Consent Theory in the Radical Libertarian Tradition

“Oh, Ye Are For Anarchy!”: Consent Theory in the Radical Libertarian Tradition

Carl Watner 1986

source

…Part II

(Much like the assumption that if one’s parents are English, one’s allegiance and citizenship are automatically British.) “In Thoreau’s day, the church taxed each member of its congregation, and the taxes were billed and collected by the town officials.”[l18] The First Parish Church (Unitarian) of Concord “taxed” Thoreau in 1840, but he refused to pay. The tax was finally disallowed when at the request of some of the selectmen, Thoreau agreed to present them with the following statement: “Know all men by these presents, that I, Henry Thoreau, do not wish to be regarded as a member of any incorporated society which I have not joined.” Thoreau adds that “if I had known how to name them, I should then have signed off in detail from all the societies which I never signed on to; but I did not know where to find a complete list.”[119] One honestly wonders whether Thoreau ever considered himself as joining the Commonwealth of Massachusetts?

Thoreau’s friend and confidant Charles Lane, in his series of letters published in 1843 on “A Voluntary Political Government,” made a number of interesting comments about the meaning of citizenship. In a discussion of consent, Lane points out that the preamble to the state constitution of Massachusetts reads: “The body politic is formed by a voluntary association of individuals.” If this be the true case, Lane argues, then his advocacy of “voluntary political government” entails a principle already embraced by the Commonwealth of Massachusetts in her very own constitution. As Lane explains,

All, therefore, on behalf of which I am asserting may be summed up as the restoration of the primary constitutional principle. I give no strained or unusual value to the word “voluntary” on this occasion. Either it means choice, or it means nothing at all. If it does not assert the free voluntariness of every individual
who comes into “the body politic” it signifies nothing;
or at least nothing which common sense can lay hold of. If the voluntariness is to be confined to those who have the power, and they are to be at liberty to force every one into the association, then I must esteem this word “voluntary” to be a solemn mockery; and the sooner it is erased, and the term “forced” put in its stead, the sooner the words of the constitution harmonize with the idea of its framers, and be at one with the very practice of its supporters.[120]

The nineteenth century thinker who, perhaps more than any other, elaborated on the significance and implications of government by consent was Lysander Spooner. Spooner (1808-1887) was a constitutional lawyer, abolitionist, and freethinker who became progressively more radical as be grew older. In an appendix to his Essay on Trial by Jury, published in 1852, Spooner noted (much like Molyneux and others) that it was a principle of the common law that no persons could be taxed without their personal consent. To Spooner, even before he saw the governmental carnage and atrocities of the Civil War, “taxation without consent” was “as plainly robbery” whether it was enforced by one man against millions, or enforced by millions against one man who did not consent. “Neither the numbers engaged in the act, nor the different characters they assume as a cover for the act” could ever alter the fact that property was being forcefully taken from at least one person against his will. Spooner defended the principle of “no taxation without consent” in the following manner:

If the government can take a man’s money without his consent there is no limit to the additional tyranny it may practice upon him…It is therefore a first principle, a very ‘sine qua non’ of political freedom, that a man can be taxed only by his personal consent…Government have no more right, in nature or reason to ‘assume’ a man’s consent to be protected by them, and to he taxed for that protection, when he has given no actual consent, than a fire or marine insurance company have to assume a man’s consent to be protected by them, and to pay the premium, when his actual consent has never been given. To take a man’s property without his consent is robbery; and to assume his consent where no actual consent is given, makes the taking none the less robbery. If it did, the highwayman has the same right to assume a man’s consent to part with his purse, that any other man, or body of men, can have. And his assumption would afford as much moral justification for his robbery as does a like assumption, on the part of the government, for taking a man’s property without his consent. The government’s pretence of protecting him, as an equivalent for the taxation affords no justification.[121]

After the Civil War, Spooner wrote a series of pamphlets called No Treason. According to Spooner in these essays, governments and nations, if they can be said to rightfully exist at all, can exist only by consent, and this means: “the separate individual consent of every man who is required to contribute, either by taxation or personal service, to the support of the government. . . . Either the separate individual consent of every man who is required to aid, in any way, in supporting the government is necessary, or the consent of no one is necessary.”[122]

In No Treason, No. 2, Spooner argued that “either ‘taxation without consent is robbery’ or it is not. If it is not, then any number of men who choose, may at any time associate; call themselves a government, assume absolute authority over all weaker than themselves; plunder them at will; and kill them if they resist. If, on the other hand, ‘taxation without consent is robbery,’ it necessarily follows that every man who has not consented to be taxed, has the same natural right to defend his property against a tax-gatherer, that he has to defend it against a highwayman.” [123]

In his final pamphlet of this series, No Treason, No. 6, “The Constitution of No Authority,” Spooner broke new ground by demolishing the theory of tacit consent. Spooner argued that merely living in a certain geographic area under control of a government, or voting in government elections, in no way implied one’s consent to the government of that territory. Elections mean nothing; for Spooner showed that a majority of people never vote, and of those who do, the number supporting the elected candidates is so small (as a percentage of the population) as to be ludicrous. “Elections are secret; therefore, you cannot call representatives legal agents, since they do not know specifically whom they do represent.” Therefore, having voted in an election in no formal way demonstrates that one consented to anything. “On the question of the Constitution itself, no vote ever had been taken, and as a legal contract the Constitution has no validity.”[124] According to Spooner,

the Constitution was never signed, nor agreed to, by anybody, as a contract,
and therefore never bound anybody, and is now binding upon nobody; and is,
moreover, such a one as no people can ever hereafter be expected to consent
to, except as they may be forced to do so at the point of the bayonet.[125]

The anarchistic implications of all this should be quite clear. The state has no right to raise any taxes except as they are “voluntary” contributions or “contractual” obligations for services rendered.[126] In fact the historical origin of taxation demonstrates its relationship to the idea of consent. At least some forms of taxation “were matters of voluntary grant,” but “their history is bound up with the gradual growth of the right of the majority to bind the individual.” During the reign of Henry III (1227-1258), an example is cited of a nobleman claiming immunity from a tax “on the ground that he as an individual had not consented to its levy.”[127] As another commentator has pointed out, “consent no longer effectively safeguards the sanctity of private property if it ceases to be personal and individual.” Yet the very growth of such expressions as “no taxation without representation” tended to purposefully obscure this important point. Once the parliamentary practice became accepted by which “electors appointed representatives, or proxies, to give consent in their name,” the sense of individual consent to taxation “inevitably lost ground.”[128]

In its extreme form the doctrine of consent signifies that a man is bound only by what he consents to. If individual consent is the only rightful source of power, the question must be raised why “even a single objector should be coerced, possibly against his own conscience.”[129] This “anarchial principle” has always been embraced by radical libertarians, and certainly no one belabored the point more than did Spooner.”[130] As one of the major contributors to the development of the proprietary theory of justice in the libertarian tradition, one of Spooner’s greatest achievements was “to demolish the tacit consent doctrine, particularly as it applied to the U.S. Constitution. Spooner’s natural rights theory, combined with his refusal to recognize the surrender of rights through tacit consent, brings out the radical anarchism latent in the Lockean tradition.”[131]

Certainly one critical element of the proprietary theory of justice was the view that one’s just property titles could not be rightfully alienated without one’s consent. That is what it meant to own property or exercise dominion over one’s own. This was noted by some of the predecessors of the Levellers, as well as by the Levellers and other seventeenth century political thinkers. Two years after Ponet’s treatise appeared, Christopher Goodman published his Superior Powers in 1558, in which he embraced natural rights, “declaring that men ‘may lawfully claim’ their liberty ‘as their own possessions,’ and concluding that ‘if they suffer this right to be taken from them,’ they are letting themselves be robbed no less than if they let their rulers remove any of their other goods.”[132] A century later, Richard Baxter, an English clergyman, reiterated the same point: “Propriety is naturally antecedent to government. . . . Every man is born with propriety in his own members, and nature gives him a propriety in . . . [the] just acquisitions of his industry. Therefore no rule can justly deprive men of their propriety, unless it be . . . by their own consent. . . . And men’s lives and liberties are the chief parts of their propriety.”[133] The radicalism of consent doctrine was twin-edged. No one could be obliged to obey a government to which he or she did not consent; but even more significantly, no one could be bound to contribute their “lives” or “properties” to such a government either. The necessity of having voluntary consent to taxation or conscription makes government an impossibility.

Radical political philosophy since the seventeenth century has been characterized to a large extent by these forms of “voluntaryism,” “by an emphasis on the assent of individuals as the standard of political legitimacy”[134] This review of consent theory in the libertarian tradition has sought to demonstrate that the individualist and voluntaryist character of the consent doctrine would actually “deprive every existing polity of its legitimacy.”[135] Its most perceptive critics, such as Sir Robert Filmer and Josiah Tucker, clearly saw this, and their critiques of consent theory were largely premised on this realization. Both Filmer and Tucker believed that the supporters of consent were “either internally inconsistent or disastrous in their prospective practical implications. Either their positions must be instances of remarkable stupidity or they must be held in bad faith. If they mean what they say, their beliefs would imply anarchy.”[136] They charged their opponents “with either evading the question or adopting theories that logically destroyed the moral authority of government. . . .”[137] Other others who embraced Lockean ideas were often not aware of the ultimate implications that could be deduced from their initial premises. There is no question but that “consent implies voluntariness and the association of almost every individual with the government which has control over him is clearly involuntary.”[l38] So for nearly three centuries now, the most perceptive political theorists have perceived that there is a large, unbridgeable chasm between the idea of consent and government. There is simply no way to cross that bridge, for inevitably to contend that government rests on consent is to begin the descent on the slippery slope to anarchism.”[139]

NOTES

a. Author’s Note: I would like to thank George Smith for originally pointing out many of the historical connections to be made in the intellectual history of the consent doctrine, especially for his references to Filmer and Tucker.

1. A. S. P. Woodhouse, ed., Puritanism and Liberty (Chicago: University of Chicago Press 1951), p. 59 of The Putney Debates.
2. George H. Smith, “William Wollaston on Property Rights,” Journal of Libertarian Studies 2 (1978):217-24, at 224.
3. Ibid.
4. Winthrop S. Hudson, John Ponet (Chicago: University of Chicago Press, 1942). Note that this volume also includes a photographic reprint of Ponet’s work (A Shorte Treatise of Politike Pawer; And of the True Obedience Which Subiectes Owe to Kynges and Other Civile Governaurs, With an Exhortacion to All True Naturall Englishemen, 1556). References to Ponet refer to this photographic reprint. See Ponet, A Shorte Treatise, title page and pp. 21, 35, 47, 79, 98.
5. Quentin Skinner, The Foundations of Modern Political Thought, Vol. 2 (Cambridge: Cambridge University Press, 1978), pp. 223, 320.
6. Hudson, op. cit., p. 144, and Ponet, op. cit., p. 88.
7. Hudson, op. cit., p. 137, and Ponet, op. cit., pp. 26-28.
8. Ponet, op. cit., p. 107.
9. Hudson, op. cit., p. 158.
10. Skinner, op. cit., p. 343.
11. Hudson, op. cit., p. 160.
12. Ibid., p. 210.
13. Ibid., p. 216, citing Charles Francis Adams, ed., The Works of John Adams, Vol, 6 (Boston: Charles C. Little and James Brown, 1851), p. 4.
14. The Oxford English Dictionary, Vol. I (Oxford: At The Clarendon Press, 1933), see “anarchical,” “anarchism,” and “anarchy,” pp. 307-8.
15. Gordon Schohet, Patriarchalism in Political Thought (New York: Basic Books, 1975), p. 107.
16. The Oxford English Dictionary, op. cit., p. 307.
17. Woodhouse, op. cit., Introduction, p. 51.
18. William Haller, ed., Tracts on Liberty in the Puritan Revolution, Vol. 3 (New York: Columbia University Press, 1934), p. 172, which is p. 56 of Parker’s text.
19. Woodhouse, op. cit., Introduction, p. 33.
20. Ibid., pp. 53, 65-68.
21. Ibid., p. 69, which is pp. 3-4 of Overton’s text.
22. Ibid., p. 75.
23. Ibid., pp. 72, 75, 85-86.
24. Ibid., p. 322, Sec. 8, “Leveller Principles,” citing from the Levellers’ “Large Petition.”
25. Carl Watner, ed., A Voluntary Political Government; Letters from Charles Lane (St. Paul: Michael E. Coughlin, 1982), p. 33.
26. Woodhouse, op. cit., Introduction, p. 87.
27. Carl Watner, “ ‘Come What, Come Will!’ Richard Overton, Libertarian Leveller,” Journal of Libertarian Studies 4 (1980): 405-32, at 406, citing Perez Zagorin, A History of Political Thought in the English Revolution (London: Routledge and Kegan Paul, 1954), p. 41,
28. Ibid., p. 408, citing H. N. Brailsford, The Levellers and the English Revolution (London: Cresset Press, 1961), p, 264.
29. Woodhouse, op. cit., The Putney Debates, p. 75.
30. Watner, op. cit., p. 409, citing Woodhouse, op. cit., Introduction, p. 91.
31. Woodhouse, op. cit., The Putney Debates, p. 53.
32. Ibid., p. 66. Note, however, that Wildman was arguing for a representative government with an expanded franchise, and not for anarchism.
33. Woodhouse, op. cit., Documents Relating to the Putney Debate, p. 440.
34. James Daly, Sir Robert Filmer and English Political Thought (Toronto: University of Toronto Press, 1979), p. 83.
35. John W. Robbins, “The Political Thought of Sir Robert Filmer” (Ph.D. dissertation, Johns Hopkins University. 1973), p. 17; and Peter Laslett, “Sir Robert Filmer,” William and Mary Quarterly 5 (1948, 3rd series):521-46, at p. 546.
36. Daley, op. cit., p. 86; and Peter Laslett ed., ”Patriarcha” and Other Political Works of Sir Robert Filmer (Oxford: Basic Blackwell, 1949), p. 36.
37. Daley, op. cit., p. 89.
38. Schochet, op. cit., p. 129.
39. J. W. Allen, “Sir Robet Filmer,” in F. J. C. Hearnshaw, The Social and Political Ideas of Some English Thinkers of the Augustan Age (London: George A. Harap & Co., 1928), pp. 27-46, at 28.
40. Laslett, ed., Works, p. 294. All references to Filmer’s works are to those appearing in the Laslett edition and will be cited as Laslett, ed., Works.
41. lbid., p. 285.
42. lbid., p. 286.
43. lbid., p. 81.
44. Allen, op. cit., p. 36.
45. From Laslett’s “Introduction” in Laslett, ed., Works, cit., p. 16.
46. Schochet, op. cit., p. 123.
47. Laslett, ed., Works, p. 82.
48. lbid.
49. lbid.
50. lbid., p. 225.
51. lbid., p. 287.
52. Ibid.
53. Ibid., p.211.
54. Ibid., p. 277. Emphasis added.
55. Robbins, op. cit., p. 170.
56. Laslett, ed., Works, p. 254.
57. Ibid., p. 259.
58. Ibid., p. 300.
59. lbid., p. 297.
60. From Laslett’s Introduction, Works, p. 31.
61. Schochet, op. cit., p. 260.
62. Ibid., p. 261, citing Locke’s Second Treatise, sections 117 and also sections 95, 112, 119-121, 192, 197, 198. Note all references to Locke’s Second Treatise will refer to Peter Laslett, ed., Two Treatises of Government (Cambridge: At the University Press, 1960). Citations will not be by page number but rather to sections. Hence, Laslett, ed., Locke, II, 117 refers to section 117 of the Second Treatise.
63. John Dunn, The Political Thought of John Locke (Cambridge: At the University Press, 1969), p. 131.
64. Ibid., p. 133.
65. Ibid., p. 131.
66. Gordon J. Schochet, ed., Life, Liberty, and Property: Essays on Locke’s Political Ideas (Belmont, Calif.: Wadsworth Publishing Co., 1971), p. 8. Schochet in his Introduction makes the point that Locke distinguished between expressly consenting to membership in political society and mere presence, or tacit consent.
67. Laslett, ed., Locke, II, 119.
68. Ibid., II, 120.
69. Ibid.
70. Dunn, op. cit., p. 140.
71. Laslett, ed., Locke. II, 121.
72. Dunn, op. cit., p. 133, citing Laslett, ed., Locke, II, 115, 116, and 121. This borders on a problem Filmer raised, which is how a person can commit himself to citizenship for life. Is it possible that once express consent is given, it can never be withdrawn?
73. Laslett, ed., Locke, II, 117.
74. Ibid., II, 118.
75. Corpus Juris, Vol. 11 (New York: American Law Book Co., 1917), pp. 783 and 787 under reference “Citizens.”
76. Dunn, op. cit., p. 137 citing Sir William Holdsworth, A History of English Law, Vol. 9, 3rd ed. (London: Methuen & Co., 1944), pp. 84, 86.
77. Even today, governments jealously guard the right of emigration and are concerned about the related loss of tax revenues that emigration entails. For example, the United States Internal Revenue Code, Sections 877 and 2107, did (and may still) provide that anyone who renounced U.S. citizenship with the purpose of tax avoidance would still be responsible for paying taxes to the U.S. government for ten years after such renunciation. As one commentator put it: “The United States government deems citizenship a privilege to be matched by the burden of Taxation.” Lloyd Shefsky and Lee Barbkoff, “Taxation and Emigration.” Tax Haven Review 2 (1975):10.
78. P. H. Partridge, Consent and Concensus (New York: Praeger, 1971), p. 22.
79. Schochet, op. cit., p. 261.
80. Laslen, ed., Locke. II, 16.
81. Ibid., II, 95.
82. Ibid., II, 98.
83. Ibid., II, 99.
84. Ibid., II, 138.
85. Ibid., II, 140.
86. John Dunn, Political Obligation in Its Historical Context (Cambridge: Cambridge University Press, 1980), p. 68.
87. Ibid. Dunn at footnote 35, p. 314, cites from Molyneux’s correspondence with Locke: “How justly they can bind us without our consent and representives, I leave the author of the Two Treatises of Government to consider.”
88. The Dictionary of National Biography, vol. 13 (London: Oxford University Press, 1967-1968), p.587.
89. Ibid., which claims that this is a false belief. See H. F. Kearney, “The Political Background to English Mercantilism 1695-1700,” Economic History Review 2 (1958-1959, 2nd series) at p. 491 for the statement that the book was condemned to be burned.
90. Robert Livingston Schuyler, ed., Josiah Tucker: A Selection from His Economic and Political Writings (New York: Columbia University Press, 1931). pp. 416-17. Tucker in A Treatise Concerning Civil Government (London: T. Caldwell, 1781) cites this and the next passage as being from pp. 113 and 169 of Molyneux’s book. For reprint of these passages, see also Carl Watner, “The Proprietary Theory of Justice in the Libertarian Tradition”, Journal of Libertarian Studies 6 (1982):289-316, at 301-2.
91. Smith, op. cit., p. 222.
92. Schuyler, op. cit., p. 416. .
93. Dunn, Political Obligation, pp. 68-69.
94. Ibid., p. 69.
95. Herbert W. Schneider, ed., Adam Smith’s Moral and Political Philosophy (New York: Hafner Publishing Co., 1948), p. 289, from Adam Smith’s “Lectures on Justice, Police, Revenue, and Arms,” Part I, Division I, Section I.
96. Henry Aiken, ed., Hume’s Moral and Political Philosophy (New York: Hafner Publishing Co., 1948), p. 359, from David Hume’s essay “Of The Original Contract.”
97. Ibid., p. 363.
98. Ibid., p. 365.
99. J. W. Gough, The Social Contract, 2nd ed. (Oxford: At the Clarendon Press, 1957), p. 139.
100. George Smith, op. cit., p. 224.
101. Schuyler, ed., op. cit., p. 35, citing p. 435.
102. Ibid., p. 35.
103. Ibid., p. 41.
104. Ibid., citing p. 378.
105. Ibid., p. 41.
106. Apparently Josiah Tucker did not want to be associated with Filmer as a defender of the divine right of kings. Undoubtedly Tucker wanted to be free of any claim that his argument and that of Filmer were similar. For the one reference by Tucker to Filmer, see ibid., pp. 450-52.
107. Ibid., p. 452.
108. J. W. Gough, John Locke’s Political Philosophy (Oxford: At the Clarendon Press, 1951), p. 90. Locke would probably have been prepared to “allow taxation to be levied by decision of a majority,” but this is as far as he would have gone. “He would have required strictly individual consent to justify any other kind of interference with private property.”
109. Schuyler, ed., op. cit., p. 444.
110. Ibid., p. 459.
111. Ibid., p. 460.
112. Ibid.
113. Ibid., p. 479.
114. Ibid., p. 412.
115. Ibid., p. 452.
116. Ibid., p. 480.
117. Ibid.
118. Walter Harding, ed., The Variorum Civil Disobedience by Henry David Thoreau (New York: Twayne Publishers, 1967), p. 61.
119. Ibid., p. 45, from “The Essay on Civil Disobedience.”
120. Carl Watner, ed., A Voluntary Political Government. pp. 40, 83.
121. Charles Shively, ed., The Collected Works of Lysander Spooner (Weston, Mass.: M & S Press, 1971), from “An Essay on Trial by Jury” (1852) in The Collected Works, vol. 2, pp. 222-23.
122. Spooner, No Treason, No.1 (1867), in Ibid., vol. 1, pp. 10-11. 123. Spooner, No Treason. No. 2 (1867), in Ibid., vol. 1, p. 13.
124. Charles Shively, Introduction to Lysander Spooner, No Treason, No. 6, “The Constitution of No Authority” (1870), in Ibid., vol. 1, p. 3.
125. Spooner, No Treason, No. 6, in Ibid., vol. 1, p. 59.
126. Dunn, Political Obligation. op. cit., p. 43.
127. A. F. Pollard, The Evolution of Parliament (New York: Longman’s, Green & Co., 1920), p.143.
128. Gough, Locke’s Political Philosophy, op. cit., p. 49.
129. Ibid., p. 58.
130. Ibid.
131. Watner, “Proprietary Theory,” op. cit., p. 304, citing George Smith, op. cit., p. 224. 132. Quentin Skinner, op. cit., Vol. II, p. 320.
133. Richard Schlatter, Richard Baxter and Puritan Politics (New Brunswick: Rutgers University Press, 1957), p. 39, citing from Baxter’s Second Part of the Nonconformists Plea for Peace (1680), pp. 54-55.
134. Patrick Riley, “How Coherent is the Socia1 Contract Tradition?” Journal of the History of Ideas 34 (1973):543-62, at 543. His reference however is to the term “voluntarism,” not voluntaryism.
135. Dunn, Political Obligation. op. cit., p. 48.
136. Ibid., p. 63.
137. J.W. Allen, op.cit., p.42.
138. C. W. Cassinelli, “The ‘Consent’ of the Governed”, Western Political Quarterly 12 (1959):391-409, at 398.
139. Watner, “Proprietary Theory,” op. cit., p. 303, referring to this as a point made by George Smith.