Just as the single mother continued working for her boss despite his conduct, people choose to continue living in a certain location not because they consent to gangs or governments that claim the territory, but because—all things considered—that’s where they want or need to live. Residency does not constitute consent.
“You voted, now accept the outcome!”
Another common argument you’ll hear in support of implied consent is that voting creates consent. Participating in the state’s processes, many say, implies you agree with its operations; if you vote, then you must accept the outcome of that vote.
Imagine Candidate Moore is running for office, hoping to gain control of political power in the area where you live. You like this guy and would consent to have him in charge. Unfortunately, he was defeated by Candidate Rodriguez, who is now in a position to pass laws that control your life. You disagree with Rodriguez very strongly and do not consent to him having power over you. Does your agreement with Moore constitute agreement to be governed by whoever might beat him in an election?
Now let’s imagine that the candidate you liked actually won—Candidate Moore became Congressman Moore. But he lied through his teeth, saying things on the campaign trail that sounded good; now that he’s in power, he’s ruthless. He sponsors legislation that would negatively affect your family’s business, and you clearly disagree with what he’s doing. You may have consented to his efforts initially, but now you find yourself disagreeing substantially. You do not consent to be governed by Moore and the product of his legislative efforts—even though you voted for him!
The argument that voting establishes consent breaks down even more when you consider how elections actually work. Yes, sometimes people will strongly support the candidate or policy they are voting for. But quite often people are choosing a “lesser of two evils,” opting to pick the person they dislike least. This isn’t consent, just as it isn’t consent to prefer one gang’s occupation of your neighborhood compared to its rival.
Lysander Spooner put it this way:
In truth, in the case of individuals, their actual voting is not to be taken as proof of consent, even for the time being. On the contrary, it is to be considered that, without his consent having even been asked a man finds himself environed by a government that he cannot resist; a government that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments. He sees, too, that other men practice this tyranny over him by the use of the ballot. He sees further, that, if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own.20
What he’s saying here is that many people treat voting as a calculated effort by which they can try to reduce the negative impact of the state. Trying to minimize bad things in government by voting for the preferable option does not imply that the individual agrees with anything—he merely wants to shield himself.
Spooner continues, observing that “if he uses the ballot, he may become a master; if he does not use it, he must become a slave.” A person is compelled either to vote to control others (in an effort, ideally, to get them to respect his natural rights), or be controlled. “He has no other alternative than these two,” Spooner argues, noting that a person’s decision to vote effectively becomes “self-defense.” He continues:
His case is analogous to that of a man who has been forced into battle, where he must either kill others, or be killed himself. Because, to save his own life in battle, a man takes the lives of his opponents, it is not to be inferred that the battle is one of his own choosing. Neither in contests with the ballot—which is a mere substitute for a bullet—because, as his only chance of self-preservation, a man uses a ballot, is it to be inferred that the contest is one into which he voluntarily entered; that he voluntarily set up all his own natural rights, as a stake against those of others, to be lost or won by the mere power of numbers.21
As you recall, consent is a yielding of the mind—an agreement. Does the liberal Democrat in a conservative area yield their mind by showing up each year to vote for the minority candidate who clearly won’t win, but with whom they agree? Does a man yield his mind to an oppressive government that is ruining his family’s business merely because, in vain, he helps campaign for a losing cause that a majority of people will not support?
As Spooner argued, the behavior of casting a vote does not convey enough information to know if a person is actually yielding their mind. For all we know, they imagine themselves in a political battlefield and are merely trying to preserve their life, liberty, and property, hoping to dodge the political bullets being fired at them through the ballot box. For these reasons, voting does not constitute consent.
“Speak now or forever hold your peace!”
In previous arguments we have discussed certain behaviors that some believe create implied consent for the state. In this argument, it’s not an action that is interpreted as consent, but the lack thereof—specifically, remaining silent.
“Silence is consent” has permeated our culture as a saying people will sometimes use. For example, a business executive on a conference call might propose an action plan to which nobody responds—perhaps the proposal is stunning in its awfulness, or perhaps the executive is an intimidating figure nobody dares to challenge. “Silence is consent,” he might say in reply, reaffirming that if nobody speaks up, he’s going to move forward with the plan. But did these individuals yield their mind?
Imagine that one of your neighbors painted their garage door bright pink. Everybody in the area might hate it and worry that it will negatively affect the property value of their own homes. But nobody says anything, for fear of causing conflict. That neighbor, receiving no negative input on his choice of color, then interprets that silence as suggesting that everybody in the neighborhood must be okay with it. But they’re not—they just haven’t spoken up to directly indicate their disagreement. It’s no surprise that they haven’t yielded their minds because inside their minds they’re thinking, “That guy is crazy!”
There are numerous reasons why a person might choose silence over speaking out in cases where they disagree—especially since the government has guns and is willing to use them. Throughout world history, people have lived under despotic regimes but chosen to remain passive and compliant—not because they like what’s happening, but because they are terrified by the consequences of actively objecting.
And let’s be clear on one thing: the state wants to punish dissent so others are not encouraged to act likewise. This creates even more of a disincentive for those who dissent to speak out—they don’t want to be made “an example” by attracting retaliation.
Consider the case of Irwin Schiff, a longtime tax protester who believed that the U.S. income tax was invalid and did not apply to him as the Internal Revenue Service claimed. On many occasions he refused to pay the tax, resulting in years of unsuccessful court battles. Sentenced to nearly 13 years in prison at age 78 for his malum prohibitum crime, Schiff—who had become legally blind and was dying of cancer—died at age 87, shackled to a hospital bed in a guarded room.22
Imagine what would happen if the government validated the claims of a tax protester? Millions would immediately pursue the same course of action. The government opted to act decisively, and the warning to others was clear: if you don’t like paying taxes, don’t speak out about it and attract attention that might bring you the same fate.
This argument of silence creating consent really breaks down when you think of those, like Schiff, who do speak out. If a person explicitly manifests their dissent, are they exempt from the state’s authority? If silence does create consent, then surely those who are not silent can free themselves from this power by speaking out, right? Of course not. Silence does not constitute consent.
“But you’re doing what they tell you!”
The fi
nal argument we’ll address is the one that is used the least—and it’s basically another version of the silence argument we just discussed. Some suggest that obedience to the state’s mandates is a form of implied consent, in that there is behavior to indicate that a person is agreeing to do what they are told—else why would they do it?
Since we just refuted the “silence is consent” argument, you can probably dispense with this one fairly easily as well. The same response applies: going through the motions does not mean that a person has yielded their mind. We do all sorts of things for fear of the consequences of not doing them—observing the speed limit, paying taxes, or even securing a permit to operate a lemonade stand.
Viktor Frankl was an Austrian psychiatrist born to a Jewish family—a circumstance that led to his imprisonment in the Auschwitz concentration camp in 1944. As you might imagine, this environment was oppressive and dehumanizing. Forced labor, poor (if any) food, and state-sponsored murder were part of the awful routine. Prisoners like Frankl—as would be expected in such a scenario—did what they were told; the prisoners obeyed. But these outward acts did not reflect their inner beliefs and desires, as he explained:
Every day, every hour, offered the opportunity to make a decision, a decision which determined whether you would or would not submit to those powers which threatened to rob you of your very self, your inner freedom; which determined whether or not you would become the plaything of circumstance, renouncing freedom and dignity to become molded into the form of the typical inmate.23
As a psychiatrist, Frankl focused on preserving, and even increasing, his inner self and spirituality—even in circumstances in which it seemed few options existed to do so. Even while obeying, Frankl and his fellow prisoners were maintaining their views and, of course, not yielding their minds. They did not agree; they did not consent.
Randy Barnett, a constitutional professor and author, points out the key problem with this argument:
Does one really manifest a consent to obey the commands of someone much more powerful simply because one does not physically resist the threat of violence for noncompliance?24
Just as failing to speak out does not create consent, deciding not to actively resist and fight back does not mean that a person has yielded their mind in agreement. Obedience does not constitute consent.
Consent matters—in our businesses, intimate relationships, and our voluntary associations. We expect explicit consent to be the standard; we do not work for an employer who hasn’t agreed to hire us, or initiate intimacy with a person who has not agreed, or force people to associate with us if they don’t want to. This is common practice and widely understood.
Why, then, do we expect a lower standard from the state, especially since its activities involve applying unnatural consequences—fining, imprisoning, and even killing people? If explicit consent is the standard for society, then why are we letting the state off the hook?
In our voluntary relationships, consent has meaning because people are free to dissent if they so choose. You cannot yield your mind in agreement if there is not a meaningful opportunity to disagree. You can refuse to work for a boss you don’t like; you can get out of an intimate relationship that becomes toxic; you can leave the local park cleanup club if you prefer to spend your time elsewhere. These voluntary relationships matter because those involved voluntarily signal their desire to remain together by not dissenting. This is how and why their consent has meaning.
But the state does not tolerate dissent. You are governed whether you like it or not. And so, while the Declaration of Independence says the state derives its “just powers” from the consent of the governed, we respond that no such consent exists in our day. Neither residency, nor voting, nor silence, nor our obedience constitutes consent—not even implied consent, let alone explicit consent.
If the state does not—indeed, cannot—have the consent of those it governs, then how can any government legitimately exist?
AWAY WITH THE STATE
Barnett explains, “Consent must be real, not fictional—unanimous not majoritarian. Anything less than unanimous consent simply cannot bind non-consenting persons.”25 Most people immediately respond: is there any government that has unanimous consent? That idea sounds absurd! It’ll never happen!
Well, it does happen in a variety of governments. This is where it becomes important to refer to our earlier distinction between government and the state. We defined the “state” as a type of political organization that uses coercion and claims authority over a specific territory. When most people say “government,” they are actually referring to the state. But there are governments that have unanimous consent. They just aren’t “states” because they don’t match the two criteria.
Your family has a government. So does your church. Businesses have them, too. Even the local PTA and Boy Scout chapters have governments. And all those associations Tocqueville saw? Each of them had their own government as well. Governance becomes necessary when large groups of people interact, in order to establish rules by which the organization will operate. Everybody agrees to the terms, and those who disagree can disassociate themselves if they wish.
The state forces those within its jurisdiction to associate with it. The community choir, on the other hand, does not compel you to join; you are not subject to its government unless you want to be. The state is tied to a geography, whereas voluntary government knows no bounds unless those involved want it to be tied to a geography—for example, a sports team. The state does not allow people to opt out, whereas in other governments people may leave if they wish. The state binds everybody, including future generations as people are born within its territory. But if you agree to work for a company, that company is not entitled to the labor of your children as well—your consent is yours alone.
Most importantly, as Barnett indicated was necessary, these voluntary associations actually have the consent of those who participate. There are no mind games being played to conjure up implied consent; if you suddenly grow to hate chess, your former chess mates will not tie you to a chair and force you to continue playing with them.
How could a political government ever function like voluntary associations do? Think of your neighbors; while you may get along with one another nicely, it’s likely you belong to different groups. You might belong to a different church, attend different schools, use a different internet service provider, root for different sports teams, and work with different charitable groups. The fact that you live next to one another does not compel you to share these things in common; you remain free to associate with those you wish to.
So why must neighbors be forced to associate in the same political government? Why must the conservative Republican in the most socialist part of the country be compelled to be subject to the same government as those with whom he strongly disagrees? Can’t these governments abide by the same principles as other organizations? Why do we treat the state any differently? If anything, shouldn’t we be more demanding of consent and legitimacy since political governments tend to be a touch more violent than the chess club or Boy Scouts?
Society functions as a result of the market—an exchange of ideas, products, and services in which those who want our money or time are competing against one another. The local insurance agent knows that if his prices are too high, you’ll go elsewhere. Don’t like the offerings from the restaurant down the road? Your family will keep driving to find something better. And if the book club is causing you grief, you might search out another like-minded group—or better yet, start your own!
Mobility is important in this competition. Without having to disrupt your life by moving elsewhere, you can choose from a variety of organizations with which you might affiliate. And because it’s easy for you to leave one and join another, these organizations have an interest in constantly trying to win you over—they have an incentive to be on their best behavior. They improve their quality, lower the
ir prices, and increase their attention to customer service. If they don’t, they’ll lose your support—and if others join you, they will go out of business.
Monopolies don’t share these characteristics. Think of the United States Postal Service. It’s well known for being inefficient and slow, with poor customer service, ever-increasing prices, and an inability to reap a profit. Congress prohibited competition with the USPS for delivering letters, punishable by a fine of up to $500, a six-month stint in prison, or both. And it’s exempt from state and local taxes, a $14 billion per year boost that UPS and FedEx don’t enjoy.
Remember Lysander Spooner, the essayist from earlier in the chapter? He tried to compete against the USPS. Frustrated by declining quality of service and increasing costs, he set up the American Letter Mail Company, both to provide a better service and to directly challenge the government-created postal monopoly. USPS revenue began to decline as Spooner’s company grew.
In response, the Postmaster General convinced Congress to lower the price of mail—something set not naturally by the market, but artificially by the government itself. In March 1845, the reduction in price was legally approved. Spooner, in turn, lowered his rates to keep up the competition. A few years later, Congress fired back, lowering the rates again while also enacting a new law to further protect the government’s monopoly on mail distribution—closing the remaining loophole Spooner was using. He was defeated—put out of business by the state.26 And since that time, prices have exploded while service continues to be substandard. This is the danger of not having competition.
Lessons from a Lemonade Stand Page 8
