Lessons from a Lemonade Stand

by Connor Boyack

  These defenders of the newly formed government rightly argued that the proposed federal government was a creation of the states. The states, each one a sovereign nation, had been freed from British rule. Each was named and recognized individually in the peace treaty that followed the war. And these states, or nation states, sent delegates to create a new compact—a new government that would remedy the perceived problems under the Articles of Confederation that had been in operation for a few years. The federal government did not create the states; it was they that first existed, and then they got together to organize and empower this new federal government. It was intended to be a creature of the states, and they were its creators.

  But what are the states themselves? Many consider them “sovereign,” but what then of you and me? Are we not sovereign? Are we in charge of ourselves—free and independent people? Or are we creatures of the state, subject to whatever the state decides?

  Let’s ask this a different way. If the federal government is a creature of the states, then who created the states? Recall our island example and the organization of a new government. That government—a “state,” if you wish to call it that—can only have the powers that the islanders already have themselves and then choose to delegate to it. They create the government. They are the creators; it is the creature.

  But our island example doesn’t exemplify today’s political climate. States have been around longer than you or me. Most states were basically created by the federal government after purchasing or seizing land from other people. Even the early states, originating as colonies, often began as royal charters—government with permission of the king. So the theory breaks down in modern reality, where the state is basically its own entity, separate and apart from the people it rules. It may feel nice to say that it should only have the powers that we have and delegate to it, but centuries of court cases and legal practice are at odds with this theory. They are sovereign. They are both creator and creature, in a way. Confusing, right?

  The takeaway here is that government tends to treat its citizens as peasants, and it perceives itself as did King Arthur: entitled to authority, derived from some unseen, mystical source, never questioning the right to rule and to wield power. It’s good to be king, especially when everybody believes you “can do no wrong.”

  SOCIETY AND THE STATE

  Ever heard of Alexis de Tocqueville? He was a French political scientist who visited America in 1831 on an official mission to examine prisons and learn about incarceration reforms. But he had a sneaky reason for requesting this opportunity to visit the New World.

  Tocqueville wasn’t nearly as interested in prisons as he was in American society itself. He wanted to study the religious, political, and economic character of the new nation. His results were later published in Democracy in America, a two-volume set of books cataloging his many observations.

  Keep in mind where Tocqueville came from. Europe was a product of centuries of conflict, conquest, and corruption. Monarchies were everywhere, and individuals were treated as subjects, not as free people. Freedom was granted by government, not inherent or pre-existing. And whenever a problem arose, the citizenry looked to the government for a solution. “Wherever at the head of some new undertaking you see the government in France, or a man of rank in England,” Tocqueville wrote, “in the United States you will be sure to find an association”—a voluntary group of people. He continued:

  Americans of all ages, all conditions, and all dispositions constantly form associations. They have not only commercial and manufacturing companies, in which all take part, but associations of a thousand other kinds, religious, moral, serious, futile, general or restricted, enormous or diminutive. The Americans make associations to give entertainments, to found seminaries, to build inns, to construct churches, to diffuse books, to send missionaries to the antipodes; in this manner they found hospitals, prisons, and schools. If it is proposed to inculcate some truth or to foster some feeling by the encouragement of a great example, they form a society.12

  The Frenchman was intrigued by these spontaneous organizations designed to solve problems. “I have often admired,” he added, “the extreme skill with which the inhabitants of the United States succeed in proposing a common object for the exertions of a great many men and in inducing them voluntarily to pursue it.”13 Government didn’t need to tax people and pay others to do large projects. Early Americans were voluntarily doing similar things themselves.

  While the America Tocqueville described has largely faded into history, his writings raise an important distinction we should consider as we explore the idea of governmental authority. Too often, people confuse society and the state, leading to the elimination of the role society can—and should—play in providing for the needs of individuals.

  What is society? The word comes from the Latin societas, meaning a fellowship, association, alliance, or community. When you go to a grocery store, amusement park, church, or community theater, you see society—groups of people going about their business, often in a shared experience. Other voluntary associations might be formed to clean up the neighborhood, help save whales, share best practices in an industry, publish inspirational stories, or help parents connect with one another. As Tocqueville observed, the sky’s the limit; any problem in need of a solution could be helped through a group of people organizing together to take it on.

  Society requires voluntary association; to force someone to join an association is to enslave a person. If my elderly neighbor is unable to mow her lawn, some friends and I might associate together to take turns weekly to get the job done. But if the city council compels us to mow her lawn under threat of fines or jail time, then our effort is no longer an association—ours is not a “fellowship” or “alliance.” Consenting to join an association requires us to agree, so society is really just a mental concept—a decision by individuals to share something in common together. This means that society can only really exist if individuals freely choose to act with one another.

  You may wonder, then, whether the state qualifies as an association. Here we’re not talking about American “states” like Georgia or Nevada, but a general term often used by some to describe the government, though they aren’t truly synonymous. Your city is “the state,” as is Canada, the Democratic People’s Republic of Korea, and Funkley, Minnesota (population: five). The state is a political organization that has two unique characteristics: it uses coercion and violence, and it claims jurisdiction (authority) over a specific, defined territory. Murray Rothbard, a prolific economist and historian, explains this concept further:

  While other individuals or institutions obtain their income by production of goods and services and by the peaceful and voluntary sale of these goods and services to others, the state obtains its revenue by the use of compulsion; that is, by the use and the threat of the jailhouse and the bayonet. Having used force and violence to obtain its revenue, the state generally goes on to regulate and dictate the other actions of its individual subjects.14

  These subjects are anyone who happens to live in a geographical boundary over which the state claims authority, be it a city, a “state,” or a country. If you don’t do what the state’s officials say while living within their territory, you will be punished. They might start lightly—a fine, community service, etc.—but if you defy their authority and refuse to submit, the consequences will escalate, leading potentially to your imprisonment or even death.

  This sounds like a gang, doesn’t it? You’re minding your own business when suddenly a group with guns comes up to you and demands some of your money, which they say will be used to help protect you. “I don’t need your protection,” you might reply. “Too bad,” the gang would say. “This is our neighborhood now.” And, like the state, you would likely submit to the gang, calculating that it’s in your best interest to just do what they say and hope they leave you alone as much as possible.

  Rothbard also re
ferred to the state as “the systematization of the predatory process over a given territory.”15 Here, predatory means attacking or stealing from others, like a predator does to its prey. But the state wouldn’t exist for very long if its subjects perceive it as a gang or a predator. What inevitably happens, then, is that the state becomes a participatory process, where the subjects have a say in choosing who their rulers (or predators) will be. The state is a creation of their own making—or at least citizens feel that way when they cast their vote.

  So where does the confusion come from—why do people not distinguish more clearly between society and the state? One is voluntary, the other is not. One uses persuasion, the other coercion. Pretty simple, right?

  The problem arises when people want something to be done in society but prefer not to help bring it about themselves. “There ought to be a law,” some will say. “Poor people need help.” Vague statements such as these lead people to support policies that bring about a desired result—shelter for the homeless, food for the needy, health care for the unemployed, etc. But such policies require compulsion; rather than forming an association to deal with the problem, these individuals turn to the state.

  This is socialism—basically, a mixing of society and the state. In other words, the state is used to bring about social (or society-wide) objectives. More trees should be planted? Sure, the government can take care of that. People want a park? Okay, the government will step in and provide. In these cases, the costs of each government program or expense are socialized—they are spread out across everybody in society. What happens, then, is that the cost becomes so small for each person that they feel the program is “worth it.” Funding public schools, building a new road, constructing a new police station, putting on a parade—these and a host of other activities are state programs, but the costs are dispersed over many people. Each expense is so minimal that it doesn’t feel very burdensome on its own—until you look at your total tax burden, perhaps.

  Bastiat had something to say about this. He pointed out, as mentioned above, that socialism “confuses the distinction between [the state] and society.” Because of this, “every time we object to a thing being done by [the state], the socialists conclude that we object to its being done at all.”16 In other words, if you were to oppose using taxes to fund schools, socialists would say that you must not want children to be educated at all. Bastiat destroyed that argument:

  We disapprove of state education. Then the socialists say that we are opposed to any education. We object to a state religion. Then the socialists say that we want no religion at all. We object to a state-enforced equality. Then they say that we are against equality. And so on, and so on. It is as if the socialists were to accuse us of not wanting persons to eat because we do not want the state to raise grain.17

  The danger with using the state to serve society’s needs, rather than voluntary associations, is that if people stop working together, and instead turn to a third party (the state), we weaken the bonds that tie us together. Society is undermined and ultimately destroyed.

  In summarizing his observations, Tocqueville wrote:

  Among the laws that rule human societies there is one which seems to be more precise and clear than all others. If men are to remain civilized or to become so, the art of associating together must grow and improve in the same ratio in which the equality of conditions is increased.18

  Ask yourself, now that you’ve read his description of early America: in our day, has this art of associating improved? Are we better at voluntarily working together to achieve important societal goals? If not, then what is happening to our society, and how do we push back against the growth of the state?

  CONSENT OF THE GOVERNED

  The Declaration of Independence contains an important phrase many people overlook: “governments… deriv[e] their just powers from the consent of the governed.” Consent is the crucial foundation of any legitimate government. To have and use “just (or legitimate) powers,” a government must have consent. What does this word mean?

  While the definition of consent hasn’t changed since the Declaration was written, I find it’s helpful to use a dictionary that reflects the understanding of words when they were written. For that we turn to Noah Webster, a man who learned 26 languages to help him compile a dictionary to standardize American English over the course of two decades. Here’s how he defined consent in 1828:

  1. Agreement of the mind to what is proposed or stated by another; accord; hence, a yielding of the mind or will to that which is proposed.

  2. Accord of minds; agreement; unity of opinion.19

  Makes sense, right? This is what we think of when we think of consent. So taking it back to the Declaration, we might instead say that governments derive their just powers from the agreement of the governed—a yielding of their mind or will to what the government proposes.

  Does that sound like real life to you? Do you agree with whatever the government makes you do? Have you yielded your mind to paying as much taxes as you’re required to, for example?

  Obviously, every person disagrees with at least one thing the state does, right? To address this disagreement, advocates of the state have conjured up all sorts of arguments in an attempt to circumvent the clear language of the Declaration. First, they argue against explicit consent—the idea that to agree to something, you actually have to personally agree. Explicit consent is when you yourself verbally say yes or sign a written contract. If you download software and accept the terms and conditions, you explicitly consented. If you sign an employment contract, you gave explicit consent to do what your employer is requiring of you. When you buy lemonade from a child working at a roadside stand, you explicitly consent to pay the stated amount in exchange for the drink.

  Good luck getting 100% of the state’s subjects to agree to its every action. Because this is impossible, advocates then argue that explicit consent is not required. Implied consent, they say, is sufficient. This is the idea that you don’t actually have to personally agree in order to… agree. This is an assumption of permission based on a person’s behavior. A typical example of implied consent is finding an unconscious person who needs CPR performed. That person has not given you permission to place your mouth on theirs or perform chest compressions, but you assume that if they were able to verbally agree, they would, so you proceed with that implied consent.

  But what about conscious people who don’t consent—those of us who are able to agree verbally or in writing, but do not? This is where things start to break down. Based on a person’s behavior, advocates of the state find creative ways to argue that he has given the government implied consent to do whatever it does. Let’s explore a few of these arguments and demonstrate why they do not constitute consent.

  “If you don’t like it, leave!”

  Perhaps the most commonly used assertion is that residency constitutes implied consent for the state. This argument says that if you choose to live or remain in a certain location, you are agreeing to be subject to the various forms of government that claim jurisdiction over that area. Sounds like the gang territory example, right?

  The key problem with this argument is it assumes that the authority is legitimate—that the state has the right to do what it wants within the territory over which it claims power. Telling somebody “if you don’t like it, leave” completely sidesteps a discussion about whether the state’s mandates are legitimate at all.

  It’s also unreasonable to suggest that a person has to relocate in order to refuse consent. Not everybody can move, of course. Elderly folks may become less mobile over time. Sick people need their medical team. Some homeowners can’t find a buyer for their house. Others might want to leave, but simply have nowhere else to go. Do these people—none of whom are able to leave—consent to be ruled as the state wishes? Remember Webster’s definition, and the question becomes clearer: have these individuals yielded their mind in agreement?
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  Let’s imagine a liberal Democrat—we’ll call him Joe—who lives in one of the most conservative areas of the country in order to take care of his sister who suffers from a rare disease and cannot function without another person’s support. Will Joe agree with what the government in his neck of the woods is doing? Probably not. Has he yielded his mind? Not likely. And yet, because he lives in that territory, he is subject to the state. And based on where he finds it necessary to live, many would argue that he has given implied consent to the conservative-dominated government.

  Let’s consider another scenario. Imagine a single mother who, after having a hard time finding employment, finally lands a job so she can provide for her children. At this job, her boss begins to make unwanted advances toward her. The woman, now a victim, finds it necessary to continue working with him so she can feed her children, worried what will happen if she reports him, and that if she were to quit, she wouldn’t find another job.

  Has she consented to these unwanted advances? Absolutely not. She has not agreed; she has not yielded her mind in unity with her boss. Her behavior—continuing to show up for work—cannot be taken as implied consent by the boss. Her choice to remain in his presence is a calculation she makes for other reasons, not because she wants her boss to continue his inappropriate actions.

  People choose to live where they do for many reasons. Perhaps the property has been in the family for generations, or a person has specialized in a specific set of tasks for which there are few employers, which reduces the options of where that person can live. Maybe there are medical reasons for someone to remain close to a certain hospital or a need to live near an ailing relative who requires care. These choices are independent of any consideration about the state itself; a person’s decision regarding where to live cannot be interpreted as consent.