Voting and Consent: Core vs. Periphery

My general approach to the question of whether one has an obligation to follow the law is that voting confers such an obligation on you, and that I think various ad hoc arguments can extend that obligation to include everyone in society. My general reliance on voting met a fair amount of resistance in class today, and in conversation with friends afterward, so in the spirit of college and philosophy courses and open-mindedness and all, I'll try to work through some of these objections and see where I come out. The strongest criticism of my viewpoint on this issue goes like this: even if we accept that voting entails accepting the legitimacy of the government and therefore an obligation to obey the law, why do I claim that having ever voted confers that obligation for life? Why shouldn't it be that one can vote, accept an obligation to obey the law, and then subsequently decide you don't like that obligation and stop voting?



Let's start with the kernel of the argument that voting constitutes consent or agreement or acceptance or whatever of an obligation to obey the law. Suppose there's a town hall or referendum being held on the question of passage of a certain law, the premise of which is that if the law receives some percentage of the total votes, probably 50% but maybe two-thirds or some other supermajority threshold, it will be deemed passed and enacted into law. Then suppose that I show up at that referendum and vote against the law because I think it is unjust, but it passes anyway. Because I knew, when I cast my vote, the conditions under which the vote was being held, i.e. that the law would be enacted iff it met a certain threshold of votes, I have implicitly accepted those conditions as legitimate when I cast my vote.* That acceptance gives me an obligation to go along with the consequences of the vote, and the fact that I don't like the result of the vote doesn't change that.

(*There are always exceptions along the lines of civil disobedience and laws so unjust they demand disobeying even if you are generally obliged to obey. These exceptions, I think, are generally strong enough to justify voting in a system you do not accept in the hopes of stopping such an unjust law from becoming law. It's a fairly benign interpretation of "by any means necessary," I'd say.)

First of all we need to demonstrate that similar logic applies at all in the case of representative democracy. I argue that it does. The constitution spells out in advance how the votes that general citizens cast will be translated into laws. Those provisions are public record. Moreover, people are generally cognizant of them, at least at the basic level (you vote for Representatives, Senators, Presidential electors, etc., we get a federal government elected, and they make laws through bicameralism and presentment, in the American case). When they vote in a federal election, therefore, they accept the premises of the federal government's basic political structure as legitimate, and have an obligation to accept and follow the results of the election as processed by the constitutional structure.

One question my friend raised in our argument was whether voting on one level of the American federal system confers this obligation across all levels of the system. I have a couple of minor points on that score: 1) no sub-state level political unit has independent authority; they are, instead, directly supported by their state's constitution, so voting in local government counts as voting at the state level; and 2) if you are in any state you were not born in, the standard logic relating to immigrants applies, namely that the state was perfectly up-front about its constitutional system before you voluntarily entered it, so by entering you accepted that system as binding upon you while you are within its borders. The more vital question, however, is whether voting at the state level "counts" as voting at the federal level and confers an obligation to obey federal laws.

The argument that it does count as voting at the federal level depends largely on the assertion that all branches of the American government at all levels are ultimately manifestations of the federal constitution. Opponents of this argument claim that state governments have an existence prior to and independent of the federal government. My first point is that this claim applies only to the thirteen original states plus perhaps Vermont, Texas, and Hawaii that have ever actually existed as independent political entities outside the constitution. All the other states were carved from U.S. territories and created by the federal Congress. My feeling, moreover, is that the Civil War and the 14th Amendment state fairly strongly that states do not, in fact, have an independent existence outside of the federal union. The entire point of the Civil War was that states cannot leave the Union, i.e. opt out of the Constitution, any more than the federal government can destroy a state ("an indestructible union made of indestructible states). And the 14th Amendment clarifies that states can do none of the things that sovereign nations do, adding "choosing their own citizens" to the list of sovereign activities prohibited to the states in Article I Section 10. If a state cannot leave and cannot do anything that a sovereign nation can do, in what sense does it exist other than as a part of the United States? And if a state is ultimately little more than a part of the United States, then isn't the federal constitution an enormous part of the constitutional system one accepts in voting in state elections? One can also note that a good many constitutional-level restrictions on the function of state government are contained not in a given state's constitution but in the federal constitution, so the system that you know before casting your vote will process that vote includes the federal constitution.

The other question was whether voting once should bind you for life, whether the obligation to follow the law falls upon those who have ever voted or only on those who are, in some sense, current voters. Shouldn't we have the opportunity to choose whether we want to participate in this political game more than just once? My problem with this idea is that it gets tricky, I think, to parse the distinction, given that we only vote on one Tuesday in November every other year. So, do we get to make that choice every two years, at every Congressional election? What if my local government has elections every year, can I get out of my moral obligation to follow the law only one year after I most recently voted? On the other hand, if I vote for President I'm voting in an election whose term is four years. If I vote for Senator I'm voting for a six-year term. In some states Supreme Court justices are elected to terms of ten or fifteen years. At the federal level the President and the Senate are part of a system that conspires to appoint life-tenured judges. If we just mean to use voting as an indicator, then it might make sense to think that we're only looking at people who have not passed up an opportunity to vote since they last voted. If we're looking at the agreement to the constitutional system, we might want to know about anyone who voted in an election that has any continuing direct influence on the personnel of the government. Maybe more; after all, the Constitution proclaims itself eternal, so in accepting the Constitution when you cast a vote, do you not accept its eternity?

One plausible compromise I can envision is to look at the set of registered voters, which can reasonably be interpreted as people who intend to vote. The idea here is that someone who decided they wanted to retract their original decision to accept the constitutional system could de-register, declaring their intent not to vote, withdrawing their consent, and voiding their obligation. There are a bunch of problems with this, however. For one thing, I think that an unregistering voter's intent not to vote must be pure, i.e. they must genuinely expect that they will never want to vote again. But there is no way to check for this, because our government does not have some system by which you can sign away your right to vote, and nor should it. Purely as a matter of moral reasoning, I think you can make the case that, if on some level actual voting confers this obligation, then a personal expectation of future voting ought confer it as well, though I can also see an argument that if we're treating voting as a benefit (influence in politics) you can accept whose acceptance binds you to certain conditions, then you shouldn't be bound by the conditions before you've received and enjoyed use of the benefit.

One thing about all of these questions is that, as moral questions, they don't ultimately require a definitive answer. Legal questions do, because the government has to take distinct actions based on its view of what is legally right. If someone breaks a law arguing that, because they intend not to vote in the future, they are not morally bound to obey the law, they've still broken the law. If they get away with it, they get away with it, and I'll think well or poorly of them based on whether I agree with them about the morals. If they get caught, the government will fine them or imprison them, and I'll still think well or poorly of them based on whether I agree with them about the morals. My impression of the government won't really depend on my view of the morals of the law-breaking itself, because the executive branch of the government is largely in charge of legal questions, not moral ones (though the pardon power is an exception to this). Moral questions are for legislatures, by and large, and once they've been made neither the executive nor the judicial, with a few specific exceptions, ought second-guess them. Given that we're living in a more-or-less consequence-free world, I'm personally inclined to think that in borderline or debatable cases there is an obligation to obey the law, because (strangely, I guess, for a committed civil libertarian) I think a general obligation to obey the law is a good thing. If someone disagrees with me, that's fine, I guess.