Secession and the Consent of the Governed February 22, 2008Posted by federalist in Federalism, Government, Natural Rights.
With Kosovo declaring its independence it’s a good time to ponder the perennial movements for secession around the world. How can a government legitimately bind those who have not given their consent to be governed? A good friend recently pointed me to Lysander Spooner’s 1867 essay, “No Treason” — required reading for all discussion of natural law and just government.
Spooner’s thesis is that we are not traitors for refusing to submit to a government to which we did not pledge allegiance, or with which we have no contract. He argues at length that our natural rights to life, liberty, and property cannot be infringed by a government unless we have individually and explicitly agreed to join it. I.e., “We the People” cannot claim the consent of those who do not affirmatively sign on to that Body Politic, nor can it exercise just dominion over those who do not participate.
[T]he whole Revolution turned upon, asserted, and, in theory, established, the right of each and every man, at his discretion, to release himself from the support of the government under which he had lived. And this principle was asserted, not as a right peculiar to themselves, or to that time, or as applicable only to the government then existing; but as a universal right of all men, at all times, and under all circumstances.
One essential of a free government is that it rest wholly on voluntary support. And one certain proof that a government is not free, is that it coerces more or less persons to support it, against their will. All governments, the worst on earth, and the most tyrannical on earth, are free governments to that portion of the people who voluntarily support them. And all governments though the best on earth in other respects — are nevertheless tyrannies to that portion of the people — whether few or many — who are compelled to support them against their will.
His reasoning suggests a test for legitimate government: Can it survive if individuals have an ability to secede, or if it cannot coerce people to join? Clearly our present government would collapse if individuals were allowed to secede. However I believe our federal government as constituted could survive. Our goal, then, should be to return to a government that people would voluntarily join.
NB: The fact that many people participate in our present government does not legitimate it. Spooner warned,
[I]n the case of individuals, their actual voting is not to be taken as proof of consent, even for the time being. On the contrary, it is to be considered that, without his consent having even been asked a man finds himself environed by a government that he cannot resist; a government that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments. He sees, too, that other men practice this tyranny over him by the use of the ballot. He sees further, that, if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. In short, he finds himself, without his consent, so situated that, if he use the ballot, he may become a master; if he does not use it, he must become a slave. And he has no other alternative than these two. In self-defence, he attempts the former. His case is analogous to that of a man who has been forced into battle, where he must either kill others, or be killed himself. Because, to save his own life in battle, a man takes the lives of his opponents, it is not to be inferred that the battle is one of his own choosing. Neither in contests with the ballot — which is a mere substitute for a bullet — because, as his only chance of self- preservation, a man uses a ballot, is it to be inferred that the contest is one into which he voluntarily entered; that he voluntarily set up all his own natural rights, as a stake against those of others, to be lost or won by the mere power of numbers. On the contrary, it is to be considered that, in an exigency into which he had been forced by others, and in which no other means of self-defence offered, he, as a matter of necessity, used the only one that was left to him.
Doubtless the most miserable of men, under the most oppressive government in the world, if allowed the ballot, would use it, if they could see any chance of thereby meliorating their condition. But it would not, therefore, be a legitimate inference that the government itself, that crushes them, was one which they had voluntarily set up, or even consented to. Therefore, a man’s voting under the Constitution of the United States, is not to be taken as evidence that he ever freely assented to the Constitution, even for the time being. Consequently we have no proof that any very large portion, even of the actual voters of the United States, ever really and voluntarily consented to the Constitution, even for the time being. Nor can we ever have such proof, until every man is left perfectly free to consent, or not, without thereby subjecting himself or his property to be disturbed or injured by others.”