Modern Americans read the Declaration of Independence too individualistically. We think of it as a revolt against high taxes and big government. While the Declaration does object to violations of “individual rights,” its understanding of how individuals exercise these rights is broader than modern Americans generally conceive of them.
Take the Declaration’s best-known complaint against the King, “for imposing taxes on us without our consent.” This is not about high taxes. Any tax, no matter how mild, that is imposed without a people’s “consent” would violate this principle. On the other hand, a very high tax, imposed with the consent of the people, would be unobjectionable.
As much as they objected to violations of individual liberty, the colonists objected to the King’s preventing them from exercising a collective liberty–to be governed by laws established by their own consent through their representatives. This aspect of the Declaration’s argument has been largely lost in the emphasis we place on individual rights.
Consider the very first indictment against the King in the Declaration, that “He has refused his assent to laws, the most wholesome and necessary for the public good.”
This was not a complaint about the King’s violating individual rights as modern Americans think of them. Rather, the leading indictment against the King is that he did not allow the colonists to be regulated by all of the laws they thought necessary for their own good. I only half joke with my students that the colonists complained in the Declaration that the King of England was giving them less government than they wanted.
Or consider the next indictment listed by the Declaration against the King, that “He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended, he has utterly neglected to attend to them.” Again, a complaint that the King delayed the passing of needed laws in the colonies.
The third indictment gives us a more complete hint of the specific right contested for in the Declaration: “He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.”
While the Declaration later complains that the King trenched on what we today would recognize as individual rights and liberties, I think that most Americans today think of legislatures more as threats to our liberty than as venues through which we exercise our liberty. However much this may be warranted, it is nonetheless a dramatic shift from the argument articulated in the Declaration.
Early Americans equated individual consent with consent through elected representatives. There is no injustice, say, if a person freely consents to onerous work in a contractual agreement. The rewards, presumably, would be commensurate to the legally binding obligation freely entered into. Similarly, laws and taxes enacted by legislatures could be onerous, but there would be no injustice in this theory as long as the people consented to these laws, either personally or through their representatives.
According to British law, taxes were understood to be voluntary gifts from the people to the crown. “Consent” by your representative was your consent. Recall, for example, the resolution of the colonial “Stamp Act Congress,” “That all supplies to the crown, being free gifts of the people, it is unreasonable, and inconsistent with the principles and spirit of the British Constitution, for the people of Great Britain to grant to his Majesty the property of the colonies.”
So, too, in one of the most widely read tracts of the era, John Dickinson, drawing on British legal precedent, argued that “gifts and grants of their own property . . . made by the people [to the king]” go under several names, as taxes and subsidies. “But whatever the name was, they were always considered as gifts of the people to the crown, to be employed for public uses.”
In the Declaration’s theory of liberty, people provided consent to laws and taxes not only individually, but also collectively through representative institutions. The “consent” provided to laws through representatives was taken to be just as real and consensual as consent provided individually. Indeed, a major focus of the Declaration’s argument was to vindicate the right of collective self-government through representative institutions against British usurpation.
It is unclear whether many Americans today believe that they “consent” to the laws enacted by their legislatures, particularly if their representative is a member of the legislative minority or if they are a member of an electoral minority. To be sure, Americans are a remarkably compliant people, submitting to the overwhelming number of laws that they may not agree with. Nonetheless, the rhetoric of dissent these days seems largely to eschew the notion that we have “consented” to laws with which we disagree even if a majority of elected representatives enacted those laws.
The loss of this more collective dimension of the Declaration’s theory could be a logical consequence of the increasing individualism in American culture. But the seeds of this attitude bore fruit as early as the decade following the Declaration. Based on the tumultuous experience in state legislatures between the adoption of the Declaration and the ratification of the U.S. Constitution, attention necessarily shifted from a focus on the consent of the governed and onto pathologies of majoritarian governance.
James Madison’s famous consideration of “faction” in Federalists 10 and 51 makes no appeal to the notion that the minority “consented” to legislative enactments, although republicanism is at the heart of the Constitution’s design.
In a real sense the continuing struggle of U.S. constitutionalism is a struggle to distinguish between policies properly “consented” to by the people through their representatives and policies prompted by faction that cannot belong to a proper set of policies consented to. But in the focus on that struggle I wonder if we’ve lost the Declaration’s notion that our liberties can be as much expressed through legislatures as they can be threatened by legislatures. I wonder whether modern Americans, left or right, still actually believe what the Declaration affirms and, if not, what next?
James R. Rogers is department head and associate professor of political science at Texas A&M University. He leads the “New Man” prison ministry at the Hamilton Unit in Bryan, Texas, and serves on the Board of Directors for the Texas District of the Lutheran Church-Missouri Synod.
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