Constitution Lectures 1: The Non-Consent of the Governed (HD version)

Summary

The video script addresses the misconception that individuals must consent to the U.S. Constitution, arguing that it is not about restricting people but about limiting government power to preserve liberties. It refutes common consent arguments, such as tacit consent through residence or voting, and explains that the Constitution's legitimacy comes from its role in protecting rights, not from people's consent. It emphasizes the importance of evaluating government actions for constitutionality and legitimacy.

Takeaways

• 📜 The script addresses a growing issue of misunderstanding the Constitution and its implications on governance and individual rights.
• 🗳️ It criticizes the notion of 'tacit consent' to the Constitution, arguing that simply living in a country does not equate to agreement with its laws.
• 👶 The script points out that most Americans are born into the system and have no initial choice about their citizenship or the government they are under.
• 💼 The high cost and difficulty of leaving one's country to express disagreement with the government is highlighted as a flaw in the tacit consent argument.
• 🏠 The idea that by living in America, one consents to potential loss of liberty, even though the country is known as the 'land of the free', is questioned.
• 👪 The script argues that true freedom should allow individuals to stay connected with their family, friends, and community without being forced to accept a government's actions.
• 🗣️ It challenges the idea that voting equates to consent, noting that non-voters and minors are still subject to laws they did not agree to.
• 🤔 The script questions the legitimacy of laws that restrict or inhibit people's rights, using the historical example of slavery to illustrate the point.
• 🛡️ It emphasizes that the Constitution's purpose is to limit government power and protect individual liberties, not to impose restrictions on the people.
• 🙅‍♂️ The argument that consent is given by receiving government benefits is refuted, stating that there must be a way to refuse these benefits to establish true consent.
• 🏛️ The script concludes that the legitimacy of the Constitution comes from its role in preserving rights, not from the consent of the governed, and that illegitimate parts of the Constitution should be challenged and changed.

Q & A

What is the main issue discussed in the transcript?

The main issue discussed is the misunderstanding of the Constitution and the problem of people and organizations taking unconstitutional positions while trying to defend it.

What is the title of the first lecture mentioned in the transcript?

The title of the first lecture is 'Non-Consent of the Governed.'

What is the basis for the Constitution according to the transcript?

The basis for the Constitution is the Declaration of Independence, which states that governments derive their powers from the consent of the governed.

What is the argument against the concept of tacit consent as discussed in the transcript?

The argument against tacit consent is that it assumes people consent to the government by remaining in the country, which is flawed because most Americans are born there and their choice of residence is not voluntary.

What are the problems with the 'love it or leave it' mentality mentioned in the transcript?

The problems include the fact that many Americans did not choose to live in the country, the high cost and difficulty of leaving, the emotional cost of leaving family and friends, and the logical inconsistency of applying this argument to any government, including tyrannies.

What is the alternative argument presented for consent to government through voting?

The alternative argument is that by voting, individuals consent to the government, accepting the outcome whether they are on the winning or losing side.

What is the flaw in the argument that consent is given through voting?

The flaw is that consent must be voluntary and there must be a way to express non-consent. If voting for any side or not voting at all is considered consent, then there is no way to express non-consent.

What is the argument that consent is inherited from the founders of the Constitution?

The argument is that since the system existed before we were born, we consent to it by not changing it, as the founders expressed their non-consent with the British government.

What is the problem with the argument that consent is given because of the benefits received from government?

The problem is that there is no way to refuse the benefits, and accepting benefits does not necessarily imply consent to pay for them or to all government actions.

What does the transcript suggest about the relationship between the Constitution and the people?

The transcript suggests that the Constitution does not apply to the people in the sense of restricting them; rather, it is there to restrict the government and preserve the people's liberty.

What is the final point made in the transcript about the legitimacy of the Constitution?

The final point is that the Constitution's legitimacy comes from its role in preserving the rights of the people and restricting the government, not from the fact of being in the Constitution itself.

Outlines

00:00

🤔 Questioning Consent to the Constitution

The speaker introduces a growing issue of misunderstanding the Constitution and the flawed attempts to defend it. They announce a series of lectures to address this, starting with the concept of 'Non-Consent of the Governed,' derived from the Declaration of Independence. The lecture challenges the idea that people consent to the Constitution by remaining in the country or by voting, arguing that true consent must be voluntary and that the Constitution does not inherently require individual consent. It critiques the notion of tacit consent, the economic and emotional costs of leaving the country as a form of dissent, and the flawed logic that consent is given by benefiting from government services or because the founding fathers established the system.

05:01

🏛 The True Purpose of the Constitution

This paragraph delves into the misconception that the Constitution applies to individuals and requires their consent. The speaker clarifies that the Constitution is designed to restrict government power and protect individual liberties, not to impose rules on citizens. They emphasize that the Constitution's legitimacy comes from its role in preserving rights, not from the consent of the governed. The speaker refutes the idea that receiving benefits from the government implies consent, highlighting the lack of an option to refuse these benefits. They also discuss the illegitimacy of parts of the Constitution that have restricted rights, such as slavery, and argue that the true consent lies with those who take an oath to uphold the Constitution, including government officials and military personnel.

10:05

📜 The Constitution's Legitimacy and Role in Governance

The final paragraph summarizes the Constitution's purpose and the source of its legitimacy. It reinforces the idea that the Constitution is not a document that bestows rights but rather one that recognizes and preserves pre-existing rights. The speaker calls for a critical evaluation of all government actions and laws, urging the audience to first ask if they are Constitutional and then if they are legitimate. The lecture concludes with a reminder to maintain strength and freedom, emphasizing the importance of understanding the Constitution's true intent and application in the context of governance and individual rights.

Keywords

💡Constitution

The Constitution refers to the fundamental principles or established precedents according to which a state or other organization is governed. In the context of the video, it is the U.S. Constitution that is being discussed, which is the supreme law of the United States. The video explores the idea of consent in relation to the Constitution, questioning whether individuals are truly bound by it if they did not explicitly agree to it.

💡Non-Consent of the Governed

This phrase is the title of the first lecture in the series and is a play on the concept of 'consent of the governed,' which is a principle from the Declaration of Independence. The video uses this term to challenge the idea that people have consented to the Constitution by living in the country or by participating in the political process.

💡Tacit Consent

Tacit consent is the implied consent to something without directly stating one's agreement. In the video, it is discussed as a means by which some argue that by remaining in the country, individuals have implicitly agreed to abide by the Constitution and the laws passed by Congress.

💡Opt-out

Opt-out refers to the opportunity to choose not to participate in or use something. The video mentions the concept of opting out in the context of the argument that by not leaving the country, individuals have consented to the government and its laws.

💡Duress

Duress is coercion or force that influences someone to do something against their will. In the video, the term is used to argue against the idea that paying taxes out of fear of punishment constitutes consent to the government's actions.

💡Legitimacy

Legitimacy in this context refers to the recognition of the legality or authority of something, such as a law or government action. The video discusses how parts of the Constitution that restrict people's rights can be considered illegitimate, even if they are part of the document.

💡Habeas Corpus

Habeas corpus is a legal principle that requires a person under arrest to be brought before a judge or into court. The video mentions the protection of habeas corpus as an example of a right that the Constitution is meant to preserve from government abuse.

💡Oath of Office

An oath of office is a formal declaration made by a person before assuming a position of public trust. The video explains that members of the government, from the President to local officials, take an oath to support the Constitution, which is their form of consent.

💡Slavery

Slavery is a system and condition in which one person is owned by another. The video uses the historical example of slavery to illustrate the point that something can be part of the Constitution and still be illegitimate, as it restricts the rights of individuals.

💡Legislature

A legislature is a deliberative assembly with the authority to make, amend, or repeal laws. The video discusses how legislators, by making laws that violate the Constitution, can be seen as acting illegitimately, violating their oath to uphold the Constitution.

💡Freedom

Freedom in this context refers to the power or right to act, speak, or think as one wants without hindrance. The video emphasizes that the purpose of the Constitution is to protect individual freedoms from government overreach.

Highlights

The Constitution's increasing misunderstanding in the country.

People and organizations defending the Constitution sometimes take unconstitutional positions.

Introduction of a series of lectures on the Constitution.

The concept of 'Non-Consent of the Governed' from the Declaration of Independence.

Questioning the existence of consent to the Constitution.

Lysander Spooner's historical argument against consent.

The flawed 'love it or leave it' mentality and its problems.

The impracticality of tacit consent through remaining in the country.

The high cost of leaving the country as a form of dissent.

The inability to refuse government benefits as a form of consent.

The Constitution's purpose to restrict government, not the people.

The illegitimacy of parts of the Constitution that restrict people's rights.

The historical context of slavery's illegitimacy despite Constitutional permission.

The oath of government officials as their consent to the Constitution.

The Constitution's role in preserving pre-existing rights, not granting them.

The criteria for evaluating government actions: Constitutionality and legitimacy.

Transcripts

So, I’ve noticed a problem in this country that’s only getting worse.

People just don’t understand the Constitution.

What’s worse, I’ve seen people and organizations trying to defend the Constitution,

and in some cases they end up taking unconstitutional positions

to fight the rare pieces of constitutional legislation that manage to come up.

This just can’t go on.

So I decided to make a series of lectures,

and I urge you to watch them all and disseminate them widely.

This first lecture I call the “Non-Consent of the Governed.”

This is for the people out there wondering,

“Why should I have to abide by the Constitution? I didn’t agree to it!”

The phrase derives from the Declaration of Independence

the founding document which is the basis for the Constitution.

In it, Jefferson says clearly that governments

derive their powers from the consent of the governed.

But did you consent to the Constitution?

Did you ever agree to it? Where is the consent?

This is what a lot of people are asking, and they’re hardly the first.

At least as far back as Lysander Spooner,

the argument against consent was made:

Should “consent of the governed” refer to active, unanimous consent

among every single person in the United States?

Obviously, that’s not gonna happen.

So others have come up with arguments for tacit consent.

One such argument might go like this:

“By remaining in the country, you agree to abide

by the Constitution and all laws passed by Congress.

Since you have the freedom to leave,

you have the freedom to opt-out,

and by not doing so you have consented to our present form of government.”

This is basically the “love it or leave it” mentality,

and there are a number of problems with it.

The first problem is simply that most Americans

have not made the decision to live here.

They’re born here, and their choice of where to live

is basically at the whim of their parents.

How can they be said to have consented to our government?

Of course, you could say that once they get old enough they could leave,

or they could run away, but that leads to a second problem.

It can be very expensive to leave the country,

not only in monetary terms, but in terms of time and effort.

It’s very difficult to uproot yourself from one place

and establish somewhere else.

And that’s assuming there was anywhere you go that was better.

But isn’t America the place where you’re supposed to go if you want to live free?

So, you can come here and live free,

but by living here you consent to have your liberty taken?

Another problem is that it requires giving up all ties

to family, friends, and everything else from your home.

That seems like a very high price to pay for freedom.

If you’re free, shouldn’t you be able to stay with your family

and friends, and the community you’re a part of?

And finally, you could apply this argument to any government, even a tyranny.

Should the Protestants have had to leave Britain

during the time Thomas More was Lord Chancellor?

By not leaving, did they consent to be arrested, tortured, and even killed?

There is absolutely nothing about the Tacit Consent argument

that stands up to any rational scrutiny.

Another argument, which is more limited,

says that one consents to government by voting.

It’s like a game: you agree to the rules

and the outcome even if you’re losing.

The most obvious problem is that even people who don’t vote

are subject to the law and the government.

The argument is that they have the option of voting, so it still counts.

But not everyone has the option of voting, such as people under 18.

However, let’s take a look at the case of those who do vote.

Have they consented to the government?

Even if they’re on the losing side, they should consent,

because if they were on the winning side they would

expect those who lost to consent as well, wouldn’t they?

The biggest problem here is that consent must be voluntary.

That means there must, at the very least, be a way of expressing non-consent,

an unwillingness to go along with it.

But if you consent by voting for the winning side,

and you consent by voting for the losing side,

and you consent by not voting at all,

how is there any way you don’t consent?

So, heads, you consent, tails, you consent,

if the coin lands on its edge, you consent,

and if you don’t flip the coin at all, you still consent.

It has also been said that we consent to the government,

because our founders consented for us long ago.

Since the system itself existed before we were born,

the system must be the default,

and we consent to the system by not changing it.

There is a certain logic to this one.

Our founders certainly expressed their non-consent

with the British government, overthrowing it

in favor of a new one. But there’s a big problem.

Duress is not consent. If someone robs you at gunpoint,

and you hand over your wallet,

have you consented to have your wallet taken?

Is it now a gift, and not theft? No.

Just because you chose not to resist the burglar

doesn’t mean you consent to his actions.

You can still call the police and demand his arrest.

The thief is not at all justified by your consent,

since it was under duress, under threat of force.

All government operates under threat of force.

If you pay your taxes because you are afraid of going to jail,

have you consented to paying the taxes?

Like the burglar example, this isn’t consent

because it’s done under threat of force.

Still another argument is that we owe our consent, because we receive benefits.

For example, everyone benefits through our national security,

since that makes us all safe from invaders.

Since we all gain that benefit, the consent is the price we pay for it.

But again, the problem here is that there’s no way to refuse.

If I take a good that I have produced, and force it on you,

are you obligated to pay me money for the good?

You must at the very least be able to refuse acceptance of the good

in order for me to say you owe me money for it.

Otherwise, gangsters would be justified in taking protection money.

Also, there is the problem of abuse.

Does consent to be protected by our military from invaders justify actions abroad?

Particularly actions many people have spoken out against,

such as the abuses of prisoners at Abu Grahib and Guantanamo Bay?

Not only that, but there may be disagreement about what benefits there should be.

If some people in a town think there should be a park,

and others think there shouldn’t, then is the park a valid benefit or not?

If the people who want the park win, how have the others consented

to have their tax money spent on such a service?

So, how does one consent to the Constitution?

How do you consent to a system of government operating

under the rules and restrictions imposed by the Constitution?

You don’t.

And you don’t have to.

Why? Because as surprising as it may sound,

the Constitution has nothing to do with you.

It does not apply to you in any way, shape, or form.

You might be horrified by that thought, but once you hear me explain,

I think you’ll see the elegant truth in this,

the entire idea behind how the Constitution is supposed to work to begin with.

As James Madison said,

“In all cases where a majority are united by a common interest or passion,

“the rights of the minority are in danger.”

Consent cannot be made by the majority

or by any of the other arguments we’ve discussed.

The consent of a thousand cannot abridge the rights of the one.

And this is precisely how the Constitution

can have legitimacy without unanimous consent:

it is not there to restrict the people or affect them in any way;

it is there to restrict the government and preserve the liberty of the people.

So the Constitution is not there to restrict the people.

You don’t have to worry about anything in the Constitution or the Bill of Rights.

If someone bursts into your home and starts preaching,

you get to throw him out, and you do not run afoul of the First Amendment

on either freedom of speech or freedom of religion.

This does not apply to you, only the government.

The government is restricted by the Constitution,

for the purpose of preserving the rights of the people.

The government cannot abuse habeas corpus,

inhibit freedom of speech or the press,

invade your home without a warrant, and so forth.

None of these things require your consent;

they are legitimate because they protect your rights

from abuse by the government.

The obvious corollary to this is,

any part of the Constitution that restricts the people,

or inhibits their rights, is illegitimate.

If you doubt that, then ask yourself this question:

Was slavery legitimate for over 170 years

when it was authorized by the Constitution?

Did it only suddenly become illegitimate

with the passage of the Thirteenth Amendment?

I think we all agree—I hope we all agree—that slavery was always illegitimate,

even as the Constitution permitted it.

This part of the Constitution always was illegitimate

since it inhibited the rights of the people instead of preserving them.

So where does the consent come in?

It comes in whenever someone is elected, or appointed,

or in any manner becomes a member of the governing bodies of people,

be it Federal, state, or local.

This is easily seen in the oath required

by all members of the government by Article VI.

They all consent, directly by taking this oath, to support the Constitution.

The President is specifically bound by an oath given in Article III.

Everyone—every member of Congress, every governor and legislator,

every judge and DA, every soldier and officer in the military,

every cop on the street, swears an oath to the Constitution.

When the President violates habeas corpus,

when legislators and governors make laws against the Constitution,

when the cop forces you to consent to a search without a warrant,

they are violating this oath, and it is an illegitimate act

precisely because this consent is violated.

This is the very basis of the Constitution:

The Constitution does not grant us rights.

We have the rights already.

The Constitution is there to preserve them

and keep the government of the people from abridging them.

So it’s not the fact of being in the Constitution that makes something legitimate.

The Constitution cannot bestow that status on anything.

Rather, it is things which are legitimate that are made part of the Constitution.

When it isn't, that part of the Constitution is illegitimate,

and needs to be dealt with, the way the illegitimate institution of slavery

was eliminated by the 13th Amendment.

So, by now you should have a good idea

of what the Constitution is and where it gets its legitimacy from.

Keep this in mind not only in future lectures,

but in every political issue, every political speech,

every word you hear out of every politician’s mouth.

And when you’re evaluating any law or action of government,

the first question that must always be asked is, “Is it Constitutional?”

And if it is, there’s still one more question to be asked:

“Is it legitimate?”

Until next time, stay strong and be free.