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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