The People as Lawmakers: The American Contract

How a declaration about “consent” became a government that could enforce a tax

On a humid night in July 1776, printers in John Dunlap’s Philadelphia shop inked the first broadsides of a new document. It did not list dozens of famous signatures. Instead, the bottom read, “Signed by Order and in Behalf of the Congress, John Hancock, President.” The anonymity was practical—treason carried penalties—but it also fit the idea on the page: authority here would not rest on any one great man. The claim was bolder. It said the people could authorize a government the way a community authorizes a charter.³

The man who drafted the memorable lines was a tall Virginia planter who played the violin and collected ideas like seeds—Thomas Jefferson. Around him stood a printer-philosopher (Franklin), a lawyer with a volcanic temper (Adams), and, soon enough, a taciturn general with bad teeth who preferred action to speeches (Washington). Their shared obsession: who gives any government the right to rule, and how can you say no to a king yet yes to a law?

The answer they offered was not new, but it was radical to state it as the basis of a nation. Borrowing from the English philosopher John Locke, they argued that political power is legitimate only by consent. Jefferson’s line became scripture: “Governments are instituted among Men, deriving their just powers from the consent of the governed.”¹ Think of it like forming a cooperative: neighbors agree to a charter, appoint officers, and delegate powers to fix the roads and keep the lights on. Your consent isn’t a one‑time cheer; it’s an ongoing arrangement—renewed through elections, constrained by a written constitution, and corrected by courts and amendments.

That analogy mattered because consent can be slippery. Does it mean unanimous approval of every policy? Or does it mean we bind ourselves in advance to abide by rules we helped set, even when a particular rule stings? For Jefferson, Locke, and later Madison, the second answer was the only workable one. As Locke put it, no one is subject to political power without consent; but once you consent to a common rule-making process, majority decisions are binding within limits.²

The Revolution’s stress test arrived not in 1776 but in 1794, in the hills of western Pennsylvania. Congress—elected under a Constitution ratified by state conventions—had passed an excise tax on whiskey. Frontier farmers, who often used whiskey as a medium of exchange, saw the tax as a betrayal of the very principles they had fought for. Protests morphed into intimidation and the destruction of a tax collector’s home. Washington, now president of a government created by that vaunted consent, mustered a militia of nearly 13,000 and rode part of the way to enforce federal law. The rebels dispersed. There was no glorious battle; there was, however, a profound argument made with saddles and subpoenas: in a republic, laws passed by representatives and signed under a written charter can be enforced—even against the loudest dissenters—so long as the same charter protects rights and provides avenues to change the law.⁴

Was that hypocrisy? The critics thought so. But consider the alternative. If “consent” means any group can nullify any law it dislikes, then “rule by the people” dissolves into rule by whichever crowd shouts last. Madison warned about this in the ratification debates: factions are inevitable; the remedy is a structure that refines public views through representation and checks ambition with counter-ambition.⁵ The American social contract thus added two crucial clauses to the Declaration’s poetry: constraint (a written constitution that limits all power, even majorities) and correction (elections, courts, amendments, and protest to change course without civil war).

So what does this teach us today? When you hear that a policy lacks “the consent of the governed,” ask three questions.

• Consent: Was the rule made by a process the people previously authorized—free elections, proper delegation, transparent procedures? If not, legitimacy wobbles.
• Constraint: Does the rule respect constitutional limits—due process, equal protection, enumerated powers? Consent cannot license rights‑violations.
• Correction: Are there real, peaceful ways to revise or repeal the rule—ballots, courts, open debate? Without correction, consent curdles into resentment.

Apply this “three‑C” lens to everything from emergency executive orders to redistricting to referenda that promise instant democracy. A law cheered by crowds but made outside lawful process lacks consent. A popular policy that tramples minority rights violates constraint. And a system that makes change practically impossible betrays correction—driving citizens toward the very extralegal remedies revolutions are made of.

The Founders—those contract‑writing pragmatists—did not deliver a utopia. They excluded many from the circle of consent, especially women and enslaved people, and the nation paid for that contradiction in blood and centuries of struggle. But the tool they built survives precisely because it treats consent as a structure, not a slogan. The Dunlap printers got it right before the signatures were famous: legitimacy here would rest not on names but on a process that lets us bind ourselves—and then, when necessary, unbind and begin again.