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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Comments:
Two things I mildly disagree with. I doubt that if the Stamp Act and other serious interferences with the colonies' commerce, and significant attacks on their pocketbook were affecting trivial amounts of the colonists' wealth, that they would have risen up in revolt. They used principled reasoning in the Declaration, but principles alone did not bring it about. It was that tax levels were onerous.
A second thing is the question of today's citizens' objections to laws which presumably are made with our consent through our representatives. Two exceptions--laws which are unjust because they affect our civil rights, such as the late HHS mandate, and laws permitting abortion. The latter are not only invalid due to their violation of Natural Law, but in the form of Roe v Wade, were not really promulgated through our consent but through usurpation of power by the Supreme Court.
There's that word again--usurpation. We may be nearer the need for another revolt than we knew.
It is also necessary for consent to be informed. Laws enacted on our behalf are passed without our "representatives' " meaningful debate or even reading them -- so in what way can a citizen be MORALLY bound by a "law" which his putative "representative" did not even read before voting approval?
Respect for law is receding like the ocean before a tsunami. The Republic is literally constituted by the Rule of Law, and it now stands upon the edge of a knife...
My wife, calm, meek in the biblical sense, and well-educated, attends mass more weekdays than not, and raised four relatively god-fearing children. She now looks at what our lords and masters call the "laws" and says she couldn't give a flying fig about obeying almost any of them that don't protect someone from imminent harm... She feels not even a residual moral obligation whatsoever to obey law that some functionary has simply declared to be "the law." Her moral advice on most of these diktats is: "Just don't get caught."
And I am a lawyer...
Given this, the deluge is coming and is very nearly here ... and I don't know what do anymore except have some semblance of a boat ready on the highest ground I can find.
The operative word there is "faction" and even though I am an attorney, have studied the law of the land, i have no clue what that word means in the context of this disquisition. I am guessing it obliquely refers to special interests. And, to be clear, the real special interest in this country has and has been the wealthy and corporate interests that really influence the direction of this country. Make no mistake, those interests were pretty much on Obama's side nearly four years ago and may in fact be now on the Republican side; not clear right now. But typically they get their way and that is the most important fact in politics in our time.
I might also note that the real debate in the public square is not remotely close to the notions set forth here. One can quote the Federalist, a fine academic source, but in the end the massive issues of technology, population, international influences and such render our world so far removed from the late eighteenth century that while the "originalist" concepts are to be adhered to, they don't entirely control wise decisions in this century.
You bring up good points.
Before we get caught up in the intricacies of the legislative process itself, we need to consider the notion of the "consent of the governed". It does, in my view, imply that an issue is known to us, the governed, and that it is being already discussed by us in the cultural sphere, before any legislative body presumes to take it up.
We, the people, have always been able to freely, without fear or hindrance, discuss and debate ideas we deem important to us. These discussions necessarily take place in the private and public squares, which can mean a dinner table, church, car, pub, party, classroom, neighbour on a plane, blog, lunch with co-workers, and may other places.
I firmly believe that when such prerequisite debates do take place, our ideas will likely converge into rough shapes of solutions, or at least well defined sets of problems, which can then be more formally expressed in the public media and re-debated by us as necessary. The legislative process may then refine these rough shapes into precise and clear laws.
However, if we neglect to discuss such issues among ourselves, or if much of the public media is corrupt, the legislative process won't have much to feed on, so to speak. It will then be vulnerable to well organized factions, with their ready made ideological "solutions" (which only further their agendas), just waiting for the opportune time to shove them thru.
Can it really be said that Obamacare is "taxation" with representation when the public was hoodwinked into believing that the mandate was not taxation until it occurred to Justice Roberts that he could get out of ruling it unconstitutional by the simple expedient of "coulda, shoulda, woulda"? As in "the Congress coulda passed it as taxation and that woulda been constitutional and if the people don't like it, they should knock all the people who voted for it out of office...." In other words, the Court doesn't worry about the people being deceived as part of the legislative process. Instead, the Court can play along with the deceptions by ignoring them and acting as though thelaw makers said the exact opposite of what they said to the US Public on the issue of the mandate as taxation. As in: "what the public didn't know, didn't hurt them or if it did, then it is up to the public to redress that harm because we are just going to ignore it."
Is the author referring to the Natural Law when he says
"policies prompted by faction that cannot belong to a proper set of policies consented to. "
The Natural Law underlies and surrounds the written Constitution
and I wonder the proper set of policies perhaps refers to the policies that may harmonize with the Natural Law.