rationalskepticism.org

In my book Restoring the Lost Constitution, which is dedicated “to James Madison and Lysander Spooner,” I join with Spooner in rejecting these and other tacit consent arguments. I contended that though “genuine consent, were it to exist, could give rise to a duty of obedience, the conditions necessary for ‘We the People’ actually to consent to anything like the Constitutions or amendments thereto have never existed and could never exist.”[35] And yet, another of Spooner’s arguments in The Unconstitutionality of Slavery points the way to how a constitution that lacks genuine consent might nevertheless be legitimate.

The key move is to recognize that a constitution does not bind the people themselves; instead, a constitution is supposed to bind those who govern the people. To the extent that consent is relevant, each and every office holder takes an oath to obey the Constitution and thereby consents to its terms. So what matters is not whether a constitution was assented to by the people, but whether the laws that are imposed under its auspices bind the people in conscience to obedience.

In short, people need not consent to obey the law to be bound by it. Instead, a law can bind in conscience if it does not violate the rights of those on whom it is imposed—so their consent is unnecessary—and if it is necessary to protect the rights of others—so it is obligatory for the same reasons our rights are obligatory.