We reject the idea that some people are born superior to others, with a right to rule them. What, then, if anything, justifies a state’s power over its citizens?

David S. D’Amato is an attorney, a regular opinion contributor at The Hill, and an expert policy advisor to the Future of Freedom Foundation and the Heartland Institute. His writing has appeared in Forbes, Newsweek, The American Spectator, the Washington Examiner, Investor’s Business Daily, The Daily Caller, RealClearPolicy, Townhall, CounterPunch, and many others, as well as at nonpartisan, nonpartisan policy organizations such as the American Institute for Economic Research, the Centre for Policy Studies, the Institute for Economic Affairs, the Foundation for Economic Education, and the Institute for Ethics and Emerging Technologies, among others. He earned a JD from New England School of Law and an LLM in Global Law and Technology from Suffolk University Law School. He lives and writes in Chicago.

In any American election, the vast majority of people don’t vote. Even among the portion of the American population that is eligible to vote, less than three‐​fifths turned out for the 2012 presidential contest, with over 90 million eligible voters staying at home on that November day. For those who do vote, the risible scene of the American electoral circus presents them with a choice between two wings of a fundamentally unified political establishment — an apparently indomitable welfare‐​warfare machine devoted to enriching corporate cronies and stifling the needful spontaneity of genuine freedom. Worse still, in national elections, no individual vote could really matter, and even assuming a single vote were somehow able to impact an election result, our collective electoral decisions extend only to an infinitesimal tip of the iceberg. As Jeffrey Tucker observed last November, “we elect about 0.02 percent of the overall number of people who rule us.” As we bring this picture into focus, we may begin to doubt the authenticity of the claim that ours is a “government of the people, by the people, for the people.” We may even start to see the actions of the government as essentially usurpatory, as robbing individuals of their right to self‐​determination.

After all, the state’s advocates frequently cite our right to vote as proof of (or at least evidence supporting) the proposition that we as a whole society collectively consent to being governed. For Rousseau, through the idea of the “general will,” each and every “citizen gives his consent to all the laws, including those which are passed in spite of his opposition.” According to Rousseau’s theory, his idea of the social contract, voting is an essential part of the process through which we arrive at this general will, the will of each separate individual being both a part of it and subordinate to it. But if casting a vote is as meaningless a gesture as some of the facts above seem to suggest, then we might have reason to question a social contract theory that relies so heavily on suffrage. Moreover, suppose we accept the argument that voting legitimates the state; we might nevertheless see this, as many libertarian theorists have, as among the best reasons not to vote. As George H. Smith argues, “Libertarians should oppose the vote in principle — they should oppose the mechanism by which political sanctification occurs.” If voting so much as tends to redeem the inherently unjust, coercive state, then arguably sane, peaceful citizens should take all reasonable steps to avoid the voting booth. In condemnatory language similar to Smith’s, the great libertarian polemicist Benjamin Tucker wrote that “[e]very man who casts a ballot necessarily uses it in offense against American liberty, it being the chief instrument of American slavery.”

Rather than asking whether an individual has an unqualified right to liberty, we might invert the question, asking whether some individuals have a right to rule others. If no one may rightfully claim the power to rule others, then governments may rule only with the consent or permission of their subjects. But if the rule of a given government is so predicated—if it is simply the product of voluntary agreement—then we cannot properly define it as “rule” at all, for ruling implies some kind of power imbalance or disparity, a coercive and unequal relationship. An agreement (or contract), by contrast, is defined by the fact that the parties choose to be bound by its terms, following their own free will. Assuming, for argument’s sake, that existing governments are the products of consent and contract, mere delegates or agents of their subscribers, the libertarian can take no issue and lodge no complaint; she cannot object that we are the subjects of arbitrary rule, that we have been offered no choice. The requirements of consent and voluntariness once adhered to, the libertarian program of politics is practically accomplished. Fundamentally, our argument calls for certain means, not particular ends. We must ask, then, whether the state has secured our consent.

As David Hume writes in his Treatise of Human Nature, if you were to ask most people “whether they had ever consented to the authority of their rulers,” you would likely be met with some rather quizzical expressions. Excepting those with a particular interest in political philosophy, it simply doesn’t occur to most people that the absence of consent could provide a basis for calling the authority of government itself into question. But for libertarians, who believe that each individual is a sovereign self‐​ruler, entitled to make the decisions about her own life, the abstract question Hume (and so many other philosophers) grappled with is rather important. And it’s important not merely as an otiose exercise in navel‐​gazing, but as a matter of practical ethics—for if government is just another group of people, then we should expect it to follow the general, common‐​sense rules that govern social conduct.

In his book The Problem of Political Authority, philosopher Michael Huemer confronts one possible theory for reconciling government and consent, the idea of hypothetical consent; this is the theory that although we haven’t actually consented to the authority of the state, we “would consent … under certain hypothetical conditions.” For hypothetical consent to effectively substitute for actual consent, Huemer says, “the obtaining of actual consent must be impossible or unfeasible,” as in the example of an unconscious patient whose condition requires emergency surgery. Most reasonable people would agree that the unobtainability of the patient’s consent should not stand in the way of a doctor’s provision of life‐​saving care. In such cases, we are forced to accept a counterfactual, to assume that the patient would want to undergo a surgery that would save her life. Suppose, though, that we know this patient to be a devout follower of a religious organization that rejects Western medicine, requiring its members to forbear pharmaceuticals, hospitals, and surgeries altogether. Huemer tells us that, in such circumstances, we can no longer rely on the theory of hypothetical consent, its terms demanding that we honor the “fundamental beliefs and values” of the patient as he has expressed them. All existing governments demonstrably fall short of satisfying the conditions necessary for hypothetical consent. We, the “citizens,” generally do not lack the mental capacity needed for effective consent, and many of us have quite explicitly disavowed government as at odds with our “fundamental beliefs and values.” Yet the machinery of government proceeds undeterred by these defects, like its subjects, hardly aware that it could require any justification.

Suppose, however, that we answer the question differently, admitting that some people do, in fact, have a right to coercively rule others. Granting that some people possess such a right to rule, we would necessarily affirm the old idea that people are not coequals, that some are born with an innate superiority, a result, perhaps, of wealth, ethnic background, family, or some other arbitrary factor. If government is not premised on some kind of consent, then it must be based on a version of this claim, that a relative handful have a natural right to rule the rest of us. Libertarians reject this idea and its practical consequences, endorsing a very different conception of the social contract.

Based on fraud and duress, the social contract, so called, is a nullity, legally ineffectual and commanding no obedience from free people. The French anarchist philosopher Pierre‐​Joseph Proudhon argued that a true social contract means simply “an agreement of man with man,” a system under which all individuals would “abdicate all pretension to govern each other.” Rejecting Rousseau’s social contract theory, Proudhon argued that “[t]he idea of contract excludes that of government.” Many libertarians agree. We look forward to a society in which elections matter even less than they do today, individuals governing themselves free from coercive interference. Complete freedom of this kind does not mean lawless anarchy, but the principled and consistent application of the basic social law, the law of equal liberty, to everyone, leaving no rulers and no ruled.