Contested Ideas About Consent

One of the challenging things about studying popular constitutionalism is that theories of power, community, and tactics can be all jumbled together.

For instance, from what I can gather, Cliven Bundy appears to be a rancher who holds a strong, individualist view of property rights and espouses a theory of government in which the local somehow trumps the national (and likely the state as well).  Tactically, he favors the use of private force in defense of constitutional rights and powers (he also believes that he is entitled to the assistance of local and state authorities to resist the federal government).  For now, his statements justifying the use of force seem to be limited to repelling invasions of property (his cattle, money) and personal security (his body, the safety of his family), so they can be plausibly defended on self-defense grounds (in natural law or other ethical terms, not based on statute or a written constitution).  His vague call for a "range war" muddies his claim to principled use of extralegal tactics and opens him up to charges that he is advocating organized violence against the state, so you can bet his next words and actions will be carefully scrutinized (recall that John Brown was tried for insurrection, and black nationalists were often accused of such crimes).

What's harder to figure out is Bundy's theory of consent.  Every popular constitutionalist must present a coherent theory of consent to rebut arguments that simple lawlessness is being advocated.  Secessionists favored the "compact theory" of consent, which holds that each state agreed to the formation of the U.S. Constitution and that each state could withdraw its consent.  Abraham Lincoln and defenders of the Union rejected this approach, saying that the people in the several states gave their consent and that only the people as a whole could dissolve the bonds of political community.

John Brown argued that groups of Americans (slaves, freedmen, and abolitionists) joined by their conviction and shared tragedy could disaffiliate from the existing form of government without committing treason.  From there, group-based theories of consent flourished.  Modern black nationalists and white separatists argue that racial or ethnic identity provides the basis for giving or withdrawing consent.  Typically, disgruntled Americans signal their disaffiliation through a public act: meeting in convention and signing a public declaration.

What makes sovereign citizens and their ilk different is that they often argue that each individual has the power to withhold the consent of the governed. For many observers, this is a theory of consent that descends into anarchy.  There is also a more selective, and sometimes mysterious, quality to the extent of their disaffiliation. Often, such figures "declare independence" when pressed, during criminal trials or litigation over taxes or property rights. Others, without any prompting, file documents in traditional government offices announcing their unorthodox legal views, sometimes over and over again.

Bundy has said he "respect[s] the federal government" but also that it "doesn't have its place in the state of Nevada . . . and Clark County, and that's where my ranch is.  The federal government has no power and no ownership of this land." Unless someone sees an open and notorious act of disaffiliation from the federal government, at this point it looks like he is engaged in selective (issue by issue?) rejection of jurisdiction, backed by an account of political structure that is clearly subversive but not fully implemented.

The task of ascertaining one's constitutional theory is further complicated when more mainstream figures start using the language of popular sovereignty.  It can be hard to figure out how much an elected official believes and how much the official is simply catering to attitudes that are perceived to be widely shared by constituents.  See, for example, this candidate for Governor of South Dakota, who favors state nullification of unjust federal laws, admires Bundy, and shares his belief that sheriffs are the highest law enforcement officials in the land.  Lora Hubbel plainly has not disaffiliated from state government, holds radical localist views of government, supports extralegal tactics, and holds the federal government in antipathy (but it's unclear whether she believes she owes allegiance to the U.S. government).

So, the next time you hear a political aspirant, activist, or lawyer deploy arguments about popular sovereignty, ask that person: (1) what is the basis for making such claims; (2) what tactics are justified; and (3) to what government(s), exactly, does he or she owe allegiance?


Cross-posted at Concurring Opinions.