In a truly consensual society, where everyone must agree beforehand to rules that can affect everyone, even a (potential) offender can agree beforehand to punishment for certain acts. Take reckless driving, for instance. Even a person who becomes reckless behind the wheel can agree that recklessness endangers lives (including his own) and ought to be deterred by non-trivial punishment of some kind (a steep fine, some jail time, etc.) The person who is prone to be reckless driving may be chagrined and angry at being caught and punished, but he cannot say that he didn’t consent to the punishment.
The problem is that a truly consensual society is unlikely to be very large. Quoting from “The Golden Rule and the State”:
Self-governance by mutual consent and mutual restraint — by voluntary adherence to the Golden Rule — is possible only for a group of about 25 to 150 persons: the size of a hunter-gatherer band or Hutterite colony. It seems that self-governance breaks down when a group is larger than 150 persons.
That observation suggests an experiment in government (one that is unlikely to be allowed), which I discuss in “Zones of Liberty”:
A zone of liberty would be something like a “new city” — with a big difference. Uninhabited land would be acquired by a wealthy lover (or lovers) of liberty, who would establish a development authority for the sole purpose of selling the land in the zone. The zone would be populated initially by immigrants from other parts of the United States. [This is followed by a detailed description of political arrangements in zones of liberty, and arrangements with federal, State, and local governments.]
A person’s ability to opt out of undesirable governance was much greater when the federal government remained (somewhat) within its constitutional bounds, back in the 19th century. The open frontier also helped, because a person or group could simply pack up and go in search of a more congenial place — often one without a pre-existing government or a with a government that was distant and inattentive to remote goings-on.
America today is not a voluntary community by any stretch of the imagination. Given the vast, unconstitutional powers assumed by the federal government in the past 100 years (it all goes back to Teddy Roosevelt) — and the mimicking of those powers by most State and large municipal governments (often coerced mimicry, but mimicry nonetheless) — most Americans who oppose overwhelming government have no place to go, because the cost of going is extremely high, in terms of income and ties of family and friendship.
In effect, we Americans have become hostages in our own land. (On that point, see “Law and Liberty,” and a follow-up post, “The Real Constitution and Civil Disobedience.”) Why? Because the Constitution, which was designed (in part) to protect minorities from the tyranny of the majority, has been perverted to enable coalitions of minorities to run roughshod over the “silent majority” and, ironically, each other to some extent. (See “The Interest-Group Paradox.”)
Government in the U.S. now resembles the gangster who makes an offer that his victim can’t refuse. American’s can’t refuse government’s “offer” for the reason that the gangster’s victim can’t: the vastly superior firepower of the government/gangster. Some might say that the gangster’s victim tacitly agrees to pay for “protection.” I wouldn’t say that. I’d say that he’s been extorted. Similarly, Americans have been extorted by gangster governments that have, for practical purposes, cut off all but a few escape routes, and those are open only to the relatively small number of persons who can afford to traverse them.
I agree tacitly and explicitly to the Constitution. I disagree explicitly with what it has become in the hands of rapacious interest groups and power-hungry politicians.
It seems that most Americans agree with me: “New Low: 17% Say U.S. Government Has Consent of the Governed” (from Rasmussen Reports). But many (most?) of them are hypocrites whose idea of “consent” is that others should “consent” to their power- and money-lust.