Is there an Implied Consent to be Governed?

Implied consent means that what one may or may not do is understood without having to ask or say explicitly. In personal relationships, having established some interactions, it is implied that one may continue doing these. If a store is open for business, it is implied that customers may enter, and also that the customers will pay for what they take.

Implied consent has also been applied to the relationship between a resident and the government. The idea is that a person may not agree with some policies, but benefits from others, so it all evens out, and therefore there is an implied consent by all regarding government policies. Some say that if one does not move out, one implicitly agrees with the laws.

Being under the jurisdiction of a government is a major “state” of affairs. We might consider what Lysander Spooner, a 19th-century American philosopher, had to say in his book No Treason: The Constitution of No Authority.

“Neither law nor reason requires or expects a man to agree to an instrument, until it is written; for until it is written, he cannot know its precise legal meaning. And when it is written, and he has had the opportunity to satisfy himself of its precise legal meaning, he is then expected to decide, and not before, whether he will agree to it or not. And if he do not then sign it, his reason is supposed to be, that he does not choose to enter into such a contract.”

In the laws of the United States and many other countries, important relationships are required to be in writing and signed. When one buys real estate, the new buyer must sign a contract. When one gets married, there is a signed agreement. Being under the jurisdiction of a government is just as important.

When one buys a unit of a condominium or homeowners association, one is presented with the community documents, the master deed and bylaws, and the buyer signs an agreement. But this is not done when one moves into a governmental jurisdiction. Why not? Spooner says:

“The most they can say, in answer to this question, is, that some half, two-thirds, or three-fourths of the … adults of the country have a tacit understanding that they will maintain a government under the Constitution; that they will select, by ballot, the persons to administer it; and that those persons who may receive a majority, or a plurality, of their ballots, shall act as their representatives, and administer the Constitution in their name, and by their authority.”

But, says Spooner:

“No body of men can be said to authorize a man to act as their agent, to the injury of a third person, unless they do it in so open and authentic a manner as to make themselves personally responsible for his acts. None of the voters in this country appoint their political agents in any open, authentic manner, or in any manner to make themselves responsible for their acts. Therefore these pretended agents cannot legitimately claim to be really agents. Somebody must be responsible for the acts of these pretended agents; and if they cannot show any open and authentic credentials from their principals, they cannot, in law or reason, be said to have any principals. The maxim applies here, that what does not appear, does not exist. If they can show no principals, they have none.”

Although Spooner thought that his arguments against a governmental implied consent supported anarchism or voluntary governance under explicit contracts, there is another possibility. Coercion is the opposite of consent, and no consent is needed to defend against invasions. Therefore if there is a government whose sole function is to protect people from coercive harm, and that government does not itself commit coercive harm both in its laws and its public finances, then no consent is needed.

The function of natural moral law is the proper governance of humanity, to prohibit coercive harm. Therefore, as I wrote in Soul of Liberty, “There is no moral authority for government other than to enforce the Universal Ethic.” If government only enforces natural moral law, as expressed by the Universal Ethic, then no consent is needed, regardless of how the governors are selected, even if the governor is a dictator, as there is only protection from coercive harm.

However, in human reality, there is no perfect governance, and people disagree on the details of law, and so, as a practical matter, if we take human equality to its logical conclusion, no person should be above any other. That implies a voluntary governance among peaceful persons, enacted with the explicit consent of signed contracts. As to those who choose to not be peaceful, since they do not honor consent, they implicitly agree to be punished. That is the real implied consent in governance – those who coercively harm others imply that they may be resisted, put on trial, and punished.

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This article also appears in progress.org under “Implied Consent.”

Radical Democracy

Going to its roots, democracy is kratos, rule, by demos, the people. Pure democracy is the rule by all the people, not just some of the people. The only way to implement absolute democracy is for each participant to voluntarily agree to the governance structure, and be able to exit when one no longer agrees.

Democracy can be divided into mass democracy versus “cellular” or small-group democracy. Mass democracy occurs when the voting group is so large that the people cannot individually know the candidates. In a small-group democracy, the voters are able to join meetings with candidates in groups small enough so that every person is able to fully participate. In a small group, a candidate may distribute literature at a low cost. Although money can play a role in a small group, the influence of moneyed interests is limited by the ability of other candidates and promoters of propositions to counter large spending with personal contacts. A small voting group solves the problem of having both free speech and the will of the people.

The German sociologist Max Weber, writing in the late 1800s and early 1900s, wrote that “bureaucracy inevitably accompanies modern mass democracy in contrast to the democratic self-government of small homogenous units.” Mass democracy cannot be pure, radical, and absolute. “The demos itself, in the sense of an inarticulate mass, never ‘governs’ larger associations.”

A mass democracy is governed by how the leaders are elected. The politicians must use the mass media to send their messages to the public in order to curry their votes. These messages have to be condensed and simple, as most of the public will not pay attention to detailed issue analysis. The messages are often negative attacks on opponents. And the messages have to be paid for, which generates an inherent demand for large amounts of campaign funds. While individuals do send contributions to parties and candidates, much of the financing comes from special interests such as corporations, labor unions, lawyers, and the financial and real estate industries.

Economists use the odd term “rent seeking” for the seeking of subsidies, privileges, and protection from competition. The classical economists recognized that land rent is a surplus. They generalized the concept to “economic rent,” any payment beyond what is needed for production. Subsidies to special interests are economic rents.

Governments today practice imposed representative mass democracy. The implied ideology is the moral supremacy of the majority in each particular issue. The majority imposes its will by force on the minority. As Weber stated in his essay “Politics as a Vocation,” “He who lets himself in for politics, that is, for power and force as a means, contracts with diabolical powers.”

Many people think that democracy is based on equality, since each person has an equal vote. But Weber wrote, “The propertyless masses especially are not served by a formal ‘equality before the law.’” The poor believe that justice requires compensation for their economic deprivation. But the political process determines how this is done, and “under the conditions of mass democracy, public opinion is communal and born of irrational ‘sentiments.’” The sentiments of the poor tend to seek a forced redistribution of wealth in their favor, since that is the superficial solution.

The radical alternative to imposed mass democracy is voluntary small-group voting. The political body is divided into tiny neighborhood cells, just as the human body is composed of small cells. The population of a neighborhood cell should be about 1000, small enough to know the candidates and meet personally to discuss issues. Citizens vote only for a neighborhood council.

Then a group of neighborhood councils, say about 20 or 30, elect, from their members, representatives to the next higher or broader council. The second-level council elects the next higher level legislature, and so on, all the way to the highest level parliament or Congress. That legislative body then elects the president.

Such cellular democracy can replace the mass democracies that prevail today, and that would be a major improvement, in extricating money from politics. But radical democracy also requires another change: replacing imposed democracy with voluntary democracy. The neighborhood cells would be voluntary contractual organizations.

In law, the written contract is required for major decisions, such as the purchase of real estate. The American political philosopher Lysander Spooner wrote in The Constitution of No Authority:

“It is a general principle of law and reason, that a written instrument binds no one until he has signed it… The laws holds, and reason declares, that if a written instrument is not signed, the presumption must be that the party to be bound by it, did not choose to sign it, or to bind himself by it…. Neither law nor reason requires or expects a man to agree to an instrument, until it is written; for until it is written, he cannot know its precise legal meaning. And when it is written, and he has had the opportunity to satisfy himself of its precise legal meaning, he is then expected to decide, and not before, whether he will agree to it or not.”

If a signed contract is needed for real estate transactions, how much more important is the political transaction of governance? If one joins a residential or condominium association, the law requires a display of the laws governing that association, and the new member must sign if he is to join. How much more important, then, is this principle for general governance? Radical democracy requires the signed consent of each member to the written contract.

The rule of all the people begins with the recognition of individual sovereignty, a contract among equal sovereigns for governance, and then implements small-group multi-level governance to let the people govern and minimize transfer-seeking by special interests.

Of course, even radical democracy does not guarantee liberty. A free society must have a constitution that protects individual liberty from the tyranny of the majority. But without genuine democracy, a constitution is an unsigned document that becomes manipulated to provide the appearance of equality and freedom. Behind it is the reality of imposed “diabolical powers,” the tyranny of both majorities and minorities.

(This article is also at http://www.progress.org)

Cruz Barn Burner: Strawman or Paper Tiger?

Commentary

Senator Ted Cruz (R-TX) burned the barn to the ground with his 21 hour ‘fauxlibuster’ this week on the Senate floor.  Supporters of Cruz’ increasingly libertarian voice relish his statesmanship and clarity, and conversely, no doubt detractors and skeptics dismissed much of the material content addressed due to Cruz’ rhetorical devices, not limited channeling statist icon Darth Vader while lampooning Senator Mike Lee (R-UT).

The usual political hay has already been spun by the  pundits, including Limbaugh and Coulter, providing color commentary and cold shots alike.  Senator Cruz’ profile is quickly rising, and he is being touted as a quill for the young libertarian porcupine within the halls of congress — alongside the likes of Marco Rubio and Rand Paul.  Indeed, Cruz is more than likely positioning himself for a cabinet post in potential Paul campaign 2016, bidding the GOP base against New Jersey’s increasingly progressive Chris Christie.

It is assumed Hillary Clinton will be the ochlocratic candidate.

Rafael Cruz (Ted’s father) makes impassioned appeals to the ideals of Americana-brand liberty for large crowds of supporters, evoking support from the base of the GOP with the family’s brand; scathing indictments of our Republic’s current state, drawing parallels to Bautistas’ fascist, then Castro’s communist Cuba and the horror of living under a totalitarian regime two times over.  Rafael Cruz escaped Castro and fled to the liberty and free markets in Canada, then here in the US, finding success through a technology connection to the petroleum industry — a familiar Horatio Alger-esque tale — Millitary Fascism to Communism and to Corporate Fascism in less than a generation..

…and then there is  Mrs.Heidi Nelson-Cruz, the senator’s wife.  Ted and Heidi met in the Bush White House, while she was working for Condi Rice.  A Claremont-McKenna and Harvard Business grad, Heidi Nelson-Cruz currently works for Goldman-Sachs as a Vice President.

Texas seems to have a GOP senator with strong ties to petroleum, the Bush White House and good ol’ Goldman-Sachs through his wife.  These observations, coupled with the current political landscape may provide insight the origin and intent of the Senator from Texas’ dazzling libertarian all-nighter.

Cruz may need to spend another 21 hours in an attempt to burn down his own straw man — free markets or corporatism?  If his wife works for the self-same Goldman-Sachs that profited from the TARP bailout rammed through the halls of Congress at the tail end of the Bush regime and spilling into the Obama regime; the Goldman-Sachs that boasts both parties’ presidents and cabinets in their pockets going back to (at least) the Clinton administration, would that not be a conflict of interest?  Cruz made open comment about the excellent health insurance provided Heidi’s Vice-Presidency with Goldman-Sachs.  The banking cartel’s involvement in  and subsequent manipulation of the political sphere is a common link between both ends of the popular political spectrum, and to assume that a politician’s libertarian common sense would be immune to the pressures and normalcy bias of the human condition would be naive.

Ted Cruz talks a good game.  He offers the concepts and economic pedigree libertarians have been waiting to hear from a GOP Senator other than Ron Paul, and presents these concepts in a clear and relatable way.  His voting record as a Senator approaches perfection.  Unfortunately, many of the Tea Party Rockstars* who held great promise for the cause of liberty have proven to be paper tigers.  However liberated Ted Cruz’ economic policy could be, the rigor of skepticism cannot be abandoned by liberty-minded citizens just yet.

As Patrick Henry, liberty lover and skeptic of government, famously remarked of the Constitutional Convention, I smell a rat…and hope on the bones of Lysander Spooner for our Republic’s sake, that I am wrong about the Senator from Texas.

*Rockstar Brand Tea flavored energy beverage is not endorsed by publisher or any so-called Tea Party Rockstars.

Qui Bono,

L.A. Repucci