Consent of the Governed

Does it mean anything?

This is one of the most insipid phrases in the entire political lexicon of the West, now favored in particular in the U.S. in the context of birthright citizenship. I take particular issue with the employment of it in that regard as done here. The unfortunate author does not realize that he is echoing the apologists and advocates of slavery with the chain of being (where the status of the parents determines the status of the children, and grandchildren, etc.) which the 14th Amendment was very, very expressly disavowing. The entire premise of respect for the rights of an individual spurns the conceit that you are nothing but the legacy of your familial station (be that common or aristocratic, going back to our English common law heritage). The equality before the law (as Jefferson saw in “all men are created equal”) is grounded in that individuality, not in who your parents were.

In the BDSM subculture, consent is a watchword, a fetish of its own if you will. The far edge of that subculture has an interest in CNC - consensual non-consent. That seeming contradiction is “I give my consent for you to do things we didn’t expressly agree to doing” - which in the consent-centric model (of only doing what we agree to) would be a violation of consent. Yeah, it’s a little circular, but you’re going to see the political ramifications as we go forward.

Previously, I have brought up the problem with Sovereignty and from whence arises the legitimate use of power/coercion. Equally, Lysander Spooner (as referenced in that piece) argues the problem of consent, which, the author cited above elides. I did not consent to my birth here, nor to anything else that my parents may have chosen. This is an obvious logical impossibility, for as the author notes, I cannot consent to anything until I reach the age of consent. That I owe a “debt” to my sovereign for the protection afforded thereunder is a debt for which I could not legally contract, so it cannot be ‘collected’. This is a conundrum going back to Hobbes, and no less so under our more Lockian approach. Given that, how can it be assumed that I have both the benefits and burden of citizenship at the age of consent, with no formal declaration that I do in fact consent to being a citizen? Why no oath of allegiance (i.e. expression of my consent to be governed) then? If I truly give my consent, it must be informed and express, not implied, yet nowhere in all of the writing about consent of the governed will you ever find such a demarcation. Spooner treats this in full where I only give you a thumbnail.

Likewise, the withdrawal of consent to the rights and obligations of citizenship, is not so easily given. In Mr. Portteus’s article he notes the two state Constitutions that provided that individuals:

…have a natural and inherent right to emigrate from one State to another, that will receive them, or to form a new State in vacant countries, or in such countries as they can purchase, whenever they think that thereby they can promote their own happiness.

Notice if you will the proviso - that will receive them - which takes a right to emigrate and turns it into a license (the express permission of that sovereign to grant residency). Also consider the very Lockian - vacant countries - which means those absent of some governing authority (which is the mechanism in which all property rights are grounded, literally) and/or the absence of any humans (or more conveniently - civilized people¹), or in which it might be purchased (from whom one wonders, and under what authority of title?). In theory, this is lovely, how does it work in practice? It clearly does not, because there is no place on this planet that is not presumed to be under the control of some sovereign (though there may be quibbles about the authenticity of that sovereignty)².

One could supposedly revoke his consent in situ, and be consigned to some kind of second-class citizenship. There is course no such provision in our law; citizenship is a binary, and all are equal (except of course when they weren’t and we remedied that through expansion of the franchise via amendment and through legislation on civil rights). To be a second-class citizen is an affront to our value of equality; it is anathema. So my only escape from consenting (through implication and birth) to this governance is to willingly submit myself to another (which I may only do at the discretion of that sovereign government). I almost feel a little like Franz Kafka.

Now, let me close with what I hope to dispose of this silly birthright citizenship argument - and that is the clause of the 14th Amendment that every critic of birthright citizenship ignores. You will even catch them in the act when they highlight the 14th, since they all do the same thing:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

They highlight what I have bolded, and studiously ignore the intervening 6 words. So let us contemplate for a moment what it means to be subject to the jurisdiction thereof. It means you can be held accountable under the law. If you commit a crime, you can be arrested, tried, convicted and punished. Do you know who is exempt from that? Not legal foreign residents (temporary or permanent), nor tourists, nor illegal immigrants; only those with diplomatic immunity. Our real problem with the jurisdiction thereof isn’t that so many people in this country are not covered by it, it is that we think we can apply our law to anyone, anywhere in the world, if they have sufficiently offended those in power. This is why they try so desperately to ignore that clause, as though it only attaches to citizens, or that any and every foreigner on these shores is somehow exempt. They are not, only a very small fragment is, and as diplomats they are at all times subject only to the jurisdiction of their own government.

Why do these opponents of birthright citizenship go to all of this trouble? Not because of the children born here to foreigners being recognized as U.S. citizens - that’s not the real issue. The real issue is a policy, not a Constitutional matter; it is the dreaded anchor baby, as Mr. Pottreus himself admits. And the policy that causes that to be a problem is our value-driven family unification. A baby born in this country to illegal immigrants is a U.S. citizen, but only confers immigration status to the parents because of policy. We could unquestionably deport the parents - who would then have to choose to take their infant American citizen with them, or leave that child to be raised under fosterage. Those who would bend the 14th Amendment into pretzels do so because they lack the courage to say this policy is misguided. You see, I’m a heartless bastard, and therefore I can say that this family unification policy is preposterous; no politically minded person would dare to do that because the family is sacrosanct. Too many voters - all fine citizens - would dumbly respond to the political challenge sure to be raised by the morally upright and compassionate politician that praises the family above all. What political figure would dare stand against that? It might be a little problematic to have children born here, reared elsewhere, and then allow them to return (at the age of consent) to enjoy their citizenship - as their birth entitles them. They wouldn’t have been accultured as we might like, but we do manage this with those that naturalize, so it isn’t insurmountable.

Now let me tie things up with my earlier allusion to BDSM³. Consent means, in that consent-centric world - mutually agreed acts and parameters to the activities between two or more people. One party consents to give power to another party to do certain things, and nothing beyond that; consent is always provisional - never absolute or irrevocable. Anything outside of those certain things will be viewed as a consent violation⁴, and the violator will be viewed as persona non grata within the BDSM community. This could mean they are shunned from future participation in community events and treated as a pariah - reputational ruin and isolation. As I said, there is a subgroup to the larger subculture that engages in CNC - activities beyond the boundaries that normally are negotiated. The power is thus granted with no express limits (other than of course things that could result in civil or criminal proceedings, so there are still limits).

The reason I bring this to your attention is to contrast it with consent of the governed. What exactly is the nature of the consent we supposedly give to those who govern us? Is it express, and limited, such that we can revoke it at will, or charge those governing us with failing to abide the limits and thus stopping them from doing what they are doing? Or is the consent to be governed more a matter of consensual non-consent - where those with power can do with it mostly what they will and we can only reject that by the most extreme measures⁵? Most importantly, power comes from our consent only, or it has no legitimacy for us to respect it and bind ourselves in accordance. If consent of the governed is nothing but an empty rhetorical flourish — it doesn’t even have the active respect given to consent in the BDSM subculture for some sexual thrills — what is the true nature of our governance?

1. Savages, noble or not, obviously excluded.

2. Consider Gaza. What sovereignty attaches to that chunk of the planet? Trump’s ridiculous proposal is no more absurd than the Palestinian proclamation of “from the river to the sea”. And in reality, any Gazan sovereignty would be absolutely subject to Israeli sovereignty, which I believe would properly categorize it as suzerainty. Likewise the Kurds aspire to an ethnic sovereignty, but the legacy of Sykes and Picot denies them.

3. Yes, there is a bondage pun/double entendre there.

4. This can be as trivial as a kiss that was not part of the negotiated agreement.

5. *cough* Trump *cough* (or worse)