The Importance of "Consent":

The Penn Symposium on Unemurated Rights

1. Randy Barnett on Theories of Legitimacy:

It was nice to see Randy Barnett invoke the Declaration of Independence in his presentation. The Declaration is important because it, as a Founding document, raises the two bookend theories of legitimacy in liberal democracy (which were a point of controversy at the symposium). The very term "liberal democracy" itself perfectly describes these bookends: "Democracy" simply means majority rule and voting or consent of a majority; the "liberal" qualifier means certain rights are antecedent to majority rule.

Barnett's argument is that government legitimacy in what it does (the substantive rules it enacts) derives more so from securing rights of individuals than simply "consent" in the form of either majority vote of those living today, or the consent of the long dead voting populace who ratified the constitutional system under which we live.

This approach sharply contrasts with the "democratic theory" approach of someone like Justice Scalia who argues that majority vote is what by in large confers legitimacy, and even when minorities possess rights that majorities cannot abridge, it is only because some democratic majority, in its benevolence, decided to grant such minority rights.

Barnett would argue that a majority vote to do anything -- criminalize sodomy or voluntary drug use, enact a program redistributing wealth from A to B, or any of the thousands of things that legislatures vote into law -- simply doesn't confer legitimacy. What confers legitimacy is when government secures rights. Barnett is right. To use some reductio ad absurdums, some of the most illiberal rules and regimes can be and have been vetted by majority rule. The holocaust received majority support, as did many illiberal revolutions, like in Iran. Slavery certainly was supported by democratic majorities.

In his book, Barnett goes into far more detail than I will get into here demolishing such theories of consent and majority vote confers legitimacy.

Barnett's approach, I would argue, is more consistent with the Declaration of Independence (which should be a lens through which the Constitution is interpreted), than the "democratic theory" form of originalism, which views consent of majorities as the ultimate conferrer of legitimacy.

I also want to focus on the question, "well then, how exactly is consent important, especially if consent of the governed is invoked in the Declaration?"

The Declaration of Independence, in the following very short phrase, invokes both the "consent" and "individual rights" theories of legitimacy: "[T]o secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed;..." Now, here we see the Declaration clearly states that the "ends" or "legitimate powers" of government is not simply to do the bidding of the majority but rather to secure various unalienable rights, of which liberty, in its broad and general sense, is one.

"Consent" Legitimates Government as an Institution:

It's the government institution itself that derive legitimacy from the consent of the governed. That is, the constitutional system under which we live, and those in charge with administering it must be vetted by majority rule. In order to create a constitutional system, a majority did indeed have to establish it. It would not have been legitimate if, for instance, a cohort during revolutionary times seized power and unilaterally imposed without consent, a natural rights libertarian utopia. Similarly, all states had to voluntarily join the union. If, for example, we demanded that slavery be abolished as a prerequisite for joining the union, then there would have been no union. That we allowed slave states to join the union did indeed create a "Crisis of the House Divided" because slavery was quintessential in the way it violated the unalienable rights for which governments are instituted among men. But we still needed the consent of the slave states, and the people therein, in order to have them be legitimately part of the union.

Similarly today, those in power are legitimately there because of the consent of the governed. If I were king of the universe, I might unilaterally appoint Randy Barnett President of the United States (get that veto pen ready!), but that would not be legitimate in a liberal democracy. It would be more legitimate rather, to have Clinton or Bush as Presidents, but also have them constrained as to what they may legitimately do. Similarly, we need legislators to pass necessary and proper laws which fall within the purview of legitimate government powers. If the President or the King just unilaterally appointed his buddies as legislators for life, that would not be legitimate. If we are dissatisfied with the way our legislators are behaving, we can vote them out. But it does not necessarily follow that they can or should therefore do what the majority of folks who voted them in wants them to do. Were that the case, 51% of the poorer end of the bell curve in the population could vote in legislatures and demand that they seize all of the wealth of the richer 49% and redistribute it. But they can't because property is an unalienable individual right.

Get it?