Prepared by: The New Jersey Center for Civic Education, Rutgers University
Grade Level: 6-8
Standard:
- 6.3.8.CivicsPR.2: Evaluate the effectiveness of the fundamental principles of the Constitution (i.e., consent of the governed, rule of law, federalism, limited government, separation of powers, checks and balances, and individual rights) in establishing a federal government that allows for growth and change over time.
Objectives: Students will be able to:
- Define and compare implicit and explicit consent.
- Explain how consent of the governed legitimizes government’s authority.
- Identify ways that citizens give implicit and explicit consent.
Definitions:
- Consent means that a person voluntarily and willfully agrees in response to another person's proposal.
- Express or explicit consent is consent given directly and overtly, either verbally or in writing. We give explicit consent to be married, to get health care, or sign to assume risks in potentially dangerous activities (skydiving, etc.).
- Implied or implicit consent is consent that can be reasonably inferred from our actions or by our inaction in relation to specific circumstances. We give implicit consent to law when we use crosswalks, stop at red lights and stop signs.
(For more information, see: https://www.law.cornell.edu/wex/consent)
Background: “Consent of the governed” refers to the idea that a government’s legitimacy and moral right to use state power is justified and lawful only when consented to by the people subject to its political power. Consent of the governed was an important element of Plato’s dialogue Crito (399 B.C.). In Crito, Socrates explains from prison that he understood the laws of his city-state and chose to stay as an adult. His choice to remain in the community created an obligation to obey the laws and accept punishment for their violation: “He who has experience of the manner in which we order justice and administer the State, and still remains, has entered into an implied contract.”
Express consent to social contracts figured more prominently in the 17th-century writings of Thomas Hobbes and John Locke. Hobbes argued in Leviathan (1651), that in the absence of rules, laws and government, man would use his liberty to create a condition of “perpetual war” where life would be “solitary, poor, nasty, brutish and short.” To avoid this condition, man would consent to a social contract, exchanging his liberty for the collective security provided by a powerful authoritarian which would rule by fear. (For more see: Thomas Hobbes and “Leviathan:” Ideas that Informed the American Founders, Part 25
Locke argued in his Second Treatise of Government (1689) that man is governed by reason, which teaches that “no one ought to harm another in their life, liberty or estate [property].” However, because man is motivated by self-interest as often as reason, these natural rights are insecure. Consequently, rights are best protected when people enter a social contract which expresses the consent of the people while making and enforcing laws to secure the rights. Locke portrays consent as a deliberate act. It requires political consent because, (a) every person is a free, equal, and sovereign individual and, (b) a free, equal, and sovereign individual cannot be subject to non-natural obligations. (For more see: John Locke and the State of Nature or John Locke, Natural Rights)
Explicit political consent of the governed was an important issue in the revolutionary era. In 1765 Parliament levied a tax on colonial paper products. The British assumed that the colonists were “virtually represented” and had thus consented to Parliament's stamp tax. For colonists, however, virtual representation made no sense. They had developed a belief in “actual representation”, or explicit consent to representation through voting. Since the colonists did not vote for members of Parliament, they could not possibly be represented there.
In the minds of the colonists, explicit political consent became a foundational element of legitimate government authority. “No Taxation without representation” became a rallying cry and principle extended to other issues and rights like property and individual liberty. The social contract embedded in the Declaration of Independence crystalized this principle, asserting that “governments are instituted among men, deriving their just power from the consent of the governed.” (For more information, see: The Consent of the Governed | Constitution Center)
Oaths of Allegiance: A naturalized citizen is required to take an oath of allegiance to the United States, which is an explicit agreement or act of consent administered by the government of the United States. The Immigration and Nationality Act (INA) requires that applicants for citizenship shall take an oath that incorporates the following:
- Support and defend the Constitution and laws of the United States against all enemies, foreign and domestic;
- Renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the applicant was before a subject or citizen;
- Bear true faith and allegiance to the United States by:
- Bearing arms on behalf of the United States when required by the law; or
- Performing noncombatant service in the Armed Forces of the United States when required by the law; or
- Perform work of national importance under civilian direction when required by the law
Activity: Class Discussion - Inform students that, unlike naturalized citizens, natural born citizens are not required to take an oath of allegiance by law. Then engage students in a discussion based upon the following questions:
- Does the reciting of the Pledge of Allegiance (to the Flag) in school constitute an explicit act of consent administered by the government of the United States? (Consideration for student responses in italics below)
- The Pledge of Allegiance is viewed as an expression of loyalty to the government, rather than explicit consent.
- In West Virginia Board Of Ed. v. Barnette (1943) the Supreme Court made clear that reciting the Pledge of Allegiance was a voluntary action and under the First Amendment free speech clause, students could not be compelled to recite the Pledge of Allegiance. For more see: West Virginia State Board of Education v. BarnetteOyez https://www.oyez.org › cases)
- How do citizens born in the United States implicitly give their political consent to be governed by the government of the United States? ( (Consideration for student responses in italics below)
- By using the services offered by the government.
- By adhering to the rules and laws, such as paying taxes.
- By participating in political discussions and actions (voting, writing letters to the government, meeting with elected officials.