Consent of the Governed Was a Precise Idea in Locke, Not a Slogan

Every politician in America is for the consent of the governed. They say it at rallies. They put it in commencement speeches. Then they go back to the office and approve a rule nobody voted for, written by an official nobody elected, enforced by a penalty nobody debated. Ask them what consent means and you get a warm look and a pause long enough to park a truck in.

The phrase deserves better, because it was never a slogan. When Jefferson wrote in 1776 that governments derive "their just powers from the consent of the governed", he was borrowing a precise doctrine from John Locke's Second Treatise of Government, published at the end of 1689. In Locke, consent is not a mood. It is a legal act with terms. It creates a government, it limits that government to the purposes it was created for, and it sets the conditions under which that government forfeits its claim to obedience. Read those terms closely and you will see that most of what Washington does to us without asking is not merely unwise. By the founding standard, it is illegitimate.

Three chapters, three steps

Locke builds the doctrine across three chapters, and the order matters.

• Chapter VIII, "Of the Beginning of Political Societies", explains how consent creates a government at all.
• Chapter XI, "Of the Extent of the Legislative Power", explains what that government may and may not do with the power it was given.
• Chapter XIX, "Of the Dissolution of Government", explains what happens when the government breaks the terms.

Creation, limits, forfeiture. That is the whole architecture of American constitutionalism in miniature, and it was on the shelves of colonial lawyers decades before the Revolution.

The argument, premise by premise

Let me set it out as Locke does, one step at a time, with his own words where I am certain of them.

One. People are born free and equal, so no one has a natural right to rule another. Chapter VIII opens, in section 95, with the foundation:

Men being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent.

Notice what is missing. No divine right of kings. No hereditary title to command. Locke spent the whole First Treatise demolishing Sir Robert Filmer's claim that kings inherit Adam's authority over his children. Once that is gone, the only remaining source of legitimate political power is the agreement of the people who will live under it.

Two. Consent makes one body, and the body moves by majority. Once people agree to form a community, Locke says in section 96, the body must move one way or another, and it moves the way the greater force carries it, which is the consent of the majority. This is not majority tyranny. It is a practical rule of decision inside a body whose purposes are already fixed by the original agreement.

Three. Consent is given for a purpose, and the purpose is the preservation of property. Locke uses "property" in a wide sense: lives, liberties and estates. People leave the state of nature because their property there is insecure; there is no settled law, no impartial judge, no power to enforce a just sentence. Government exists to supply those three things. That is its whole job description.

Four. Power given for a purpose is limited by that purpose. This is the heart of chapter XI. The legislature is the supreme power, but supreme does not mean unlimited. In section 135 Locke says the legislative power is limited to the public good of the society and can never have a right to destroy, enslave or designedly impoverish the subjects. Then, in section 142, he lists the bounds the people's trust places on every legislature. It must govern by promulgated, established laws, not varied in particular cases. Those laws must be designed for no other end but the good of the people. It must not raise taxes on property without the consent of the people. And it must not transfer the power of making laws to anyone else.

Five. Taxation requires consent, given by the people or their representatives. Section 138 says the supreme power cannot take from any man any part of his property without his own consent. Section 140 explains how that consent is given in a large society:

it must be with his own consent, i.e. the consent of the majority, giving it either by themselves, or their representatives chosen by them.

That clause would light the fuse of a revolution eighty years later.

Six. Lawmaking power cannot be handed off. Section 141 is a sentence every member of Congress should have to recite before voting on a bill that says "the Secretary shall promulgate such regulations as the Secretary deems appropriate":

The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others.

The people chose who would make their laws. They did not choose the legislators' designees.

Seven. A government that breaks its trust dissolves itself. In chapter XIX, Locke says that when legislators try to take away the property of the people or reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, and the people are absolved from further obedience. He insists this is not a hair trigger. People bear mistakes in rulers patiently. But in section 225, if "a long train of abuses, prevarications and artifices, all tending the same way" makes a design visible, the people may act. And who decides? Section 240 gives the answer that terrified every court in Europe: the people shall be judge.

Tacit consent, the weak joint everyone attacks

Locke knew the obvious problem. You never signed anything. Neither did your grandparents. So how is a person born into an existing society bound by it?

His answer, in section 119, is tacit consent. Anyone who holds possessions or enjoys any part of the territory of a government gives tacit consent to its laws for as long as that enjoyment lasts, even if he is only lodging for a week or traveling on the highway. Express consent, a promise or oath, makes a person a full member. Tacit consent makes him subject to the laws while he stays.

This is the joint in Locke's skeleton that critics have kicked hardest, and fairly so. If walking on a road counts as consent, it is hard to imagine what would count as refusal. We will meet the best version of that objection in a moment. For now, notice that Locke himself ranks tacit consent below express consent. He did not think a government could rest its whole claim on the fact that people had not yet left. He thought legitimate government rested on the original agreement and on continuing fidelity to its terms.

How the colonists used the doctrine

The American argument against Parliament was Locke's chapter XI turned into petitions and pamphlets, and you can trace it year by year.

In 1764, James Otis of Massachusetts published The Rights of the British Colonies Asserted and Proved, arguing that no part of a man's property can be taken from him without his consent, given by himself or his representative. In October 1765 the Stamp Act Congress met in New York and resolved that it is essential to the freedom of a people that no taxes be imposed on them but with their own consent, given personally or by their representatives, and that the colonists were not, and could not be, represented in the House of Commons. Parliament repealed the Stamp Act in 1766 and in the same session passed the Declaratory Act, claiming power to bind the colonies "in all cases whatsoever". That was a direct denial of Locke's limits, and the colonists understood it as one.

John Dickinson's Letters from a Farmer in Pennsylvania in 1767 and 1768 made the case against the Townshend duties: a duty laid for the purpose of raising revenue is a tax, whatever Parliament calls it. Samuel Adams's 1772 report on the rights of the colonists, written for the Boston committee of correspondence, leaned on Locke so heavily that parts of it follow the Second Treatise closely. The pamphleteers also drew on the radical Whig tradition, the essays explained in Cato's Letters, the Newspaper Essays That Taught the Colonies Liberty and the martyred theorist profiled in Algernon Sidney, the Executed Englishman the Founders Kept Quoting.

Then came the Declaration. Its second paragraph is chapter VIII and chapter XIX in a few lines: people have unalienable rights; governments are instituted to secure them; governments derive their just powers from the consent of the governed; and when any form of government becomes destructive of those ends, it is the right of the people to alter or abolish it. Even the phrase that introduces the indictment of George III, "a long train of abuses and usurpations", echoes section 225. And the indictment itself charges the king with "imposing Taxes on us without our Consent". The full anatomy of that paragraph is in The Declaration's Second Paragraph Is a Complete Theory of Government, and the charges are laid out in The Grievance List in the Declaration Reads Like a Charge Sheet Against Power.

The strongest objection, from David Hume

Now the best case against all of this, and it comes from a man conservatives admire. In his essay "Of the Original Contract", published in 1748, the Scottish philosopher David Hume argued that the social contract is a philosophical fiction.

Stated fairly, Hume's case runs this way. Almost every government on earth began in conquest, usurpation or inheritance, not in any agreement. Ask ordinary people why they obey and they will say it is their duty or the custom of the country, not that they promised. Tacit consent is no consent at all: Hume compared it to a man carried aboard a ship while asleep, who is then told he consented to the captain's authority because he did not leap into the ocean. A poor peasant who knows no foreign language and has no means to emigrate cannot be said to choose to stay. Obedience rests on utility and habit; we obey because society could not survive otherwise. Dress that up as a contract and you invite people to dissolve the government whenever they decide the terms were broken.

That is a powerful critique, and part of it is right. Tacit consent, as a description of how most governments in history actually began, is weak. But the argument against Locke's doctrine as Americans used it fails on four counts.

1. Locke offered a standard, not a history. He did not claim that every government began in a meeting under an oak. He claimed that only government resting on consent is legitimate. Hume's observation that most governments began in force is not a refutation; it is a list of illegitimate beginnings. Saying most loans in a mob town were extorted does not prove that lending requires a pistol.

1. The American founding is the case Hume said did not exist. Hume wrote that governments are almost never founded on express agreement. Eleven years after he died, the United States produced one that was. The Constitution was drafted behind closed doors, but it was then published, debated in newspapers for months, and ratified by special conventions elected for that single purpose in each state. Article VII made it binding only on the states that ratified it. The preamble opens "We the People" for a reason. Then Article V provided a lawful way for later generations to change it. That is consent expressed, recorded and renewable.

1. Hume's utility does not replace consent; it needs consent's limits. If obedience rests only on usefulness and habit, nothing in that account stops a useful government from becoming an unlimited one. Locke's answer to the question "What may government not do?" is precise: it may not rule by arbitrary decree, take property without consent, or hand its lawmaking power to others. Hume's account has no comparable list. Conservatives who love Hume's suspicion of abstract theory, and we should, still need Locke's fences. The comparison is pressed further in Hume Doubted the Social Contract, and Conservatives Learned From Him.

1. The fear of instability cuts the other way. Hume worried that contract talk would make people quick to rebel. Locke answered in chapter XIX that people are slow to stir and bear long with mistakes. The record bears Locke out. The American colonists petitioned for a decade before 1776, and the Declaration itself says that prudence dictates that governments long established should not be changed for light and transient causes. A doctrine that names the conditions for resistance in advance is a brake on revolution, not an accelerator.

What precise consent demands of Washington

So take the doctrine seriously and hold it up to the present.

Begin with section 141, the bar on transferring lawmaking power. The Constitution writes the same principle into its first sentence after the preamble: "All legislative Powers herein granted shall be vested in a Congress of the United States". Yet the Competitive Enterprise Institute's count of the Federal Register puts final rules at 3,248 in 2024 and 2,441 in 2025. Every one carries the force of law. Very few were voted on by anyone the people chose. The Supreme Court has begun to push back. West Virginia v. EPA (2022) held that agencies need clear congressional authorization for questions of vast economic and political significance, and Loper Bright Enterprises v. Raimondo (2024) overruled the Chevron doctrine that told judges to defer to an agency's reading of an ambiguous statute. The older history of this fight runs through The Sick Chicken Case of 1935 and the Doctrine That Could Rein In Agencies. Locke would ask a simpler question than the courts do: who consented to this rule? You can watch the volume yourself on our red tape tracker.

Then the taxing power. The Founders put Locke's section 140 into Article I, Section 7: "All Bills for raising Revenue shall originate in the House of Representatives". The chamber closest to the people starts every tax, as explained in Why Every Tax Bill Must Start in the House, and How the Senate Gets Around It. Borrowing is the workaround. A deficit is a tax deferred onto people who cannot vote yet, and the arithmetic is not hidden. Treasury put the total public debt at $38.05 trillion on November 4, 2025, and $40.56 trillion on November 5, 2026, an increase of $2.51 trillion in a year. Whatever consent that represents, it is not the consent of the children who will pay it.

Finally, the trust itself. Locke's word for the relationship between people and government is a fiduciary word. A trustee holds property for a beneficiary and must use it only for the beneficiary's purposes. A trustee who spends the trust on himself, or hands the management to strangers, or changes the terms without asking, is in breach. That is the right frame for every argument over the size of the federal government. The question is never only "Is this policy good?" It is "Did the people grant this power, through their representatives, for this purpose?"

The case in brief

1. In Locke, consent is a legal act with terms: it creates government (chapter VIII), limits it to the ends it was formed for (chapter XI), and names the conditions of forfeiture (chapter XIX).
2. Those terms include taxes only with the consent of the majority or their representatives, and no transfer of lawmaking power to other hands.
3. The colonists turned those terms into the Stamp Act Congress resolutions, the farmer's letters and the Declaration's second paragraph and grievance list.
4. Hume's objection exposes the weakness of tacit consent but not the standard itself, and the ratification of the Constitution answered his claim that express consent never founds a government.
5. Precise consent makes the rulemaking state and debt-financed spending questions of legitimacy, not only of policy.

What you can do: pick one final rule from the Federal Register this month, find the statute it cites as authority, and ask your representative's office in writing whether Congress actually voted to grant that power.