• Jeff Utsch

Since When Does Consent Matter When You Govern Arizona?

Representation. Consent.


The Revolutionary War was fought over these two principles.

“No taxation without representation” dealt with these two pillars of our founding, as the colonists refused to obey a law to which they did not consent directly or through elected representatives at the legislative level.

If the population abandoned these principles, they entered a state of slavery and were subject to the arbitrary power of despots, they believed.

To our founders, this was a moral question — not one of politics.

Clear rights-and-wrongs had been established by English-law dating to the Magna Carta. The issue was not so much about the tax itself, but everything to do with, “Did we consent to this?”

Parliament and the Crown argued that the Colonists did consent by “virtual representation”, where the paternal order in London had the Colonists best interests at heart and would do nothing to intentionally harm them.  Each tax was in their best interest, they reasoned. (What a shame the Colonists could not see that!)

Those Colonists weren’t nibbling.

Today, right here in Arizona, we face a similar dilemma.

Because Arizona Governor Doug Ducey was duly-elected, he believes the people are represented in him and he has the authority to act with emergency-powers granted under the Arizona Revised Statutes (ARS), as he interprets them.

Yes, the assumption of executive duties might be a reasonable stance when laws are clear, concise, and constitutional. But, when the Arizona Revised Statutes from which he draws his emergency powers are ambiguous, at best, and can be interpreted to give arbitrary powers, then the question must be: “Have the people consented?”

“What is called a republic…is naturally opposed to the word monarchy, which means arbitrary power,” Thomas Paine wrote.

The Founders equated arbitrary power to tyranny. No free republic can exist with it.

This, friends, is not a minor problem.

Here are questions that must be addressed to ascertain if the people have given their consent, especially as it relates to emergency powers.

  • Does the law grant power to the government that could infringe upon the unalienable rights of the people?

  • Does the law grant power to the government that could infringe upon individual rights protected by the Federal and State Constitutions?

  • Is the law written in ambiguous language that can be interpreted broadly and subject to arbitrary abuse by the executive branch?

  • Was the law passed by a prior Legislature?

  • Is the current legislature actively representing the people by auditing executive actions on this law, resisting arbitrary power-grabs, discussing and rewriting the law if necessary to clarify ambiguities and ensuring the rights and interests of individuals are weighed against coercive government measures?

If the answer to the first four questions is “Yes,” then, unless the current legislature is actively representing their constituents with a close-eye on executive actions, then the people could not have given their consent. Orders from the Governor are, therefore, void.

According to Ducey’s current interpretation, he has almost plenary powers anytime he calls an emergency, for whatever reason he wants.

You have heard of legislating from the bench? This is legislating from the throne.   We are OK with this?

With our legislative branch in a state of dormancy, are we satisfied with this “virtual representation?”

Like George III, our governor argues that he is doing nothing that isn’t in our best interest, so we should just comply. In his defense, other governors around the country are doing the same or worse. Yet, that relativistic-metric does not make it lawful or right.

Here in Arizona, our emergency laws are, at best, cloudy, and Ducey is taking advantage. If laws are unclear, especially in a crisis in which precedents that unilaterally infringe on our liberties are set regularly by our governor, the legislature must be involved.

But, the legislature is not involved.

It has not been invited to the party. Nor does it want to be.  Yes, there may be some good men-and-women comprising the House and Senate, but, overall, they have failed to represent us at a singular- time in history when we most need them.

They are too happy to float with the current. Let it take them where it will. It is too much work to try and clarify or change these ambiguous laws. It is hard to reign in the governor. It is not politically expedient. Their thoughts: We clean this mess up later. We cover it next session.  These precedents of unbridled power will not affect us in the future.  We still defend the Constitution, but these are trying times and, after all, “Who am I?”

Yeah, right.

These excuses for passivity and incompetence do nothing for “WE the People.”

The two houses are AWOL, deserters, shirkers of the largest magnitude shrinking from duty of upholding the Constitution and protecting liberties. Yes, I come down hard. I do that when our way of life is at risk.

Even if the public agrees with the Governor’s actions, it should be frightened at the precedents set and must wonder, as our founders did, from whence did these powers come, and did we consent?

The answer is simple, “no.”

No, we did not give our consent because we have not been represented. Our representatives, those who’ve taken an oath to serve us, seem to have taken another vow – one of silence.

“(N)o laws have any validity or binding force without the consent and approbation of the people, given in the persons of their representatives, periodically elected by themselves,” said Alexander Hamilton.

We are guaranteed a republican form of government.  This implies representation and limited powers.

We do not, at this moment, have a republican form of government in Arizona.  It is up to us to get it back and not sit complacent as it dissipates.

“Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people,” said John Adams.

He was talking to all of us, the governed and the elected, alike. How disappointed he would be.

Our legislative branch fails the test. We suffer as a result. It’s time we awoke and demand our voice be heard by legislators.

If it doesn’t respond, noncompliance is a lawful and moral alternative.

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