Mr. Ostrowski makes some great points to which I would add Lysander Spooner’s No Treason VI: The Constitution of No Authority to further understand how the Constitution is illegitimate.
The Myth of Political Consent
by James Ostrowski
This is an excerpt from Direct Citizen Action: How We Can Win the Second American Revolution Without Firing a Shot.
Permit me to digress into a discussion of the meaning of political consent and its withdrawal. I am not saying that the American people ever explicitly consented to be ruled by the regime on the Potomac, or that they are parties to some mysterious Social Contract that implies their consent. That is all utter nonsense and propaganda. I know I never consented to be ruled by a regime that I have strongly opposed since my teenage years. Nor have I ever signed a Social Contract allowing them to rule over me. I’d be a jackass if I had.
To the best of my knowledge, no living American ever signed a contract to be ruled by the creepy politicians in DC. There are people long dead who signed a proposed Constitution and there are 11791 people long dead who voted at state conventions to ratify the Constitution. However, no living American ever agreed to be bound by the consent to be governed apparently given by people long dead that they did not know.
Libertarian legal scholar Randy Barnett has brilliantly refuted all possible theories of how citizens can be found to have implicitly consented to be ruled when it is perfectly obvious that they have not explicitly consented. See, Restoring the Lost Constitution (2004), pp. 11 et seq.
Voting does not imply consent as we never get to vote on the legitimacy of the regime itself. And what if you vote against the regime as I have done in every election since I was allowed to vote? How in the world can that be construed as consent? Well, I played the game. Okay, so if I stop voting, I have withdrawn my consent? That’s a bargain! I will stop voting, withdraw my consent and the tax bills will cease. Hurray! Yeah, but you could have played the game, they will say. Barnett replies: “It is a queer kind of ‘consent’ where there is no way to refuse one’s consent.” (p. 16). Barnett goes on to demolish all the familiar rationalizations for why average citizens have “consented” to be governed by political thugs in DC:
1. Residency – this argument “presupposes that those who demand that you leave already have authority over you.” (p. 18) It’s a circular argument.
2. Acquiescence to the laws. “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?” (p. 21)
3. Acceptance of the regime. This proves too much, according to Barnett. Even oppressive regimes have the passive acceptance of their people in the sense they do not actively revolt.
Acceptance of benefits. This is the most common argument made by liberals these days. With respect to the alleged benefits of the state’s legal system, Barnett simply notes that there can be no consent since there is no way to opt out. The argument from receipt of tangible “benefits” also fails. These are paid for by compulsory taxes you never consented to. Only if such things as roads, schools, and fire protection were funded voluntarily, could you be said to have consented to the regime by using them. That never happened of course. Also, again, to consent, there must be a reasonable way not to consent. If I refuse to use the streets, I die of starvation. It’s a distorted view of consent that leads to the “argument”: join us or die!
Thus, we the living never consented to the current regime in the first place in any meaningful way. Thus, what I am proposing is this: we need to make explicit what is already implicit. We need to announce that we do not accept the legitimacy of the regime. This regime is blatantly, openly and proudly violating our natural rights. It is not legitimate within the clear understanding of our founding document, the Declaration of Independence. Thus, you have no moral obligation to support it. Withdrawing moral support for the regime is critical since public support is the very basis of the regime’s power. That is why government schools are so critical to the maintenance of the regime’s power. And that is why even totalitarian regimes have elaborate propaganda operations.
I emphasize again that I do not advocate civil disobedience. Why engage in risky and costly law-breaking when we can take America back through lawful and peaceful means?
If the regime begins to unambiguously violate its own constitution, then it becomes the practitioner of civil disobedience and the people will have a moral and legal right to resist as I explain further in Chapter 20.
1. In 14 states including Vermont.
June 24, 2010
James Ostrowski is an attorney in Buffalo, New York and author of Government Schools Are Bad for Your Kids: What You Need to Know and Political Class Dismissed: Essays Against Politics, Including “What’s Wrong With Buffalo.” His latest book is Direct Citizen Action: How We Can Win the Second American Revolution Without Firing a Shot. See his website.
Copyright © 2010 James Ostrowski