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February 22, 2022

True Consent of the Governed

by Professor Robert J. Barth

True Consent of the Governed

The American founders recognized that with great authority comes great responsibility. Yet people are fallible with weaknesses and they lack perfect wisdom. In addition, people have passions and motives that are not always pure and selfless. Thus, the signers of the Declaration of Independence clearly provided that the formation of governments to secure unalienable rights was subject to change based upon experience and need. While not compromising the objective of securing unalienable rights, the founders affirmed that the authority to change the form of governments is inherent within the “consent of the governed.”

“That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it” was the language used to confirm that the source of civil governmental authority is the people. The founders even included language to abolish an existing form of government if it proved unworkable and they needed to “start over.” Yet the goal of government was never to change—only possibly the form. The Declaration did not provide for a change in the fundamental philosophy of government that acknowledges the Creator as the source of unalienable rights. Plus, the power to alter or abolish an existing form of government did not permit a departure from the view that a civil body politic only had the liberty to govern itself within the limitations of the laws of nature and of nature’s God.

An analogy to corporate law may help explain the legal authority of the Declaration of Independence in America. To different degrees corporations are governed by the consent of the governed. First, the corporation must be created by a declaration of its name and purposes. This is typically done by filing articles of incorporation in the state where the corporation is to exist. While the state is not the source of the liberty to associate with others for business purposes, one of the delegated powers of the state is establishing steps that must be followed before a corporation is recognized as a legal entity. The Declaration of Independence is like an articles of incorporation in that the Declaration states the legal basis for the formation of a nation, it states the purposes for the nation’s existence, its states the source of the authority to form the nation, and it even states the name of the new nation—the “United States of America.”  

Corporate Seal

Continuing the analogy, once a corporation is legally created, the incorporators must adopt bylaws which set forth the rules of operation, such as the method of selecting directors and officers, the authority of directors and officers, meeting procedures, and voting rights. Once the United States was “incorporated” under the laws of nature and of nature’s God, the state constitutions were comparable to the bylaws of a corporation. These constitutions include the enumeration of the purposes, structures, division of powers, operations, limitations on authority, and an amendment process. Consistent with the principle of consent of the governed, state constitutions only became effective after being ratified by the people of the state.  

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About the Author

Professor Robert J. Barth
A graduate of the University of Illinois (B.S. 1976), Professor Robert J. Barth received his Juris Doctor from Southern Illinois University School of Law in 1979. He received his Master’s Degree in Public Policy from Regent University in 1986. From 1986 to 1995, Professor Barth was associated with Regent University School of Law in several capacities, including assistant dean for academic and student affairs, and editor of the Journal of Christian Jurisprudence. He has written several articles, and as the director for academic programs, he has authored Oak Brook College’s book, Renewing Your Mind as You Study Law.

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