Time: Thu Feb 27 17:26:40 1997 by primenet.com (8.8.5/8.8.5) with SMTP id RAA00810; Thu, 27 Feb 1997 17:03:28 -0700 (MST) Date: Thu, 27 Feb 1997 17:11:55 -0800 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: good essay on government legitimacy [This text is formatted in Courier 11, non-proportional spacing.] ------------------- 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 +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ SAFAN %Dot Bibee (DotHB@aol.com) Ph/FAX (423) 577-7011 SAFAN Internet Newsletters are archived on http://feustel.mixi.net +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ ----------------------------------------------------------------- To subscribe, email majordomo@majordomo.pobox.com with the message "subscribe ignition-point". http://ic.net/~celano/ip/ --------------------- End forwarded message --------------------- ======================================================================== Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness email: [address in tool bar] : Eudora Pro 3.0.1 on Intel 586 CPU web site: http://www.supremelaw.com : library & law school registration ship to: c/o 2509 N. 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