Why real-world governments don’t have the consent of the governed

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/01/27/why-real-world-governments-dont-have-the-consent-of-the-governed-and-why-it-matters/

by akbarnama • 10 years ago

45 82 10 years ago

washingtonpost.com

Synaesthesia7• 10 years ago

This is why direct democracy would be a better model of government than representative democracy. However it's a threat to the existing power structure so don't expect to see it soon. We have the technology in place to effect large scale democracy, say having referendums electronically via a smartphone app.

paulsutter2• 10 years ago

Consider Switzerland:

From https://en.wikipedia.org/wiki/Direct_democracy :

"Switzerland is a rare example of a country with instruments of direct democracy (at the levels of the municipalities, cantons, and federal state). Citizens have more power than in a representative democracy. At the federal level, citizens can propose changes to the constitution (federal popular initiative) or ask for a referendum to be held on any law voted by the parliament.[16] Swiss citizens vote regularly on any kind of issue on every political level, such as financial approvals of a school house or the building of a new street, or the change of the policy regarding sexual work, or on constitutional changes, or on the foreign policy of Switzerland, four times a year"

aidos• 10 years ago

How does the education of policy function in practice?

I ask because in the UK we're planning a referendum on exiting the EU (or not). On most political issues I'd consider myself more well read than a great percentage of the population, but I don't feel in any way qualified to argue one way or another on this (I have a guy feeling, and I know which way I would probably vote, but really - that's not the right way to do things). I know that it will end up being driven by biased forces for political gain, like every other election / referendum held in the UK.

How does Switzerland devolve information to the public so they can make a genuine informed decision?

nailer2• 10 years ago

The author still wouldn't approve of direct democracy either: they think all democracy is non-consent, and do not recognise societal majority as a form of consent. The author is arguing for anarchism, which generally doesn't scale beyond one person. As soon as you have multiple people and they disagree, you need some mechanism to fix the tie. This is obvious to most adult humans, which is why I'm surprised the article made it to WP.

As the other poster notes with the example of Switzerland, the solution to governments straying too far from the will of the people is more democracy, rathe than abandoning the will of the people.

Synaesthesia7• 10 years ago

Anarchism can work at a larger scale, look at the success of revolutionary Spain. Anarchism can take many forms, the people can decide how they want their government to look. Anarchism merely rejects any form of authoritarianism.

Well I don't agree with the author because he appears to be a right-wing, or American libertarian, who overlook the inherent authoritarianism and tyranny of corporations.

kijin• 10 years ago

The author seems to be a libertarian, not an anarchist. If he has any sympathy for anarchism, it seems to be for the philosophical kind [1] rather than the practical kind that you say is impossible.

Or perhaps his position might be closest to the "natural duty" argument for political obligation [2], which isn't all that far off from philosophical anarchism anyway.

The central premise of both philosophical anarchism and the natural duty argument is that governments have no legitimacy whatsoever by default, and only gain legitimacy to the extent that they help bring about beneficial consequences. The two theories differ in block size. Philosophical anarchism only acknowledges the value of individual pieces of law (if at all) that they think are beneficial, whereas the natural duty folks are more willing to give their blessing to entire systems of government in a broad brush.

[1] https://en.wikipedia.org/wiki/Philosophical_anarchism

[2] http://plato.stanford.edu/entries/political-obligation/#NatD...

circlefavshape• 10 years ago

The author is arguing for anarchism, which generally doesn't scale beyond one person

Anarchism has been the default way of running the show for most of our species's existence. Civilization is only 10 thousand years old. Seems to me like it's population density rather than numbers that anarchism has trouble with

mhaymo• 10 years ago

You are clearly misrepresenting the author. The second part of the article starts with a concession that democracy is beneficial despite the lack of consent. He is arguing that the non-consensual nature of government suggests limited local government is preferable to needlessly invasive global government. Here's a relevant snippet:

Nonconsensual government must be subject to a substantial burden of proof when it exercises coercive authority, and it may often fail to meet it. The nonconsensual nature of most government policies also strengthens the case for devolving power to regional and local authorities in order to increase the number of issues on which citizens can “vote with their feet” and thereby exercise at least some degree of meaningful consent.

calibraxis• 10 years ago

There's a place in the world which has it. Rojava, US ally and the world's most effective ground force against ISIS: http://www.slate.com/blogs/xx_factor/2015/11/25/rojava_is_a_...

There's lots of literature on their bottom-up democratic model, with self-governing communities that come together and hopefully will dissolve the bureaucratic nation-state. (For example, as NYT points out, all their 6,000 police are elected, a women-only force deals with sexual assault, and all recruits receive weapons only after two weeks feminist instruction. This is incredible anywhere in the world, not to mention in Syria under attack from ISIS and Turkey.)

onion2k• 10 years ago

We have the technology in place to effect large scale democracy, say having referendums electronically via a smartphone app.

Using a smartphone app would mean people who are too poor to afford a smartphone, or physically unable use a smartphone, or who believe a smartphone is too great an invasion of their privacy, etc would be disenfranchised from the democratic process. That means it wouldn't really be democratic.

Pretty much every single solution to direct democracy will leave someone out, so you need several ways to gather people's votes, and then it ends up being incredibly difficult to manage and expensive to run. Maybe in 30 years time when smartphones are truly ubiquitous, old people have grown up with them, they're genuinely secure and respectful of an individual's privacy an app will be a good idea. Until then, it's not going to work.

guard-of-terra3• 10 years ago

I don't see how it would be that difficult to manage and run. Smartphones + kiosks + teaching social services workers to help the disabled equals much better participation that with current systems.

hk__22• 10 years ago

I don’t think direct democracy is a good system, but perhaps that’s an issue with democracy as a whole. Decisions based on the majority’s choice are not always the best and you can easily end up in a situation where propositions are made based on popularity instead of effectiveness. Propose to remove all taxes or give $1m to every citizen and you’ll probably get a significant share of the population with you even if it’s absurd. The problem is uninformed vote: people who’re not informed/serious enough to make a wise decision. You have to either educate people (but in that case, who does that? How do we ensure they’re not biased?) or prevent them from making decisions (but that’s dictatorship: how do you ensure the dictator(s) stay wise and benevolent?).

mike_hearn5• 10 years ago

Decisions based on the minorities choice are not always the best either.

Unfortunately, the sentiment you're expressing here is increasingly common, especially in America. Pew Research have been doing surveys since the 1960's that show that the percentage of people who agree that they have "a good deal of confidence in the wisdom of the American people" has been in steep decline for decades, and people who agree are now in the minority:

http://www.pewresearch.org/daily-number/declining-confidence...

This is IMO leading directly to the popularity of guys like Trump, whose brand of politics is based almost entirely on "don't trust democracy, trust me".

Unfortunately, it's easy to take for granted the stability that democracy brings. Yes, sometimes, bad decisions are made ... or we look back on earlier times and judge their decisions as bad in retrospect (although at the time, lots of people thought it was good, e.g. slavery, oppression of gays etc). But history has shown us what happens when you choose the alternative of decision making by small minorities of self-proclaimed "elites". You get communism and much worse decision making.

By the way, your lack of faith in people is either misplaced, or a purely local phenomenon. For instance in Switzerland there are 16 referendums per year, and people do in fact vote against things that would be trivially good for them in the short term but possibly worse in the long term, like longer holidays.

Switzerland is in fact an excellent example of how the world's most democratic country is also one of its most stable and prosperous.

bsbechtel3• 10 years ago

The best model of direct democracy is where you vote every day for the goods and services you want in your life with your dollars.

fyolnish• 10 years ago

Everyone would have to have the same number of dollars

hyperdunc• 10 years ago

Direct democracy is susceptible to mob rule, but we could certainly try it in some form on a small scale in order to learn more about it's strengths and weaknesses.

datenwolf4• 10 years ago

say having referendums electronically via a smartphone app.

That creates the problem of implementing a truly democratic voting system. You have to ensure that:

- voting is secret (i.e. you can't map votes to individuals using just the information available to the public or the vote management)

- voting is free (i.e. you can not influence the votes of individuals by coercion, which is easiest implemented by ensuring that voting is secret)

- voting is equal, i.e. every voter has the same number of votes and votes can be entered only for entitled voters and each voter gets to vote only once per election

- every voter can assert that his/her votes are actually counted in the way they were made

- the counting process is open and accessible to everyone and does not require any a-priori knowledge about the finer details of the voting process in place

Now try to implement THAT electronicsally. Even if the solve the first 4 clauses using the right kind of electronics and/or cryptography, the 5th clause is what puts the nail in the coffin for any electronic or computerized voting system: It excludes everybody from participating in the whole process of the election, who lacks deep knowledge about secure electronics design, cryptography and the implemented voting protocoll.

In short, your idea of a "smartphone voting app" is stillborn, if you aim for a truly democratic election system.

ajuc3• 10 years ago

every voter can assert that his/her votes are actually counted in the way they were made

This isn't currently implemented in paper voting systems, why should it count against electronic voting systems?

Also 5 isn't implemented too well at the moment either.

I think if you got printout with your vote identifier after voting, and then printouts with all the votes (secret identifier->vote) were available - peple could check if their vote was counted. In which way paper voting is more open or more secret than that?

andy_ppp3• 10 years ago

I think all of the things you said I can disagree with on some level:

- voting is secret - I think everyone's voting record should be made public! How would this be a bad thing?

- voting is free - the media spend a lot of money cajoling voters down certain paths. Voting isn't free - I mean look at all those poor republicans voting against their own self interest.

- voting is equal - your vote should count as the inverse percentage of your age. Young people will be here longer and should have their votes be worth more, old people who only have a few years left disproportionately affect policy.

- voters can't currently tell if their vote was counted and in a lot of cases (i.e. Electoral college, jerry mandering) votes are worthless even without direct cheating.

- the counting process is open and accessible - this is making the software open and the votes tied to real people. That would completely solve this, especially if it was on some kind of public ledger.

Synaesthesia7• 10 years ago

It's really not outside the realm of possibility. We manage to have free and fair elections, with a voters roll. We manage to have pretty well-run surveys of public opinion, which are quite reliable.

Every citizen could have a unique code or login which allows them to vote. Security would be important and require some of some 3rd party who designed the system. That will take trust. However we trust our government to make all the decisions for us daily, and we trust 3rd parties to our security and privacy all the time.

Look at the blockchain as an example of an open, secure, trustless, permanent ledger. It or a similar technology could be utilized if no 3rd party is desired. What's lacking is the will to implement such a system, not the technical feasibility.

carsongross• 10 years ago

Direct democracy, while certainly better than todays kakistocracy, is not a solution to the problem of governmental legitimacy based on something other than violence. Consider direct democracy involving the citizens of China and the US. Is there any way that such a system could avoid a tyrannical outcome? The only way to have meaningful consent amongst the governed is for the political unit to be significantly homogenized, and for voting to not really matter all that much.

This is why secessionism and the devolution of sovereignty to smaller political units is a moral imperative. Voting should be used to ratify already existing consensus.

This is also why multiculturalism is so deeply wounding to political legitimacy, and requires increasingly totalitarian measures to maintain.

paulsutter2• 10 years ago

You have no reasonable way of opting out of government rule. Governments control all the habitable land, and most of us don’t have the resources or even the legal permission to move elsewhere.

The quickest way to change the law is to board a plane. Yes it's difficult to create a whole new country, but there are 200 readymade countries to choose from.

(I'm surprised this is so controversial. I'm just saying individuals do have some direct control over the laws that they are subject to).

deciplex• 10 years ago

Most of them are terrible in one way (at least) or another, though.

lordfoom• 10 years ago

By doing that you're not opting out of government rule, you're just changing governments.

parenthephobia• 10 years ago

That isn't "opting-out of government rule", and it isn't so trivial to move to another country to live there as you imply.

XorNot• 10 years ago

Yes it's almost like sharing the planet peacefully is hard and requires compromise.

jfoutz• 10 years ago

isn't so trivial to move to another country to live there as you imply

It's not that hard. In comparison to "opting-out of government rule" it's trivial.

toucan56• 10 years ago

I doubt you've been through any immigration process if you think it's that easy.

lumberjack• 10 years ago

Libertarians to everyone else: "I will use my power and leverage to influence you at will, but don't you dare use your power and leverage to influence me. I don't consent to it."

UK-AL4• 10 years ago

What the hell are you on about? Libertarians definition freedom stops at the point you start infringing on the freedom of others. It's a core concept. You would not find a single libertarian who agrees with your statement.

They would probably stick to that concept more than any other ideology would.

edent4• 10 years ago

"I am scared to leave my house because you might shoot me."

Can a person controlling others with their intimidating behaviour? If so, what's the Libertarian response to that?

Libertarianism is the rule of the power of individuals. Which is great if you're strong, skilled, healthy, respected, and/or have access to equipment. For the rest of us, it's a dystopia.

notahacker2• 10 years ago

Libertarians definition freedom stops at the point you start infringing on the freedom of others.

Virtually all people identifying as libertarians believe in property rights, which by definition are restrictions on the freedom of others to make use of certain things.

oldmanjay2• 10 years ago

Do you frequently dictate the stances of those you oppose?

edent4• 10 years ago

they chose him as the lesser of the evils put forward by a political system that they have little if any leverage over.

Bilge! You only need to look at the successes of fringe religious candidates in parts of the USA to see that small groups can wield enormous leverage if exercised correctly.

In most parts of the world, it's trivial to join a party / trade union / action group / stand for election. If you cannot convince a few hundred people to vote for you - perhaps it's you who are wrong, not society.

blfr• 10 years ago

Religious politicians in the US are not successful in promoting religious groups' goals. This may provide nice careers for politicians of repeating appropriate slogans but: gay marriage has been legalized, small business owners are even forced to cater to the ceremonies, new companies have to pay for contraception, etc, etc.

edent4• 10 years ago

On the other hand, [creationism is taught in (some) schools](http://www.patheos.com/blogs/progressivesecularhumanist/2016...) and there are vast parts of the country with [little or no access to reproductive health clinics](https://www.facebook.com/nationalabortionfederation/posts/12...).

chipsy• 10 years ago

This is the old "freedom/security" debate in the guise of interpersonal consent. Governance has always involved coercion at the individual level, because governments rule with force, and a certain amount of force is necessary for order and security; without making that move to unify under some law, a population gets mired in low-level disorders and disagreements. It can be a really shitty Hammurabi-style eye-for-an-eye law, legitimize slavery, rape, etc., but if it protects the interests of the ruling class and is not an immediate threat for most of everyone else, it sticks. Thus, for thousands of years, most people lived as peasants, and enjoyed equality and fraternity with their immediate peers, but few freedoms around property, invention, travel, or other such actions that might threaten harmony in society.

But the consent of the people does exist, as a mass body. It takes quite a lot for a critical mass of them to decide that the government is no longer legitimate and disorder would be preferable, but if they do, the government is pushed into crisis. And when governments make breakthroughs, it's in the moment of crisis where leadership is forced to either make a big concession or be pulled down by the mob. In between crises, the status quo sticks and politicians jockey for position within it instead.

What that never translates to is the individual who sticks out of the crowd, arguing for change, getting special treatment. At all times, even in the era of post-Enlightenment reason, they are viewed suspiciously, because good enough is good enough, and they might just be another "bad guy" (criminal/barbarian/spy/rebel/etc.) trying to pull a fast one. They get no credit; as with business and innovators vs. fast followers, it's the people who come afterwards, using more polished rhetoric and building existing small movements into large ones, who tend to turn those ideas into reality.

Booktrope• 10 years ago

Consent of the governed does not mean, agreement of the governed to specific measures. No does it mean majority rule, which can easily be tyranny of the majority (possibly, the worst kind of tyranny, because it's possibly the strongest kind). One can easily consent to something without actively participating. The author of this oversimplified piece doesn't seem to even acknowledge a category of decisions that people might consent to, even if they disagree with them. It's obviously foolish to say that government is acting without consent, if it makes decisions that you do not agree with, although you are willing (and may even actively choose) to live under the system for making decisions. Nor, of course, does consent always mean actively choosing; it can mean accepting things. The concept of consent of the governed was articulated most effectively by Locke, whose philosophy was a key inspiration for the American revolution. To Locke, consent of the governed had nothing to do with whether or not people agreed with specific laws. Rather, consent of the governed was the foundation of civil society -- that is a society governed by rules and laws. Locke identified the alternative as a state of war -- government by bare force, unconstrained by the rules of civil society. When the consent of the governed is lost, it means that the people no longer accept the legitimacy of the government (sometimes stated as: government has lost the mandate of heaven, or some other revolutionary slogan). It means, change of the form of government, not just the laws and not just the holders of power. It usually doesn't come out well. But (rarely) it creates something new, and better.

millstone• 10 years ago

To be sure, when Abraham Lincoln said "no man is good enough to govern another man, without that other's consent," he was referring to owning slaves. The men governed without consent were literal slaves; the governers were not governments, but private citizens.

This is a really strange article. Look at its claim that "the exercise of coercive power without consent is a bad thing." First of all, coercion means without consent by definition; you can't have consent and coercion. Second, most laws are about actions which affect other people. What does consent look like there? You can't unilaterally refuse to consent to speed limits, because that affects me by putting me at greater risk. You need my consent too. And if we disagree?

It also refers to "nonconsensual government," implying there's such a thing as "consensual government, and later references "a government that genuinely derives its just powers from the consent of the governed." But it doesn't explain what that would look like.

scotty79• 10 years ago

States governments are just most recent and best invention in the field of predictably and least harmfully exploiting people by people with physical power. Earlier invention in the same field were warlords and mafia. If you look at the World Wars you might be wondering if it's actually a progress but in times of peace they are way more efficient and how else could they learn that war between states is a bad thing until they tried few times.

https://en.wikipedia.org/wiki/Monopoly_on_violence

hwstar2• 10 years ago

We should keep the system in place that we have at the US federal level, but add initiative, referendum, and recall. This allows the citizens to "correct" the legislators, and allows more controversial laws to be passed which legislatures typically avoid.

The only problem I see with this is keeping the moneyed special interests at bay.

Why real-world governments don’t have the consent of the governed

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