Time: Thu Feb 27 17:26:40 1997
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Date: Thu, 27 Feb 1997 17:11:55 -0800
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From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: good essay on government legitimacy

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------------------- Begin forwarded message ---------------------

                  STOP ALL FEDERAL ABUSES NOW!
   S.A.F.A.N. Internet Newsletter, NO. 308, February 21, 1997


IS THE AMERICAN GOVERNMENT LEGITIMATE?

by Paul A. Clark (http://www.firstthings.com)

Prior to  his death  I asked  the great  Catholic thinker Russell
Kirk if  he considered  the American government to be legitimate.
His answer without hesitation was, "Certainly not!"

When I  asked him  to explain  further he  said that the American
government was  "manifestly unjust."   That  is, its  policies in
many different areas were evil without question.

The question  of legitimacy  is  often  sidestepped,  because  it
arouses visions  of armed  revolt.  This fear is both exaggerated
and misplaced  -- the  illegitimacy of a regime is not ipso facto
justification for  revolt.  There can hardly be a more central or
important issue  today then  the moral legitimacy of a government
to make law.

A dispute  on this  issue was  set off  some weeks  ago when  the
religious journal  "First Things"  published a series of articles
questioning whether the

U.S. government  had become  illegitimate.   None of the articles
actually argued  that the  government was illegitimate, only that
it was  in danger  of becoming  so.  It was in danger of becoming
illegitimate for two reasons, according to the contributors.

First, it  was ruling  unconstitutionally,  and  therefore  ultra
vires, across the board.

Secondly, its  decrees were largely unjust, and doing more damage
to the common good than supporting it.

Dr. James  Dobson, in  the January  Issue of "First Things", went
further than  any of  the original  contributors and definitively
proclaimed the  federal  government  illegitimate:  "whether  you
believe government derives its legitimacy from the consent of the
governed or  from a  higher source,  our government  has  clearly
transgressed  its  bounds  in  such  a  manner  as  to  lose  its
authority."

An  occasional   unconstitutional  or  unjust  action  would  not
delegitimize a government, but today the federal government -- in
all  three   branches,  systematically   ignores   constitutional
limitations on  its authority.   Dobson's conclusion therefore is
correct, but  I  would  argue  that  the  federal  government  is
illegitimate for not just these two reasons but for at least four
other reasons.

In addition  to ruling unconstitutionally and unjustly, there are
several basic  flaws in  liberal democratic  theory which seem to
invalidate our current system of government.


1.   Denial of the common good.  All traditional philosophers and
     theologians agree  that the  purpose  of  government  is  to
     support and  enforce the common good.  A government or a law
     is only  legitimate insofar  as it supports and protects the
     common good.   The philosopher Alistair MacIntyre points out
     that liberal  democratic theory denies the very existence of
     a common good.

As De  Grouchy noted in a recent book on democracy, "The starting
point for  liberalism is the individual, and therefore individual
rights, rather  than society  and  the  common  good."    Liberal
democracy is  based upon  the denial  of the common good, and the
affirmation that there are only individual competing goods.  When
a government  denies the  existence of  the common good it denies
its very  reason for being.  According to MacIntyre, a government
which denies its reason for being cannot possibly be legitimate.

More than  simply denying  the  common  good  the  government  is
enforcing  an   individualistic  conception  which  is  radically
opposed to  the common  good.  What could be more clearly opposed
to  the   common  good   than  the   oft  repeated,  and  absurd,
pronouncement of the Supreme Court that, "At the heart of liberty
is the  right to  define  one's  own  meaning  of  existence,  of
meaning, of the universe, and the mystery of human life"?

MacIntyre notes  that many  of the  same things that a legitimate
government  would  do are also done by liberal democracies,  such
as punishing  criminals.   But all  tyrannies punish  many of the
same crimes  as legitimate regimes.  If a ruler explicitly stated
that he  did not  rule for  the common  good,  but  for  his  own
personal good,  and was  acting on  that theory,  his rule  would
clearly  be   illegitimate.    Liberal  democracies  are  not  as
obviously violating  the common good, but they too are based on a
theory which denies its existence.


2.   Liberal democracy  denies the  existence of  a  higher  law.
     John Paul  II in  Evangelium Vitae  has  written  that  "the
     acknowledgement  of  an  objective  moral  law  ...  is  the
     obligatory point  of reference  for civil  law itself."   He
     suggests  that  any  government  which  does  not  recognize
     constraints imposed  by a  higher moral  law must ultimately
     end up in totalitarianism.

More basically  the pope  says that  if governmental power is not
exercised in  reference to  higher law, it lacks authority and is
simply  violent   extortion.    A  government  which  denies  the
existence of a higher moral law denies the very thing which gives
any government legitimacy.

In an  article attacking those who raise questions of legitimacy,
David Brooks,  writing in  The Standard,  openly rejects  he idea
that civil  law is  subject to  any higher  law.   He asks, "what
happens, in  short, when  the conservative  finds  he  loves  his
ideals  more   than  he   loves  his  country?'  He  goes  on  to
characterize people  who put  ideals of  justice above  political
obedience as dangerous radicals.

The Apostles  when arrested for preaching told their persecutors,
"We must obey God and not man."  Any system which demands that we
place obedience  to human  law above  obedience to  divine law is
corrupt.   That is  why a government which does not recognize any
higher claim  of divine  law is  illegitimate.  Increasingly, the
federal government is ruling any reference to transcendent law as
out of bounds for political consideration.


3.   Denial  of  the  principle  of  political  community.    The
     Thomistic definition  of law is "An ordinance of reason, for
     the  common   good,  made  by  one  who  has  care  for  the
     community."   An important element of law is that is be made
     for a community.  Augustine defines a political community as
     group of people who share a common conception of justice and
     a common  understanding of  the common good.  He argues that
     the  Roman  Empire,  because  it  did  not  share  a  common
     conception of  justice and  a common set of goals, was not a
     community and therefore was not legitimate.


The Roman  Empire, was  a tyranny, says Augustine, because it was
an artificial  force imposed from above upon real communities.  A
group of  people who  share a  conception of justice and a common
set of  goals can  be said  to have  an organic  community.   The
enlightenment theory,  upon  which  liberal  democracy  is  based
denies  the   existence  of   organic  communities   and  instead
substitutes artificial communities.

Enlightenment theorists,  in  explicit  rejection  of  Augustine,
defined a  country as  a piece  of territory with a single ruler.
There is  no organic unity whatsoever, it is purely artificial in
that everyone  who is  subject to  the power of the government is
part of the country.

The difference  between the  traditional concept  of a patria, or
homeland, the  modern nation-state  has been expressed quite well
by MacIntyre:

     Patriotism cannot  be what  it was,  because we  lack in the
     fullest sense  a patria.  ...  Patriotism is or was a virtue
     founded on  attachment primarily  to a  political and  moral
     community and  only secondarily  to the  government of  that
     community,  but   it  is  characteristically  exercised   in
     discharging responsibility in and to such government.

When  however   the  relationship  of  government  to  the  moral
community is  put in  question both  by  the  changed  nature  of
government and  in the  lack of moral consensus in the community,
it becomes  difficult any  longer to  have any  clear, simple and
teachable conception of patriotism.  Loyalty to my country, to my
community --  which  remains  unalterably  a  central  virtue  --
becomes detached  from obedience  to the government which happens
to rule me.  (After Virtue, 254)

Much of the current debate inspired by questioning the legitimacy
of the  federal government,  is inspired by nationalists who deny
the distinction  between natural and artificial communities.  For
instance, Midge Decter, writing a response in First Things to the
original series  of articles writes, "for heaven sakes, do not be
reckless about  the legitimacy  of this  country  (calling  it  a
regime' does not disguise what is at stake here)."

No one ever suggested that the country was illegitimate, only the
government (that  is the  regime.)   Only an  extreme nationalist
could confuse  the country  with the  government.  Like Louis  IV
saying, "The  state, it  is me," Decter says, "the country, it is
the government."

The implication  is that  there is  no such  thing as  a  natural
community.   The only  thing that  unites people politically is a
government, according  to the  enlightenment theory.    When  the
government ceases to exist the country ceases to exist.  But this
is nonsense.   Does France stop being France if the government is
dissolved?  Of course not.

But a  government is  only legitimate  if it  exists to  serve  a
legitimate community  -- that  is a real organic community.  If a
regime rules  over a  group of  people who have nothing in common
except that  they are  ruled by  the same  regime, that  is not a
political community at all.

By seeking  to destroy  organic communities and replace them with
an artificial  one, the  nation state places itself in opposition
to the  very thing  -- the community -- which it is the task of a
legitimate government to protect.

As an aside we could ask, how could we have a real community in a
country as  large and  diverse as  America.  It is possible if we
return to  the constitutional  arrangement of  local sovereignty.
In a  federation the  nature of  a community is changed somewhat,
because each  of the  members states,  to be legitimate must meet
the Augustinian  requirement of  being an organic community.  The
federation,  however,   is  a   community  of   states,  not   of
individuals, and  the common  good of a federation relates to the
protection of the member states from outside force.

The United  States does  not meet  Augustine's requirements for a
community, but as an association or federation of communities the
United States government could be legitimate.


4.   Violation of  the Principle  of Subsidiarity.   Pope Pius  I
     wrote that  "Just as  it  is  gravely  wrong  to  take  from
     individuals what they can accomplish by their own initiative
     and industry  and give it to the community, so also it is an
     injustice and  at the same time a great evil and disturbance
     of right  order to assign to a greater or higher association
     what lesser and subordinate organizations can do."

This is  known as  the principle of subsidiarity.  It states that
more powerful organization must never usurp functions that can be
executed by  private associations  or local communities.  Liberal
democracy --  certainly as  practiced today, if not inherently --
systematically denies  the principle of subsidiarity and in fact,
teaches exactly the opposite.

According to  liberal democratic  theory, the nation state as the
highest expression of the popular will is the usual authority for
carrying out any and all possible actions.  Local governments are
reduced to  nothing more  than administrative subdivisions of the
nation state.  Rather than allowing private charities to care for
the poor, the modern welfare state delegates to itself the direct
care for  every individual.   This  is explicit  in many  liberal
democratic writings.

The UN Declaration of Rights, for example, states "Everyone, as a
member of  society, has  the right  to  social  security  and  is
entitled to  realization, through  national effort."  Notice, not
through private  efforts, or  local efforts, but through national
efforts.   The theory  of the liberal welfare state is that there
is nothing  which is  not the  proper  concern  of  the  national
government --  even things  which are  not  the  concern  of  any
government.

Most of  what the federal government does, could be left to lower
levels of government.  To use one more flagrant example, the vast
majority of  parks and  public lands  in the  United  States  are
operated by  the federal  government.   There is  no reason  that
operating  parks   could  not  be  left  to  state  or  municipal
governments, which operate parks quite efficiently.

It would be simple to say that the modern welfare state is a form
of socialism,  and socialism  is always  illegitimate;  but  this
criticism is  more basic  even then  that.  As Pius says, it is a
disturbance of  right order  to usurp  the function of subsidiary
communities.     Any  properly   ordered  political  system  must
recognize the  principle of subsidiarity as a basic blueprint for
its operation.  Liberal democracy rejects the principle entirely,
and hence cannot be legitimate.

     Conclusion.  The assertion that a government is illegitimate
     is normally  assumed to be some sort of call for action, but
     not necessarily  so.   Because a  government is illegitimate
     does not mean it must be resisted, it only means that no one
     has any obligation to obey it.

In the  case of  the American  government,  because  it  is  also
ordering   unjust   and   unconstitutional   things,   there   is
additionally an obligation to disobey many of its pronouncements.
Since the  traditional theory  of armed  rebellion requires  that
there be  a reasonable  chance of  success, that  would  seem  to
preclude any  such attempt to overthrow the federal government at
this time.

Additionally, St. Thomas stated that resistance to unjust rule is
first and  foremost the  responsibility of other public officials
rather than of private citizens.

All of the reasons for the illegitimacy of the federal government
may not  apply to  state government,  and may not apply at all to
local government.

By and  large, I  would say  that many  local governments  in the
United States  are not  based on these liberal democratic ideals,
and hence  remain legitimate,  and citizens  in such  communities
remain bound to accept their authority.

In her  excellent commentary  in First  Things, Mary  Ann Glendon
wrote, "Local  governments, families,  religious groups, workers'
associations, precinct organizations and the like are our schools
for citizenship'  as  well  as  our  seedbeds  of  character  and
competence.   They are the real counter forces to the excesses of
market and state."

What then  does resistance to the federal government (and perhaps
many state  governments) entail?  It is  first  and  foremost  to
protect these  "seedbeds of  character" from  destruction by  the
Leviathan.   As Russell Hittinger suggested in the original First
Things  symposium,  elected officials -- especially local ones --
have a  strict obligation  to enforce  the demands of justice and
the constitution,  and refuse  to simply  execute federal  edicts
which are both unjust and unconstitutional.

While private  citizens may be unable to influence the conduct of
the federal  government they  can certainly insist that the local
government live  up to  its requirements  to protect its citizens
from federal excesses.

The assertion  that the federal government is illegitimate is not
a call  to  anarchy.    It  is  a  call  to  restore  the  proper
constitutional  order   of  America,  beginning  with  our  local
communities.    It  is  with  the  local  communities  that  real
constitutional authority  and police  power reside.  The struggle
is about  restoring the  tranquility of  order against the social
anarchy imposed by the current establishment.

                             #  #  #

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

"Although we  give lip  service to the notion of freedom, we know
that government  is no  longer the  servant of the people but, at
last, become  the people's  master.   We have stood by like timid
sheep while  the wolf  killed -  first the weak, then the strays,
then those  on the  outer edges  of the  flock, until at last the
entire flock belonged to the wolf."

"From Freedom to Slavery," by Gerry Spence

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Paul Andrew, Mitchell, B.A., M.S.    : Counselor at Law, federal witness
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