Consent of the Governed

May 19, 2026

Justice requires that laws must have the consent of the governed. The progressive federal income tax lacks this consent. The majority pays at one rate. The minority pays at a higher rate. This is unjust and unconstitutional.


Filius X. Publius
	Our current income tax is unfair and unconstitutional. We should get rid of it.
Tall, Dark, and Handsome
	Yes, it is unfair. That’s what I’ve been saying. The rich aren’t paying their fair share. The tax should be more progressive.
Blayden Balance
	The current tax code may be unfair, but how do you figure it is unconstitutional? Haven’t you read the Sixteenth Amendment?
Filius X. Publius
	Yes, I have. The federal government may tax income, but that doesn’t mean that any tax on income is constitutional.
Blayden Balance
	It says we can tax income "from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration." Sounds like anything goes.
Filius X. Publius
	It may sound that way at first glance. But give it a little thought. I think you will agree that there are real limits not mentioned in that Amendment.
Blayden Balance
	Such as?
Filius X. Publius
	Suppose we only taxed racial minorities? No income tax on white people?
Blayden Balance
	That would violate the equal protection clause of the Fourteenth Amendment. The Supreme Court would not allow it.
Filius X. Publius
	Are you saying such a tax is unconstitutional?
Blayden Balance
	Ok. That would be unconstitutional.

	All you have done is offer a single far-fetched example that would be unconstitutional. No one in Congress would submit such a tax for a vote. No one in Congress would vote for it. You haven’t established that our current income tax is unconstitutional. Your example doesn’t even hint at any problem with the current tax.
Filius X. Publius
	Agreed. So I must offer proof that the current income tax violates the Constitution.
Blayden Balance
	Don’t promise more than you can deliver. The Supreme Court has already ruled that the income tax is constitutional.
Filius X. Publius
	Yes, but remember, the Court is fallible, and has overturned some of its own rulings.

	Before we go any further, we should be clear about the meaning of the word "governed." For the income tax it means those who must pay the tax. Because there are multiple tax rates in our progressive income tax, there are multiple groups of the "governed." One group of the governed for each tax rate.
Blayden Balance
	Fine. What basis do you have for thinking the income tax is unconstitutional?
Filius X. Publius
	The tax lacks the consent of the governed.
Blayden Balance
	What, the tax is unconstitutional because the rich don’t like paying it? Are you suggesting that anyone who doesn’t like a tax doesn’t have to pay it?
Filius X. Publius
	No, we can’t allow that as grounds for not paying your taxes. If we did, almost no one would pay any taxes.
General Ken
	Wait. Why is consent of the governed so important? And how did it get to be so important?
Filius X. Publius
	It follows from the self-evident truth that we have equal rights.

	Perhaps we should approach your question with an example. Should I be able to dictate what you may eat? Or what you may not eat? Maybe I rule that you may not eat pizza. Would that be OK?
General Ken
	Of course not.
Filius X. Publius
	Why not?
General Ken
	Because we live in a free country. I get to decide for myself what to eat.
Filius X. Publius
	Does that also mean that you can’t dictate what I may eat?
General Ken
	Yes.
Filius X. Publius
	So how do we outlaw murder? Theft? If I can’t dictate your behavior and you can’t dictate my behavior, who can make laws against crimes?
General Ken
	Ok. I didn’t see that one coming. Do you have a suggestion?
Filius X. Publius
	Yes, there is a way to have equal rights and laws against crimes. The limit is that no single person has the right to make any law. Not even a law against murder, or theft, or anything else. No one person, no small group, can rule over everyone else. No one can declare laws by edict. Such a person or group would be a king. And that would violate the self-evident truth that we are all equal, and have equal rights.

	But we could all get together and agree that we should enact some laws. Those laws would apply to all of us. We would still have equal rights if we meet two conditions. The majority has to agree to create those laws. And the majority agrees to abide by those laws. The laws must apply equally to the majority that voted for the laws, and to the minority that opposed the laws.
General Ken
	But what about the minority that don’t want those laws? Do they still have equal rights?
Filius X. Publius
	Yes, they would still have equal rights. They got to vote on the creation of those laws, just like everyone else. And the majority has to obey the laws, too. Not just the minority.
Blayden Balance
	How is the tax law any different? The majority enacted the law. The law applies to everyone. Everyone must pay their taxes. Both the majority and the minority.
General Ken
	Slow down a bit. We don’t have majority rule all the time. There seems to be trouble getting Congress to do something because they don’t have 60 votes in the Senate, or some such thing.
Blayden Balance
	That’s right. Some things require super-majorities. In the Senate, it takes 60 votes to end debate. Also in the Senate, it takes a two-thirds majority to ratify a treaty. Overriding a veto requires two-thirds in both the House and the Senate. Ratifying a constitutional amendment takes three-fourths of the states.

	Still, Congress enacts most laws with simple majorities in the House and Senate.
Spawn of the Torch Lady
	Constitutional amendments can be easier. The Supreme Court can do it with only five votes.
Filius X. Publius
	Let’s save that discussion for some other time.

	Majority rule is a big improvement from our earlier rules. The Articles of Confederation had more difficult hurdles to make or change laws. Each state had a single vote in Congress. It took nine of thirteen votes to pass new laws. Making amendments required all thirteen states to agree. That protected minorities from having laws they didn’t like. But it made it much harder to make any changes.
General Ken
	How did they get anything done?
Filius X. Publius
	They didn’t; at least not very much and not very well. Congress called a federal convention to propose improvements. That convention proposed our current Constitution. We now call it the Constitutional Convention.

	Under the Constitution we moved closer to majority rule. A simple majority can pass a new law. Some other actions require more. As we just discussed.
General Ken
	What about the rights of the minority? Are you saying the Constitution gave up on minority rights?
Filius X. Publius
	Certainly not. All constitutions protect minority rights. That is by design. If your goal is to have majority rule you don’t need a constitution at all. Whatever the majority votes for today would be the law. And it remains the law until the majority changes the law.
Spawn of the Torch Lady
	All constitutions protect minority rights. If the government obeys it.
Blayden Balance
	Which is why the judiciary is so important. It is their job to make sure the rest of the government obeys the limits in our Constitution.
Filius X. Publius
	Our Constitution balances two goals. We have the efficiency of majority rule. And we have a healthy respect for minority rights.

	The Constitution limits what the majority can do. We placed some limits on how the laws can operate. We have some limits that forbid certain actions by the government. All of the limits are there to protect minority rights.
Blayden Balance
	The federal income tax has the consent of the majority. It doesn’t need the consent of the minority. Where is there a constitutional problem?
Filius X. Publius
	Those who pay the bulk of the tax have no effective voice in the imposition of the tax.
Blayden Balance
	That sounds like "no taxation without representation". That won’t work for you. Everyone in the U.S. has representation in Congress.
Filius X. Publius
	You are overlooking a big difference. Having representation in Congress isn’t the same as having the consent of the governed.
Blayden Balance
	I doubt you can establish that. Even if you can, what would it matter? We fought the revolution over "no taxation without representation." If you want a constitutional principle, that one has history behind it.
Filius X. Publius
	"No taxation without representation" and "consent of the governed" have equal standing. They have the same history behind them. They are closely related.

	Laws must have the consent of the governed. Justice requires that. That is what we fought for. Great Britain violated that principle. They imposed taxes on us even though we had no representation. It was one of many violations. The Declaration lists many more.
Blayden Balance
	Do you have any evidence of the history behind "consent of the governed?"
Filius X. Publius
	There is this quote from the Declaration of Independence:
		WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness – That to secure these Rights, Governments are instituted among Men, deriving their *just* Powers from the *Consent of the Governed* (emphasis added)
Blayden Balance
	Oh, that quote.

	Still, that is in the Declaration, not the Constitution.
Filius X. Publius
	I hope you aren’t one of those people who think that when our country’s founders declared our independence from Great Britian that they proclaimed those great principles and self-evident truths, pledged their lives, fortunes, and their sacred honor to support that Declaration, fought a difficult war for independence, governed themselves for a few years under the Articles of Confederation, and then, when trying to form a more perfect union, that the framers abandoned our principles and closed their eyes to those self-evident truths?
Blayden Balance
	Moving along . . .

	But you have to admit the Constitution did not fully treat all men equally.
Filius X. Publius
	True. Those who profited from the injustice of slavery would not agree to end that injustice.

	One problem with government of the people, by the people, and for the people, is that many imperfect humans are involved in the process. Perhaps when all men become angels we will leave such problems behind.

	As it is, this country is still committed to those principles. Our Constitution and laws reflect that commitment. Being human, we implement those principles imperfectly. But our imperfections do not cancel out our commitment.
General Ken
	Even though the Constitution doesn’t mention those self-evident truths?
Filius X. Publius
	Of course.

	The Constitution does not contain anything resembling the words "no taxation without representation." Yet Congress has recognized that rule in law.

	Residents of Puerto Rico have no representation in Congress. And they are exempt from the federal income tax.
Blayden Balance
	I will concede that point. Both "no taxation without representation" and "consent of the governed" are constitutional principles. But you still have a problem. Everyone has representation in Congress.
Filius X. Publius
	Having representation in Congress does not assure we have the consent of the governed. The framers recognized that.
General Ken
	A bold statement. Can you support it?
Filius X. Publius
	Let’s start with the biggest example. Representation in Congress differs between the House and the Senate. States have different numbers of Representatives. All states have the same number of Senators. The framers compromised to create that difference. We need to recall why that compromise was necessary.

	There were two competing blocks of states in the convention. One group was the states with the larger populations. The other group was the states with smaller populations. Both groups wanted to have control of Congress. They feared that if they were in the minority that federal taxes, tariffs, and regulations would target them. Both groups wanted the protection of being in the majority.
General Ken
	But they had fought together in the revolution. Why would they distrust each other?
Filius X. Publius
	In the revolution they had a common enemy that was governing them unjustly. By the time of the Constitutional Convention, they were governing themselves. They had won the fight to have a voice in the government. They had moved on to contending among themselves for control of the government.
Matthias
	Power corrupts. Even in a republic.
Filius X. Publius
	The Convention deadlocked on representation. The small states wanted to continue one vote for each state. The large states wanted votes based on population. Both groups favored the representation rule that would give them the majority of the votes in Congress.
Spawn of the Torch Lady
	Not much of a surprise.
Filius X. Publius
	Under either method every state would have representation in Congress. Yet none of the states, large or small, thought that was enough. They all feared that merely having representation in Congress would not ensure fair treatment.

	The Convention was in danger of failing. The only way forward was if one side or the other gave up on this issue, or both sides reached a compromise. Otherwise they would have dropped the attempt to improve the Articles of Confederation. And we wouldn’t have our Constitution.
Blayden Balance
	They did compromise. Representation in the House is based on population. Representation in the Senate is equal. Each State has two senators.

	Problem solved.
Filius X. Publius
	The framers didn’t think so.

	The compromise resolved a sticking point in their deliberations. But it did not resolve the underlying issue.
General Ken
	Which was?
Filius X. Publius
	How do you make the majority treat the minority fairly when writing the laws? How do you make sure that the laws will have the consent of the governed and not just the consent of the majority?
General Ken
	So did they have a solution for that? And if so, what was their solution?
Filius X. Publius
	Yes, they found a way. Their solution still has equal rights for everyone. And has majority rule. The majority may impose a burden on the minority, but the majority must bear the same burden.

	The laws have the consent of the majority. When the laws put the same burdens on everyone, then the laws have the consent of the majority of those governed by that law.
Blayden Balance
	That works. We still have equal rights because everyone gets to vote for or against the law. The majority must respect the rights of the minority. They must treat the minority as well or as poorly as they treat themselves.

	An elegant solution.
Filius X. Publius
	The problem comes up when the minority has a greater burden. Then the law is unjust, unfair and unconstitutional.
Blayden Balance
	With a just law the burden is the same for everyone. Then the majority of those who must carry the burden have given their consent to the law.
General Ken
	But there is nothing even close to that spelled out in the Constitution.
Filius X. Publius
	We don’t need to spell out the words. What matters is if we apply the principle the words express. "No taxation without representation" is part of the Constitution. Even though those words don’t appear in the Constitution, either.

	The majority rules. But it must treat the minority as well or as poorly as it treats itself. We can see that principle applied in multiple places. The framers didn’t trust mere representation in Congress. They wanted to make sure laws would have the consent of the governed. They wrote this principle into the Constitution. Some examples:
		All Duties, Imposts and Excises shall be uniform throughout the United States
		No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.
		No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another
		No Title of Nobility shall be granted by the United States
		Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State
		The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
		No State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
		A Majority of each (house) shall constitute a Quorum to do Business
General Ken
	Banning titles of nobility? Isn’t that just a reaction against King George III? The king they had rebelled against?
Filius X. Publius
	No. Titles of nobility endanger equal rights. Those with titles will assume that they should have greater rights and privileges than the rest. Others might defer to them because of their titles.
General Ken
	Why need a majority for a quorum? And how exactly does that protect against injustice?
Filius X. Publius
	For laws to be just, they must have the consent of the governed. Getting consent needs everyone present and paying attention. Sneaking a bill through Congress doesn’t count as getting consent.
General Ken
	They carried the principle down to that level of detail?
Filius X. Publius
	Consent of the governed is more than an important principle. It is fundamental to justice.
Blayden Balance
	What about a split that was something other than big states versus small states?
Filius X. Publius
	They thought of that. The minority might be a group of individuals, or even a single individual. The framers tried to protect groups and individuals.
		The Congress shall have the power . . . To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States
		The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States
		No person shall be . . . deprived of life, liberty, or property, without due process of law
		Nor shall private property be taken for public use, without just compensation
		Neither slavery nor involuntary servitude . . . shall exist within the United States, or any place subject to their jurisdiction
		No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
		Nor deny to any person within its jurisdiction the equal protection of the laws
Blayden Balance
	Impressive. Even convincing. But not enough.
Filius X. Publius
	Why not?
Blayden Balance
	You have shown that the consent of the governed is a constitutional principle. However, the income tax has the consent of the governed. The law covers the majority as well as the minority. Therefore it meets the consent of the governed test.
Filius X. Publius
	No, it does not.

	The burden is not the same on both groups. In 2022, at the low end of the income scale, 52% of the taxpayers paid only 3% of the total income tax. At the high end, 5% of the taxpayers paid 63% of the total income tax.
Blayden Balance
	But the tax is based on income; we should expect those with higher incomes to pay more in taxes.
Filius X. Publius
	Good point. As people earn higher incomes, their taxes should go up. If we all share the tax burden fairly, any group’s share of the income should match its share of the tax.

	However, the current income tax fails even when you consider income. To update that example, in 2022:
		A majority of the taxpayers (52%) earned 12% of the income, but paid only 3% of the taxes.
		A minority of the taxpayers (5%) earned 40% of the income, but paid 63% of the taxes.

	The majority does not carry the same burden as the minority. In fact, the tax rate on that 5% minority was more than six times the tax rate paid by the majority.
Blayden Balance
	I agree. That means the progressive income tax does not have the consent of the governed. It is unconstitutional.
Tall, Dark, and Handsome
	The rich should pay their fair share!
Filius X. Publius
	Everyone agrees with that. But if we discuss the rich’s fair share, then we have some other questions.
	● What is their fair share? 90 percent of their income? 75 percent? 50 percent? 10 percent? We must decide this question with a number, not just say that the rich should pay "more."
	● Shouldn’t everyone pay their fair share? Is there any group that does not have to pay their fair share?
	● Shouldn’t the fair share be the same for every group? Why would one group’s fair share differ from the rich’s fair share?
	● If we have equal rights for all, then shouldn’t the "fair share" be equal for all?
General Ken
	But everyone agrees that the rich should pay more than those with lower incomes.
Filius X. Publius
	A flat tax does that. Half of one million dollars is a lot more than half of $80,000.
General Ken
	But does it really matter that the rich are a minority? They chose to be in that minority by earning so much more money that everyone else.
Filius X. Publius
	What about trans-gender people? They chose to become trans-gender. Would it be ok with you if we charged them a higher tax rate?
General Ken
	No, but that isn’t the same thing.
Filius X. Publius
	You’re right. That it isn’t the same thing, but it follows the same rule you just proposed. If it is ok to punish the rich because they chose to earn "too much" money, why isn’t it ok to punish the trans-gender because they chose to be trans?

	You can’t say that some minorities have equal rights because we like them, but deny other minorities equal rights because we don’t like them. That position completely abandons equal rights. It denies the self-evident truths we founded our country on. God created all men. God granted each of us equal rights.
Tall, Dark, and Handsome
	But the rich should pay even more than they pay now. Otherwise it isn’t fair. If we don’t tax the rich at a higher rate we won’t be able to achieve economic justice!
Filius X. Publius
	So you are willing to give up equal rights under the law? If the majority punishes an unpopular minority, then we don’t have equal rights. We won’t have justice.

	What about economic justice and social justice? They are impossible once you’ve thrown out justice. How can you protect any minority’s rights after you have abandoned equal rights?
Tall, Dark, and Handsome
	If we don’t punish the rich then that won’t be fair.
Filius X. Publius
	Anyone can toss around the word "fair" in careless ways when it is just talk. When it comes to the laws of our nation, we must stick to the self-evident truths that form the foundation of our country. Those truths guided the writing of the Constitution. We should be faithful to those truths in writing all of our laws, including the income tax.

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