This isn't easy for me. This is a touchy subject at best, and one that inflames the passions without achieving anything at worst. So I'm sitting here in my DuPont Circle hotel room with a glass of Jameson's Irish whiskey, and I'm pondering something that's been bothering me for a while.
This post a while back started me thinking about this problem, but here it is:
What, if anything, is the difference between "consent" and "choice?" Hence the title, but indulge me.
So here's the deal. Obviously, at Law there is no difference between the two concepts - if you consent to something, you've chosen it, and vice versa.
But seriously, if (for one rather unpleasant example) a woman submits to sex so that her husband will stop hitting their children, certainly she's "consented," but can she be said to have made a free choice of her own volition? Courts are starting to pick apart this question in this particular context, demanding a higher standard of proof for the defense of consent in rape cases, but what about other contexts?
For example, let's suppose that a person holds a franchise in a particular election. Let's also suppose that one of the sides in that election has proceeded to bombard this voter with so much information that is at best misleading and at worst false about the other side that our voter is utterly confused. Can their franchise be said to have any meaning?
If a campaign is entirely about Issue X, has the voter chosen to be governed with regard to Issue Y? Of course, we sort of fiat the idea that yes, they have, but is that RIGHT?
Should Presidential candidates be required to offer substantive information on how they will govern in plain language on every issue?
This problem has some very wide implications. In addition to the question of electoral legitimacy and the question of sex (did you ever think you'd see the phrases "electoral legitimacy" and "sex" conjoined?), there are, to my mind, issues of corporate governance - and not just in business, but also (and especially) in the non-profit and religious world. If a congregation or a member body vests governance power in a particular individual for a particular reason, how can the membership protect themselves from action contrary to their interests - especially if the individual in question was vested with a vast authority when the organization was small and now that it's grown, their authority should be circumscribed?
I'm not entirely sure how to crack open this question such that the distinction I'm making has any meaning. I'm especially unsure whether or not that question has an answer that's meaningful outside of a fact-intensive context. I'm not sure that there are any general principles that can be articulated here. But it's a conversation that needs to be had.