“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.”
– Declaration of Independence, United States of America, 1776.
The historic political phrase “The consent of the governed” 1 used in the U.S. Declaration of Independence is completely misunderstood by OPCA theorists. They theorize that this phrase implies a “human” or “living man” must give INDIVIDUAL CONSENT for legislation to be enforceable.
With the rise of democracy in it’s infancy, this element of U.S. political theory, “consent of the governed” has always been understood as the expressed “will of the people” to be gained at the ballot, by rule of majority, not individually at random. The “governed” are a “collective”. The “consent” is therefore “collective consent”
As long as a government is elected by the people, according to constitutional guidelines, they have legitimacy in governance. They have what OPCA theorists know as “the consent of the governed”. OPCA theorists seem to always try to apply principles of courtroom law (civil contracts etc) to legal philosophy, in this case arguments in relation to consent to be governed, but for people to be governed subject to the country’s laws, including statute law, does not require their signature on a piece of paper.
I completely understand why some people would say: “Well, I didn’t consent to this law; so why should I be governed by it?’ But consent is not required in relation to each and every individual law. Consent is only required insofar as the government needing general consent to its rule so that it is considered legitimate. If everyone rose up against the governments rule, it would not be considered legitimate and general consent would essentially be withdrawn. This is not something written down in the books; it is not a matter of black-letter law. This is quite simply the practical reality of our situation.
The term “Sovereignty” is also misunderstood by OPCA theorists, in that, politically, it likewise doesn’t exist on an individual level. In terms on the constitution, the sovereign is the Australian people, as a collective. To make it clear, it is not you individually as an Australian that is sovereign, the collective is sovereign. The individual is never sovereign, that concept ended painfully, beginning with the Magna Carta over 800 years ago. Sovereignty has nothing to do with monarchy, or even the original inhabitants of Australia. It represents legitimate rule, as opposed to actual power. In democratic countries like Australia, “sovereignty” is connected to the people, thus we can talk about the sovereignty of the people. As such, it also represents democratic legitimacy, and the right to govern, and includes the concept of national sovereignty.
The United States of America was the first modern state formed around the principle of “The consent of the governed“. 2 The term implies that the people of a country or territory have the right of self-rule and must consent, either in a direct referendum or through elected representatives, to the establishment of their own government. In most modern cases, the form of the state is a republic, or rule by voting citizens within an agreed-upon constitutional and legal framework. But some monarchies also operate with the consent of the governed, as in the United Kingdom, where over time the monarch has given up most political and administrative functions to elected officials and the government is formed through regular elections.
An original consent of the governed — the adoption of a new constitution or the formation of a new state — is usually achieved through direct democracy such as a referendum or plebiscite. But it may also be achieved through elected representative institutions, such as an existing legislature or a special constitutional assembly. In some cases, the establishment of a new governmental system requires a “supermajority,” from three-fifths to three-quarters, to convey overwhelming popular assent, but often a simple majority suffices. (For example, the U.S. Constitution required the approval of ratifying conventions in at least nine of the thirteen states for it to take effect. An amendment to the constitution must be passed by three-quarters of the states either by a majority vote of their state legislatures or in ratifying state conventions. Yet, many countries have used simple popular majorities in national referenda to establish both national and supranational structures. What remains fixed is the principle that the people are sovereign and must provide their fundamental consent to be governed.
The most common form of democracy is a parliamentary system, in which the executive branch is controlled by the political party or coalition of political parties that wins a majority of seats in parliament and is able to form a government. Unlike in the American presidential system, parliamentary systems have few constitutional checks and balances between the executive and legislative branches. The system relies heavily on the oversight of the opposition party or parties in parliament. Once a form of democratic government is established, elections are the main vehicle for renewing the consent of the governed. Each election is an opportunity for the people to change their leaders and the policies of the state. When a particular government loses the people’s confidence, they have the right to replace it. The legislature may pass laws to reform the system within the bounds of the constitution; if laws are insufficient, the people and their representatives can choose to modify or replace the constitution itself.
Parliamentary systems provide a more direct consent of the governed through elections, whether in “first past the post” systems like the United Kingdom (where seats in parliament are won by the person with the most votes, whether or not it is a majority) or in proportional representation or mixed systems (where most seats are determined proportionally according to the national vote by party list). Oddly, the United States of America, the world’s oldest continuous democracy, does not offer direct but indirect election for its national office through an Electoral College. While the Electoral College vote usually has coincided with the national vote, in 2016, for the second time in 16 years, the national vote winner (by 2.85 million) was denied the office of president in favor of the winner of the electoral college vote, which was achieved by several narrowly won victories in key states.”
More interesting references and definitions HERE: 3
This is from the UK Government, defining what “Policing by consent” 4 means:
“It should be noted that it refers to the power of the police coming from the common consent of the public, as opposed to the power of the state. It does not mean the consent of an individual. No individual can chose to withdraw his or her consent from the police, or from a law.”
- 1 https://walkernewsdesk.wordpress.com/consent-of-the-governed-john-locke-thomas-jefferson/ https://freemandelusion.files.wordpress.com/2018/06/consent-of-the-governed-john-locke-thomas-jefferson-_-walker-news-desk.pdf
- 2 http://democracyweb.org/consent-of-the-governed-principles https://freemandelusion.files.wordpress.com/2018/06/the-consent-of-the-governed_-essential-principles-_-democracy-web.pdf
- 3 https://en.wikipedia.org/wiki/Consent_of_the_governed
- 4 https://www.gov.uk/government/publications/policing-by-consent