May 11th, 2016

Sex and the State: An Analysis of Consent

One of the most fundamental aspects of a legitimate government is having the consent of the governed—a point made clear in the Declaration of Independence. But you and I have never had a meaningful opportunity to consent to being ruled by the state.

Proponents of the elusive and undefined “social contract theory” concoct all sorts of mind-bending ideas to justify the plainly obvious fact that not all of the state’s subjects have provided consent. While much has been written in response to these ideas, it may be useful to analyze their arguments by substituting political rule for a situation in which every sane person agrees that consent is required: sexual intercourse.

We are often told that explicit consent to be governed is not necessary or practical, and that tacit consent is sufficient—as if our unwillingness to abandon our home and distance ourselves from a certain group of elected officials is a signal that we consent to their exercise of power over us. This is like saying rape is fine so long as the woman fails to flee her abuser—an obviously preposterous position to take.

It is also claimed that participation in the process of government constitutes consent—that voting, for example, is an indicator of consent. Lysander Spooner famously demolished this claim, noting that not everybody who is governed can vote, not everybody who can vote does, and that many of those who do vote are acting out of self-defense with no intention of giving consent to the entire affair. Those who advance this flawed argument might similarly claim that a woman who agrees to go out with a man consents to whatever he might choose to do to her as the night progresses. We shudder at the thought, and yet it’s that thought that serves as the foundation of statism.

Others have argued that unanimous consent is impractical or, as John Locke said, “next [to] impossible ever to be had.” Thus, rational creatures must be governed by a mere majority vote. Consent, then, is not of the governed, but of the majority of those who participate in the government’s process. This is an argument of convenience, not actual consent. It’s akin to arguing that a woman’s consent to sexual relations some of the time is approval for doing it at any time—or, worse, that the consent of some women is sufficient to assume that all women consent to intercourse with a man. Inconvenience for an individual or government does not justify circumventing actual consent.

Imagine, however, that consent to be governed was somehow at one point given. Can it be withdrawn? Or does the government set the terms and effectively disregard any revocation of consent? Would we expect that a woman who in the past consented to intercourse with a lover forever be forced into a sexual relationship with him in perpetuity?

Moving on from the nature of consent, we must address the question of what, exactly, we are consenting to. Are there terms and conditions anywhere written? In cases of an actual contract, the agreement is listed out in detail so that all parties are fully informed. No such list exists for the state; we supposedly consent to whatever is done by those in power, going so far as to bestow their majoritarian mandates with the sacrosanct label of “law.” This conjures up an image of Warren Jeffs making young women submit to his every whim, wrapping his sexual deviance in the color of religious authority. His harem didn’t know what they were in for—they simply knew that they must obey.

This takes us to the final point: why should we consent? Just as we might advise a battered wife to deny the sexual advances of her predatory partner, we should withhold consent from a group of men—call it a government—that imprison, steal from, and kill innocent people. We, the governed, have not consented; no such opportunity has been provided us. Our support for the state is a false presumption cloaking it in an aura of authority that does not actually exist.

“Yes means yes” has become the mantra of those fighting against sexual abuse by aggressors. The inverse implication is equally important: no means no. The state’s lack of consent from those who are governed by it means, quite simply, that the very institution operates outside the boundaries of law and morality. It is effectively a political rapist.

18 Responses to “Sex and the State: An Analysis of Consent”

  1. John Williams
    May 11, 2016 at 4:38 pm #

    It’s a nice analogy, but it does nothing to suggest a solution to the problem it proposes. How do we give consent, and what are we consenting to? Does enjoying the protection of the state from birth to age 18 put us in a position were we should owe implied consent unless actively withdrawn?

    What are the implications of refusing consent? In medieval times, refusal to consent meant being declared an outlaw. The state withdraws its protections of life, liberty, and property from you, and no one is punished for taking them from you.

  2. Cari Clark
    May 12, 2016 at 5:58 am #

    So what is the alternative to the implied consent we are giving by not fighting against, or leaving, the state? At some point we have to agree that a particular level of government is necessary, in order that we may enjoy our life, have some degree of liberty (by not having to protect ourselves against anarchy, or simply having public roads to travel on), and be able to pursue happiness (and the state generally keeps others’ pursuit of happiness from infringing on ours).

    Not that the state is entirely worthy of my consent. I agree with you there, but as futile as it sometimes seems, we do have legal ways of objecting to and withdrawing our implied consent from time to time.

  3. Joe Evans
    May 12, 2016 at 10:17 am #

    I agree with John Williams and Cari Clark: What is the solution to the problem you describe? What is the alternative? If you know of a better way, I would truly like to know what you think it is.

  4. saxoclese
    May 14, 2016 at 11:24 am #

    This discussion reminds me of the rooster Chanticleer who believed that if he didn’t crow and give the sun permission each morning that it wouldn’t rise and provide warmth and light to all the creatures.

    The analogy is of course if a libertarian failed to give his “consent” to the various levels of government to “govern” him, that the sun would still come up and those levels of government would continue to operate. An exaggerated idea of one’s “self importance” simply does not make it so.

    A more practical way to describe the relationship between the government and those who are “governed” is that the vast majority of of citizens choose to “accept” the laws and rules that govern society. People don’t need to like or agree with every law, rule, or policy to accept them. Those who cannot or will not accept governing laws and principles are free to ignore them and do as they please, but by the same token they will eventually be forced to accept the consequences.

    Each one of us as an individual gives up some personal freedoms like driving as fast as we like, and not having to pay taxes because we realize that these laws and regulations benefit society as a whole, and as a part of that society we benefit as well. When those laws and regulations become onerous in our view, we can protest and work to elect those to government positions who better represent our views.

    Libertarians seem to want complete freedom and autonomy from governance, but still enjoy all of the benefits of a society based upon a system of laws and representative government. Unfortunately, they simply can’t have it both ways.

  5. Clos
    May 15, 2016 at 2:32 pm #

    To answer the comments for myself, this lack of consent and violation of individual rights means the majority and governments in general should tread lightly. Limited government lessens the amount of harm.

    Is it perfect? No, but likewise just because wars cause collateral damage doesn’t mean we ramp up the bombing of schools just because it’s expedient. Not at least if we want to claim any moral authority.

    So first and foremost, those violating others rights can’t claim the moral high ground. The most they can claim is the power of force. They have the force of the majority. Dictators have the force of the military.

  6. Taiwanguy
    May 15, 2016 at 9:40 pm #

    @saxoclese

    “Libertarians seem to want complete freedom and autonomy from governance, but still enjoy all of the benefits of a society based upon a system of laws and representative government. Unfortunately, they simply can’t have it both ways.”

    You are assuming that the state’s influence on laws and society is a beneficial one. That is quite the assumption.

    Libertarians want freedom BECAUSE they believe that a society formed with individual liberty as its foundation would be vastly superior to one in which we turn over increasingly more power and authority to a monopolistic state that has proved over and over to NOT have the interests of its constituents as its primary priority.

  7. saxoclese
    May 15, 2016 at 10:17 pm #

    @Taiwanguy Exactly what individual liberties don’t you currently have in the United States of America that you would want to have in your “libertarian utopia”. Serious question. Please be specific.

  8. Taiwanguy
    May 16, 2016 at 8:23 am #

    @saxoclese

    The freedom to not have the fruits of my labor pay for wars, torture, murder. The freedom to not be forced to buy certain insurance if I don’t want to. The freedom to sell certain services that I would like to provide but cannot because I would have to pay ridiculous fees to obtain the legal licensing necessary. The freedom to not pay for a large, useless and expensive wall between the U.S. and Mexico. The freedom to not have records of my communications collected and kept by the gov’t. …….. I could go on and on.

    And please, no one claims that a libertarian society would be a “utopia.” Just that it would offer superior solutions and foster prosperity better than a society that requires compulsion by a monopolistic state.

  9. saxoclese
    May 16, 2016 at 5:06 pm #

    I too would like to earmark where my Federal taxes go as well, but I realize that if there were no taxation that would eliminate all of the essential services that make society as we know it exist.

    Licensing in certain trades and professions helps to maintain standards that are designed to protect people. It is a small price to pay. To give everyone free range with no standards or oversight would be catastrophic.

    I agree more needs to be done to rein in government intrusion into private communications, but by the same token I can accept a reasonable amount in the interest of national security. My point is that if libertarian ideals were incorporated to their extreme, our nation would be a much less civilized and secure place to live.

  10. Taiwanguy
    May 16, 2016 at 7:51 pm #

    Lot’s of assumptions. Zero evidence. Do you actually believe that a free people would not be industrious enough to provide essential services without gov’t? Do you actually believe that licensing in certain trades performs its function to protect us or is it actually denying us access to things that would make our lives better?

    Did you know that it is illegal for me to go to the cattle ranch nearby and purchase freshly butchered beef? He could be put in jail for selling it to me and I could be arrested for buying it…But wait for that beef to be processed through disgusting gov’t regulated facilities owned by massive agricultural conglomerates and suddenly that meat becomes “safe.” Sometimes these meat processing plants are international, meaning that US grown beef gets sent as far away as China to be processed and then sent back to the US for consumption. This is “safer” than me having the freedom to engage in voluntary transactions with local ranchers/butchers? lol… People assume so much when it comes to our benevolent gov’t.

  11. saxoclese
    May 17, 2016 at 10:32 am #

    Do you honestly believe “the people” could perform the functions of the Center for Disease Control, the Food and Drug Administration, the Federal Aeronautics Agency and the Occupational Safety and Health Administration? There are third world countries where there is no licensing or government oversight over those who perform all kinds of services to the population. I for one would not want to live without those protections.

    Your friend’s beef may be safe, but what about the ranch down the road or across state? If the area where the beef is butchered if rife with pathogens, what recourse do you have when a member of your family gets sick or dies? At lease when my wife gets meat from the local grocery, we know that it is cleared by the Department of Agriculture’s Food Safety and Inspection Service.

  12. Iimx
    May 21, 2016 at 6:36 pm #

    Sax, Although I want some sort of watch dog for my safety. It appears that sometimes the regulations just set a minimal bar to which producers aim for and no more. And believe me the bar is set very low for a number of products. I completely avoid animal products for that reason and some other ones. But the same is true for clothing, housing, automobiles etc… I feel like I haven’t gotten my money worth on a number of products. But it might have been worse without some type of regulation, or is it possible that things might be better without a government agency watching out, and periodically checking production of various goods? This article seems to suggest that the government only &*^@S its citizens, making the comparison with sex….

  13. Jes
    June 16, 2016 at 6:36 am #

    @ saxoclese: I would say that no, the CDC and FDA are not necessary. Their functions could be provided by private companies. Electronics does this already – they are self regulating. Many of our electronics are stamped with “UL,” (Underwriters Laboratories) which is a private company that checks these products to make sure they won’t blow up, catch fire, and also established standards for safety for them, etc. etc. There could be companies that do the same things for medications and food – think “Gephardt Approved” idea for a wide varieties of industries. Certainly I would pay a little more for a medication (which would likely be WAY cheaper than what things cost after going through the FDA) for a stamp of approval from a company I could trust. I’m sure they would do a better job and also wouldn’t prevent people from using something new if they had no other options and wanted to try it nor would they be able to strong-arm people into things because they wouldn’t have elevated governmental status.

  14. Saxoclese
    June 17, 2016 at 9:33 am #

    In order for the function of the Center for Disease Control to be done by a private company that company would have to make a profit. Exactly how would that work?

  15. Iimx
    June 26, 2016 at 2:11 am #

    Jes, are you talking about certification agencies for Kosher, Vegan, gluten free etc…those exist, and yet some products may have multiple certifications. This is because people may have different reasons or concerns about a product. I don’t see how even multiple organizations could possibly replace the FDA. What would be the new certification which would replace the FDA?

    I don’t understand the LDS obsession with privatization, like that is going to be an automatic improvement in efficiency, quality, and or cost. There may be potential, but I don’t think its ‘automatic for the people’. I just think its weird to think of the United States as Not having any government at all, as I suspect that is what the LDS want. What is the end of this LDS desire?

  16. Jesse @ DisasterPrepClubs.org
    July 17, 2016 at 2:48 pm #

    Saxoclese,

    Just a point of clarification. There really are two kinds of people, those who trust government and see it as “We the People”, and those who distrust the government and see it as a potential danger to liberty.

    Your statements about the need for various government agencies clearly places you in the Trust-Government camp. Sadly, history shows us that governments rarely deserve the trust their citizens give them. For example, more people were murdered by their governments in the last 100 years than probably during all the wars in the rest of recorded history. Even our own US government has had trouble with a willingness to sacrifice the well-being of its own citizens, as evidenced by widespread cancer and leukemia among “down-winders”.

    The bottom-up Republic mentioned in my previous post would truly be a good example of your “We ARE the government” view. Sadly, we now have a top-down Republic based on the Golden Rule — He who has the gold, rules.

  17. Justin
    July 17, 2016 at 7:43 pm #

    Well maybe your mother should not have given birth to you. She, after all, should have known that you would not want to live in this nation, shouldn’t she? You can’t consent to be born and raised in a Republic even more than if I was born and raised in an Anarcho-capitalist area, or in other words “the wild wild west” I would not be able to consent to that either. You have to show your consent somehow and that is by voting with your feet. After all that is your most ultimate form of freedom, to live where you want to live and how you want to live. If you want to live in an area without rule of government or law, then move to Mexico. It’s not too far away but a whole other world.

  18. Lilli
    September 23, 2016 at 2:41 pm #

    As Christ taught, we should not trust anyone to be our leader, spiritual or political, except Him & God, because no one is perfect and everyone is easily wrong about many things while almost always thinking they are right.

    Even Joseph Smith understood that almost everyone will use unrighteous dominion once they receive any power over others.

    No mortal has ever been trustworthy or righteous enough to be trusted with power over others. For even the best can and usually do fall, especially when given power.

    But the natural man desires to have a King or Government or Prophet over him, because it’s easier than making decisions for themselves & governing one’s self.

    To not have leaders does not mean societies or groups would not have laws for their small communities and come together in agreement on things, but they would keep the power to themselves on who to ‘hire’ to do certain tasks for them or for the group, and the power would remain with the individuals (where it doesn’t get too out of hand), to decide when and who they hire to do what for them.

    Decisions & power must remain very personal, small & localized if the people and groups are going maintain true freedom.

    But such freedom has never been accomplished before in recorded history, for freedom can only be maintained by a truly righteous society that keeps Christ’s commandments, and such a society or even group of people has never been seen.

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