me explain,
I think you’ll see the elegant truth in this,
the entire idea behind how the Constitution is supposed to work to begin with.
As James Madison said,
“In all cases where a majority are united by a common interest or passion,
“the rights of the minority are in danger.”
Consent cannot be made by the majority
or by any of the other arguments we’ve discussed.
The consent of a thousand cannot abridge the rights of the one.
And this is precisely how the Constitution
can have legitimacy without unanimous consent:
it is not there to restrict the people or affect them in any way;
it is there to restrict the government and preserve the liberty of the people.
So the Constitution is not there to restrict the people.
You don’t have to worry about anything in the Constitution or the Bill of Rights.
If someone bursts into your home and starts preaching,
you get to throw him out, and you do not run afoul of the First Amendment
on either freedom of speech or freedom of religion.
This does not apply to you, only the government.
The government is restricted by the Constitution,
for the purpose of preserving the rights of the people.
The government cannot abuse habeas corpus,
inhibit freedom of speech or the press,
invade your home without a warrant, and so forth.
None of these things require your consent;
they are legitimate because they protect your rights
from abuse by the government.
The obvious corollary to this is,
any part of the Constitution that restricts the people,
or inhibits their rights, is illegitimate.
If you doubt that, then ask yourself this question:
Was slavery legitimate for over 170 years
when it was authorized by the Constitution?
Did it only suddenly become illegitimate
with the passage of the Thirteenth Amendment?
I think we all agree—I hope we all agree—that slavery was always illegitimate,
even as the Constitution permitted it.
This part of the Constitution always was illegitimate
since it inhibited the rights of the people instead of preserving them.
So where does the consent come in?
It comes in whenever someone is elected, or appointed,
or in any manner becomes a member of the governing bodies of people,
be it Federal, state, or local.
This is easily seen in the oath required
by all members of the government by Article VI.
They all consent, directly by taking this oath, to support the Constitution.
The President is specifically bound by an oath given in Article III.
Everyone—every member of Congress, every governor and legislator,
every judge and DA, every soldier and officer in the military,
every cop on the street, swears an oath to the Constitution.
When the President violates habeas corpus,
when legislators and governors make laws against the Constitution,
when the cop forces you to consent to a search without a warrant,
they are violating this oath, and it is an illegitimate act
precisely because this consent is violated.
This is the very basis of the Constitution:
The Constitution does not grant us rights.
We have the rights already.
The Constitution is there to preserve them
and keep the government of the people from abridging them.
So it’s not the fact of being in the Constitution that makes something legitimate.
The Constitution cannot bestow that status on anything.
Rather, it is things which are legitimate that are made part of the Constitution.
When it isn't, that part of the Constitution is illegitimate,
and needs to be dealt with, the way the illegitimate institution of slavery
was eliminated by the 13th Amendment.
So, by now you should have a good idea
of what the Constitution is and where it gets its legitimacy from.
Keep this in mind not only in future lectures,
but in every political issue, every political speech,
every word you hear out of every politician’s mouth.
And when you’re evaluating any law or action of government,
the first question that must always be asked is, “Is it Constitutional?”
And if it is, there’s still one more question to be asked:
“Is it legitimate?”
Until next time, stay strong and be free.