The Consent of the Governed

By Gordon S. Wood Alva O. Way University Professor and Professor of History Emeritus, Brown University

Among the many self-evident truths in the Declaration of Independence is the assertion that governments derive their just powers from “the consent of the governed.”  By consent of the governed, the Americans in 1776 meant the people giving their consent to the actions of government through the process of representation, since outside of the tiny New England town meetings, no one believed the people at large could govern themselves.

Consent through representation was one of the most important issues in the revolutionary era. Nearly all of the great debates of the period, beginning with the imperial controversy in the 1760s and ending with the clash over the new U.S. Constitution in 1787-1788, were ultimately grounded in the problem of consent through representation. Indeed, if representation is defined as the means by which the people participate in government, the fulfillment of a proper representation became the goal and measure of the Revolution itself—“the whole object of the present controversy,” as Thomas Jefferson put it in 1776.

 Representation, therefore, could not simply be an issue between England and America; it had to be one among Americans themselves. In the years following the Declaration of Independence, Americans began fashioning a radically new conception of consent through representation, a conception whose implications were not fully drawn out until the debate over the new U.S. Constitution.

Serious discussion of consent through representation began with Parliament’s passage of the Stamp Act in 1765, which levied a tax on many colonial paper products. Both the colonists and the British shared the basic principle of English political culture that no one could have his property taken without his consent. The British assumed that the colonists were virtually represented in Parliament, and thus had consented to the stamp tax. It didn’t matter to the British that the colonists hadn’t voted for any members of Parliament; many Englishmen didn’t vote either, but were nonetheless represented. Because of their confusing hodgepodge of electoral districts whose origins were lost in the mists of time, the British believed that election and comprehensible electoral districts were incidental to representation; all that mattered was the mutuality of interests that the members of Parliament shared with the British people, the Commons, of which the colonists were presumed to be a part.

For the colonists, this virtual representation made no sense at all. Their different and more recent experience in creating coherent electoral districts had led them to a belief in what they called actual representation.  This called for the most explicit kind of consent, which came down to voting. In other words, actual representation made voting, the electoral process itself, not incidental to representation but central to it. Since the colonists did not vote for any members of Parliament, they could not possibly be represented there. Parliament might regulate their trade, but it could not tax them.

Ultimately the British, out of frustration with the colonists’ attempts to distinguish taxation from trade regulation, invoked the doctrine of sovereignty, which declared that in every state there must be one final, supreme, indivisible lawmaking authority— and in the British Empire, that authority was Parliament. If the colonists accepted one iota of Parliament’s authority, as they did with trade regulation, they must accept all of it; and if they denied one iota of Parliament’s authority, as they did with taxation, they must deny all of it.

Confronted with this doctrine of sovereignty, the colonists chose to be outside Parliament’s authority entirely, and thus tied solely to the king. When they came to declare independence, they outlined the abuses of the king, scarcely acknowledging the existence of Parliament, even though Parliament had passed all of the offending legislation, from the Stamp Act to the Coercive Acts of 1774.

When the Americans in 1776 began creating their thirteen independent state constitutions, they confined the representation of the people to their various houses of representatives— the democratic element in their new republican mixed constitutions. This was more or less done in emulation of the English constitution that mixed or balanced the social orders of monarchy, aristocracy, and democracy made famous by the ancient Greeks in its constitution of king, Lords, and Commons. The Americans’ granting of so much power to the people’s representatives in the lower houses led some, like Richard Henry Lee of Virginia, to exclaim that their new governments were “very much of the democratic kind,” although “a Governor and a second branch of legislation are admitted.”  Lee was thinking of the traditional mixed government that went back to the ancient Greeks, a mixture of democracy, aristocracy, and monarchy, the social orders that corresponded to the houses of representatives, the senates, and the governors.

Thus, when most      of the states created upper houses or senates and single governors or executives, these offices presumably stood for social orders distinct from the people.  The senators, for example, though elected, had no constituents, but were supposed to be independent men of wisdom, standing for the aristocratic order of mixed government.

In the years following the Declaration of Independence, the legislatures in the thirteen new independent republics, especially the democratic part of the balanced constitutions, began abusing their enormous powers.  This created a crisis of “excesses of democracy” in the states.  Many reformers tried to deal with this crisis by taking power from the states’ houses of representatives and giving it to their senates and governors. But as American political culture became increasingly popular, it became more and more difficult to justify enhancing the aristocratic and monarchical elements in the mixed republics. Since the senates were often elected by the same people that elected the lower houses, why should the upper houses even exist?

The problem was vividly exposed in Pennsylvania, which had purposefully avoided having a governor and a senate in its 1776 constitution, being satisfied with a single house of representatives as its government.  When reformers in 1777-78 sought to add a senate to the legislature, defenders of the 1776 constitution cried that the reformers were trying to foist a House of Lords on the state. The reformers avoided defending the need for an aristocratic balance in the legislature and instead replied that they wanted only “a double representation of the people.”  But if the people could be represented twice, why not three times or four times? And if election was the criterion of representation, why then were not all elected officials representative of the people?

The issue was drawn out more fully in Massachusetts. When the convention that created the Massachusetts Constitution of 1780 claimed that “the Governor is emphatically the Representative of the whole People, being chosen not by one Town or County, but by the People at large,” it rendered meaningless the notion that the lower house of the legislature exclusively represented the people. Indeed, the convention implicitly acknowledged that the traditional notion of a mixture of three social orders was no longer applicable in America. The governor was granted a qualified veto in order that “a due balance may be preserved in the three capital powers of Government”— that is, not monarchy, aristocracy, and democracy any longer,  but a balance of the powers of the legislature, judiciary, and executive.

All these new ideas brought Americans to the brink of a major transformation in their thinking about what “the consent of the governed” really meant. The difficulty of the states themselves to deal with their “excesses of democracy” led to the Philadelphia Convention of 1787 that framed an entirely new, powerful, and elevated federal government designed to limit the states. 

Indeed, so elevated and powerful was the new central government that its proponents— the Federalists, as they called themselves— were hard put to defend it. Its opponents—the Anti-Federalists, as they were called— mounted powerful and persuasive arguments, condemning the new distant government as too consolidated, too aristocratic, too contrary to the libertarian spirit of 1776, and so far-removed from the people as to violate the principle of consent of the governed. The new chief executive and Senate, the opponents complained, were thoroughly aristocratic and beyond any kind of popular influence. The House of Representatives, supposedly the democratic part of the new Constitution, with a membership of sixty-five (smaller than most of the state legislatures)  lacked even “a tincture of democracy,” It was, said the Anti-Federalists, less a real representation of the people than “an Assistant Aristocratical Branch” to the Senate. Finally, the Anti-Federalists invoked the British doctrine of sovereignty, complaining that because of the Supremacy Clause, final and ultimate lawmaking authority would end up in the federal government, leaving the states with the minor tasks of laying out roads and measuring the height of fence posts.

The challenge for the Federalists was to somehow deal with this problem of sovereignty and make the Constitution more popular than it appeared. They met this challenge by locating sovereignty in the people at large and by exploiting the idea of actual representation that the colonists had used in the imperial debate with Britain, especially the assumption that election was the criterion of representation.  In the process, they transformed the Americans’ thinking about the nature of their governments.

The proponents of the new federal Constitution argued that the opponents of the Constitution had nothing to fear, for all parts of the new government, even appointed judges, were now agents or representatives of the people. The new federal government, said James Wison, was “purely democratical.” Although the new federal government outwardly resembled the traditional mixed government of the English constitution, in fact, said Wilson, “all authority of every kind is derived by REPRESENTATION from the PEOPLE and the DEMOCRATIC principle is carried into every part of the government.” Others presumed that this was true of all parts of the state governments as well. 

In America, the sovereign people were not eclipsed by representation.  In Britain, once the people elected a Parliament, they ceased to exist legally or politically until the next election. 

By contrast, the American people never went out of existence. The people, the Federalists declared, always remained alive politically and legally, doling out to their various agents or representatives in the states and the federal government bits and pieces of their sovereign power, but never all of it. The consent that they loaned to their agents and representatives was always tentative, always partial, and could be taken back at any time. In effect, the governed had become the governors, and the traditional idea of the consent of the governed was broadened into something called “public opinion.”

By 1787-1788, many Americans had come to believe that they alone among the peoples of the Western world understood the true principle of consent through representation. Only by profoundly transforming the traditional way in which the people participated in government could Americans make sense of federalism. Only then could they explain the revolutionary idea that the people were equally represented in two or more parts or levels of government at the same time. Only then could they justify the idea of constitutional conventions creating constitutions that were superior to ordinary legislation. Only then was the modern conception of democracy, indeed the modern conception of politics itself, made meaningful.

Gordon S. Wood is  Alva O. Way University Professor and Professor of History Emeritus, Brown University.