On the latest episode of Legal Spirits, I speak with legal scholar Steve Smith (University of San Diego) about a foundational principle of American law and politics: "the consent of the governed."
That phrase, which goes back to the Declaration of Independence, has long served as a central justification for our constitutional order. Our government is legitimate, we tell ourselves, because, as a free people, we have agreed to it. But in a society that is politically polarized, can consent still do the work that is required of it? Can we continue to ground legal and political authority in a story that fewer and fewer Americans believe?
Drawing on his new paper, The Collapse of Consent, Steve and I explore how the idea of consent has shifted over time—from a condition that limited a government that was itself based on God-given or natural rights to a secular source of legitimacy that stands on its own. Consent was always a legal fiction, Steve argues--but it's no longer as "truish" as it once was, in a time of cultural fragmentation and institutional mistrust.
