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CHAPTER SEVEN CONSTRAINTS OF CONSENT The constitutional doctrine that the legitimacy of governmental authority came from the consent of the governed was not an American invention.l Although there were political commentators in Great Britain who doubted the rule's constitutionality, thought it "absurd," or questioned its antiquity,2 legitimization by consent was ancient English legal theory, part of the common law as stated by Bracton3 centuries before John Locke, to whom some writers have attributed the concept.4 It had been well understood and defended in the seventeenth century5 despite Filmer and Charles II.6 In the eighteenth century the concept was one of the elements making up a definition of freedom popularized by the numerous political catechisms of the day. In what did British liberty consist ? Viscount Bolingbroke asked in the most frequently reprinted catechism . "In laws made by the consent of the people," he answered.7 In the age of the American Revolution, the legitimization-throughconsent principle made three important contributions to constitutional theory. The first was the notion that without consent to government there could be no liberty. If Parliament could legislate for the American colonists "without th~ir privity and consent," a writer asked the Boston Gazette, "what benefit have they of any laws, liberties, and privileges granted unto them by the crown of England?" The answer: "I am loth to 97 98 CONSTRAINTS OF CONSENT give their condition an hard name; but I have no other notion of slavery, but being bound by a law to which I do not consent."8 The second contribution of consent to constitutional law was the legitimacy of government command. The right of government to require obedience to its commands was conferred by consent. "[T]he only moral foundation of government," John Adams claimed, "is, the consent of the people." One reason why consent helped to make government legitimate had been explained eighty-two years earlier by the whig divine Samuel Johnson. "What is done according to Law," he wrote, "every Body must abide by, because every Body's Consent is involved in the making of every English Law, and then it is no more than Common Honesty, to stand to one's own Act and Deed." Consent to command gave moral force to command or, as John Trenchard put it, all governments "derived their Authority from the Consent of Men, and could exercise it no further than that Consent gave them Leave."9 The third contribution was the most important. Trenchard mentioned it when he said that the power of governments was limited by consent, and added that "[w]here positive Conditions were annexed to their Power , they were certainly bound by those Conditions." The very act of legitimization constrained authority. The point was clarified by two New England clergymen preaching in 1774. Government was created by people , Samuell.ockwood told Connecticut's lawmakers. '~nd when this is done by free consent, and mutual compact, it. . . limits the power ofthe rulers-secures the rights of the people-is the standard of justice for rulers, and subjects." In other words, Nathan Fiske pointed out in a discourse delivered at Brookfield, Massachusetts, there were fundamental laws marking the boundaries between the powers of the rulers and the liberties of the people. '~nd those can be no other than what are mutually agreed on, and consented to. Whatever authority therefore, the supreme power has to make laws . . . being an authority derived from the community and granted by them, can be justly exercised only within certain limits, and to a certain extent, according to agreement."l0 The doctrine of consent can easily be misunderstood. From the perspective of the twentieth century it has aspects of a theory of democracy. This is partly due to the word "consent," and the right we tend to associate with it, the function of electing direct representatives to serve in the legislative branch of government. There were a few constitutional theorists in the eighteenth century who thought of consent through representation exclusively in terms of direct electoral participation in government and for whom "consent to government" was manifested only by the representation that the British people exercised in the House of Commons. That notion-that constitu- CONSTRAINTS OF CONSENT 99 tional "consent" required some exercise of direct legislative representation -seems to have had little support in the earlier years of the century .ll By the 1770s, however, it was well enough established in British legal thought that many of the constitutional plans offered for resolving the...

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