Liberty Matters

Consent, Contract, and the Blood of Tyrants

There are three questions I want to take up.
  1. Are existing states justified by consent?
  2. Could a large state be justified by consent, even in principle?
  3. Can any “contract” with more than two parties be justified by consent?
Let me begin by thanking Sheldon Richman, who mentioned this essay by Charles Johnson, which I had not seen:  “Can Anybody Ever Consent to the State?[34]
I think that Question #1, above, is easily disposed of:  No.  That doesn’t mean that political authority cannot be justified, of course.  But it means that consent theories, including tacit-consent theories, are at best a mythological “creation story” that we tell children.
On Question #2, the Johnson essay is both careful and persuasive.  And it goes a long way toward answering the question—No—though I do think the argument could have been strengthened by crediting Anthony de Jasay with making essentially the same argument in The State (Liberty Fund 1985).  Nonetheless, the Johnson piece is worth reading, and I commend it to you.
On Question #3:  This is the last stand of the Buchananite, and it is where my prepared defenses are dug in.  As we have discussed repeatedly in earlier parts of this exchange, the core question is whether a group can bind itself, by consent, to be the subject of coercion by the group. When I offer examples—clubs, homeowners associations, partnerships with written bylaws—the response I get is, “Oh, but those aren’t states.”
I think that the distinction being drawn is not useful.  And I try to get at it in the table below.  The table actually derives from a verbal exchange Russ Robert and I had in this episode of EconTalk:[35]
| Unconsented (involuntary)      | Consented (voluntary) Binary Contracts      | Consented (voluntary) Group Contracts
| State (coercive)                         | Universal                                                        | Undefined Justification, Coercion                 | Can These Exist?
| Private (voluntary)                    | Hobbesian State of Nature                         | Usual Market Transactions                           | Buchanan’s Contractarian Organizations
The common distinction is between state (coercive) and private (voluntary) institutions.  But this is question-begging, on both sides.  It is not true that “our only choice” is between a coercive, imposed state and the state of nature, as the “unconsented” column would suggest.  But that is how my colleagues on the Left usually pose the point:  without a State, there would be chaos!
On the other hand, “my” side usually insists that the only choice is the second column, where only consent to binary contracts is allowed.  Unsurprisingly, no state can withstand this requirement, so all collective institutions are unjustified and therefore coercive.  This is likewise question-begging.
The question is whether collective institutions can be combined with consent.  That is, a group agrees to constitute itself, and agrees (actually consents, with full information) to a set of rules for deciding (by a voting procedure or some other collective mechanism) and for entry and exit of members.  These are not market agreements, which is why the journal Public Choice was originally called Papers in Non-Market Decision-Making.
Most people readily concede that “private” voluntary organizations exist.  But we run close to tautology when we say that those things cannot be “state” organizations.  If the reason you believe this is that we all just know that states have to be coercive, then it is hard to have a discussion.
The alternative would be that states can be consensual, voluntary organizations, though no existing state is organized around those principles.  Thomas Jefferson, it appears, thought the state could be consensual, and that in fact such consent should be sought, and obtained, with each new generation.  In his (in)famous letter to William Stephens Smith (November 1787), Jefferson is reacting—from distant Paris—to seeing for the first time the draft of the “new” Constitution of the United States, the replacement for the Articles of Confederation.  And of course he knew of Shay’s Rebellion, which had occurred in Massachusetts from August 1786 through June of 1787.  I quote at length:[36]
I do not know whether it is to yourself or Mr. Adams I am to give my thanks for the copy of the new constitution.... There are very good articles in it: & very bad. I do not know which preponderate. What we have lately read in the history of Holland, in the chapter on the Stadtholder, would have sufficed to set me against a chief magistrate eligible for a long duration, if I had ever been disposed towards one: & what we have always read of the elections of Polish kings should have forever excluded the idea of one continuable for life. Wonderful is the effect of impudent & persevering lying. The British ministry have so long hired their gazetteers to repeat and model into every form lies about our being in anarchy, that the world has at length believed them, the English nation has believed them, the ministers themselves have come to believe them, & what is more wonderful, we have believed them ourselves. Yet where does this anarchy exist? Where did it ever exist, except in the single instance of Massachusetts? And can history produce an instance of rebellion so honourably conducted? I say nothing of it’s motives. They were founded in ignorance, not wickedness. God forbid we should ever be 20 years without such a rebellion. The people cannot be all, & always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. We have had 13 states independent 11 years. There has been one rebellion. That comes to one rebellion in a century & a half for each state. What country before ever existed a century & half without a rebellion? & what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon & pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is it’s natural manure. Our Convention has been too much impressed by the insurrection of Massachusetts: and in the spur of the moment they are setting up a kite to keep the hen-yard in order. I hope in God this article* will be rectified before the new constitution is accepted.
This is a remarkable passage.  The * above refers to Article II, which creates a single Executive, the President.  Jefferson’s concerns about this “chief magistrate eligible for a long duration” were apparently allayed, because he himself served as president for eight years (1801-1809).
I finish, then, with a question, rather than a conclusion:  Is it possible that a state could be consistent with the principles of voluntary contract, without being in a condition of continual violent revolution?
[34.] Charles Johnson, "Can anybody ever consent to the State?," Rad Geek People’s Daily, 8 January 2009 <>.
[35.] Michael Munger on Choosing in Groups, Econlib, Feb. 23, 2015 <>.
[36.] Jefferson's letter to William Stephens Smith (Paris, 13 November 1787) in The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 5. </titles/802#Jefferson_0054-05_433>.