Monthly Archives: June 2006

The Source Of Our Rights

Massachusettes Governor Mitt Romney is campaigning in favor of that state’s ballot initiative to ban gay marriage, which is on the ballot in July. In the course of his campaigning, he has managed to say something substantive that so blatantly reveals a political philosophy completely at odds with the Founding Fathers.

BOSTON –Gov. Mitt Romney, renewing his support for a ballot question banning gay marriage, said Wednesday it’s the job of voters — not the courts or lawmakers — to define what constitutes a civil right.

“Who’s going to tell us what a civil right is and what’s not? Well, the people will,” Romney said at a news conference calling on lawmakers to allow a vote on a proposed amendment to the state constitution that would ban same-sex marriage here. That vote is scheduled for July 12.

Supporters have long cast same-sex marriage as a civil right that should not be subject to a popular vote, likening it to the desegregation battles of the 1950s and 1960s, where the courts played a central role in expanding rights for blacks.

Yet Romney, during a Statehouse news conference attended by Cardinal Sean O’Malley and other religious and civil leaders, said that in a democracy, nothing is off-limits to voters, even the definition of civil rights.

“We have a Constitution. We can look in there and say, ‘Does it say here you can vote on matters unless someone can define them as civil rights?’ No,” said the Republican governor, a graduate of Harvard Law School who is mulling a presidential run. “It says you vote on all matters in this country and we’ll decide what is a civil right and what’s not. So, fundamentally, we come back to the principle that the people speak.”

He added: “Is there anything more fundamental to the commonwealth and this country than the principle that the power is reserved for the people, that government is the servant, not the master?”

Hmm, well I don’t know Governor Romney, how about this little bit from a guy you may have heard of named Thomas Jefferson:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

If there is one idea fundamental to the American Republic, it is the idea that individual liberty derives not from the will of the majority — whether that be the majority of the people of the Commonwealth of Massachusettes or a majority of the members of the Supreme Court — but is an inherent part of who we are. Individual rights do not need to be recognized by the state to exist, they exist because we are free human beings and if the state fails to recognize them it is the oppressor.

The Legitimacy of Government

(This is part two of the discussion I started Sunday with Constitutions: Why the EU Will Fail.)

On Sunday, I discussed the various ways in which Constitutions can be written to describe a government. Specifically, I discussed the American Constitution, which is a document which we are mostly able to agree forms a strong foundation for the government we would like to live under, and thus considered by most Americans to uphold a government that we consider legitimate. At the same time, the proposed EU Constitution is a convoluted mess of indecipherable legalese, trampling on what its member nations consider to be their own sovereignty. In short, they do not see the rule imposed by the EU Constitution as legitimate, and have thus voted against it.

But what makes a government legitimate? It is not simply a Constitution, although that can be a very important part. The British consider their government legitimate, although there is no single written Constitution. They consider their Constitution to be the amalgam of common law, Parliamentary acts, and judicial tradition. Earlier tribal societies likewise had no written Constitution, but yet considered their governing rules to be legitimate.

Whether or not a government is legitimate rests on one very simple basis: whether the overwhelming majority of people living under that government recognizes its legitimacy.

In the middle of the 18th Century, the American colonists were increasingly feeling as if the British crown was ignoring their rights as Englishmen. They were heirs of the Magna Carta and the Glorious Revolution, and yet the King was increasingly infringing upon their affairs with taxes and regulations that they considered onerous. In short, the King and Parliament were treating the colonists as if they were subordinate to Englishmen, not as if they were Englishmen.

Now, at the time, it is not that Americans though taxation was illegitimate. Americans were not searching for anarchy, they were searching for a just, legitimate government that respected and protected their natural rights. They didn’t object to taxation, they objected to taxation without representation. They didn’t object to being under the rule of a government, but they objected to the arbitrary rule of men.

The situation of the Americans under British rule really wasn’t all that bad. America was a frontier, where many of the edicts of the British couldn’t reliably be enforced. The taxation of the Crown was nowhere near the levels of taxation in almost any major nation. But the colonists rebelled against one of the world’s two superpowers, barely winning independence, because they refused to live under a government they considered to be illegitimate.

Fast forward a couple of hundred years, and look across the globe to Iraq. Much like the American colonists who wouldn’t submit to British rule, the Iraqis of today won’t submit to American rule. It doesn’t matter whether that rule is better for them than things were under Saddam. It doesn’t matter if we were to set up the means to ensure that they’d have a Bill of Rights protecting the very same freedoms that we have here in the United States. To the Iraqis, we are, and always will be, an occupation force. And as long as they perceive themselves as living under foreign rule, that rule will be considered illegitimate, no matter how well-intentioned.

For us to succeed in Iraq, the Iraqis cannot see the endgame as America’s success. For the Iraqis to consider the government they live under to be legitimate, they must see it as an Iraqi government, not an American government. It’s a dangerous razor-blade we must walk. We must constantly show that we are turning over government and security to the Iraqis, but we cannot do so before they’re ready, as the power vacuum will be filled by the terrorists and insurgents. The Iraqi people won’t consider the rule of people like the now-neutralized Zarqawi to be legitimate, but tyrants often take power, and the Iraqi people may have little to say in the matter.

So that brings us to a major point. Governments must have certain aspects to be considered legitimate. The experience of both the American revolution and the Iraqi occupation show us that a government, to succeed, must be accountable to its citizens. Governments who are not accountable can only preserve their place– as we saw in the Soviet Union or Iraq under Saddam, and as the British attempted– by force.

And that forces us to look at our own government. When the notreason folks ask us minarchists and classical liberals where our own government draws its legitimacy, we tell them that it draws its legitimacy from the fact that the vast majority of our populace has agreed that it is legitimate. While that doesn’t mean that the social contract is something every individual agreed to, it does mean that if they are to damage that legitimacy, they must convince a critical mass large enough to get the rest of the majority to doubt the legitimacy. Once that doubt is there, their job is half won.

But it cuts both ways. We classical liberals ask why it’s legitimate that our government should have an income tax, or why it should allow things like Kelo to stand. We ask why our government has the authority to replace our private charities with their own distribution of our tax dollars, or why our government thinks it is their responsibility to control education, or health care, or the stock market, or anything else they’re shoving their grubby hands in.

Why is it legitimate? Because our populace largely believes it is. While we classical liberals expect our government to live within the means provided in the Constitution, the majority asks for bread and circuses, and act as enablers for the power over which the statists lust. Our government has been accountable to those who demand more government.

But times are changing. I believe that recent approval ratings for our Congress show that the majority are starting to believe that the government is becoming increasingly unaccountable. They see that government has become accountable to furthering its own power and to satisfying the wants of special interests– not of helping ordinary citizens. And as information and media are increasingly dominated not by big interests, but by individuals, I think that feeling of unaccountability will increase.

In my estimation, we’re on a tipping point in society. The feeling of ordinary Americans in the legitimacy of their government is failing. While they ask their government to protect them from terrorists, the government is arguing ceaselessly over gay marriage and flag desecration. And as we fight against this stupidity, I am reminded of something. History isn’t written by the majority, it is written by small groups able to sway opinion. This is as true today as it was when Samuel Adams suggested it 2 centuries ago:

It does not require a majority to prevail, but rather an irate, tireless minority keen to set brush fires in people’s minds.

The American people all revere the Constitution, but cracks are forming in the government that has grown out of control and exceeded the specifications that document lay out. Those cracks aren’t simply in its ability to do its job, but they are cracks in the publics belief in the legitimacy of that government to continue to exist. How do classical liberals and minarchists make changes? We don’t need to dynamite the structure. A few well-placed stresses with crowbars will open those cracks up and bring the whole thing down. The revolutionaries had pamphlets, and we have blogs. Both are proverbial crowbars, and they’re working better every day.

Constitutions: Why the EU Will Fail

This will be part one of a two-part post (part 2 is here), discussing the legitimacy of government. In all senses, government is intended as a voluntary social contract in which citizens give power to the government in exchange for protection of rights. In the case of modern government, this is typically done with a Constitution.

But what goes into the making of a Constitution? What determines whether a Constitution will be successful or unsuccessful? To help illustrate, let’s look at two examples.

First, the United States Constitution. We, as Americans, look back upon this document as if it was holy writ, with the virtues of all that is good in the world shining down upon the Founding Fathers as they wrote this document. And, in many ways, when you see the incredible speed and stability with which America has found her place as the leader of the free world, you glorify those Founding Fathers as if the document itself is perfect.

But is it? Ben Franklin didn’t entirely think so:

In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.

As I’ve pointed out before, the men who founded our country were not perfect, nor did they expect government to be perfect. Nor, then, do they necessarily think the document they were creating was perfect. It is well known that at the time of the Revolution, the Declaration of Independence, and the creation of the Constitution, that many of its proponents had a moral qualm with slavery. How a document asserting that all men were endowed by their creater with the right of Liberty be drafted in a place where slavery was practiced? How could we have an official Constitution which declared some human beings only 3/5ths equal? Even a slaveowner like Thomas Jefferson understood the hypocrisy of declaring all men equal while holding some in bondage. But to create the best document and best government they could, they had to make compromises. And they left open the amendment process, to fix their unfortunate compromises in the future.

I look at the United States Constitution as the foundation for a house. When you build a house, you don’t need a foundation that drives 100 feet into the soil. Nor do you need 3-foot thick concrete walls to support that house. You look at the reasonable size of the house you’re trying to build, and develop a foundation which will support that house. And in the future, if you want to build an addition, you may need to extend the foundation, which we do through the Amendment process.

If anything, the current problems we have in this country stem from the fact that we have tried to build a house (government) too large for its foundation (Constitution). Instead of understanding this error, and making sure that the Constitution is amended to strengthen that foundation, we have simply started adding weight, completely disregarding the Constitution. As such, that foundation we started with is crumbling, and threatens to take the entire structure with it.

Our Constitution, while not perfect, gives a very strong foundation for the sort of government the Founders intended, one of limited power and scope. It is not strong enough to support a government that provides cradle-to-grave sustenance, a fact that has been ignored for the last century.

Now, compare this to the Constitution proposed by the EU. I should warn before you click over that it’s a nearly 2-megabyte, 485-page PDF file. 200 pages or so define the EU itself, and then another 200 pages are devoted to protocol related to previous treaties between the member nations. What the United States accomplishes in a document that will fit in a pocket requires a volume for the EU.

If you compare the US Constitution to the foundation for a house, you must then compare the EU constitution to plans designating its floorplan, exterior, and window treatments. In short, you have created something that is nearly impossible to agree upon. While the US Constitution largely defines basic rules of government that are easy to form consensus, the EU asks you to look at an entire house and determine if you like it.

What happened when the French and the Dutch voted “No” on adopting the Constitution? Basically they were saying they prefer a split-level ranch with stucco exterior as their house, and the Constitution was offering them English Tudor. When your constitution moves beyond basic structure of the government, stepping into the realm of minutiae, you’re quickly going to find yourself alienating constituencies that disagree with a bit of minutiae that harms them in particular, even if the rest of the government is to their benefit. And when you have a 485-page Constitution, it’s going to be clear that nobody can even truly understand the whole implications of agreeing to it, which also works against its potential adoption.

However, there is even a more fundamental error. As I pointed out, there are 200 pages of the document devoted to protocol on former treaties of the member nations. This is akin to trying to build your house on a foundation of sand. If the EU wants to write a successful constitution, it must be written not based upon these treaties, but based upon making all these treaties obsolete. What needs to be written is a Constitution that tells the member nations that what the Constitution provides is beneficial to all, and is better than their previous treaties. In addition, it needs to say that these treaties are no longer acceptable, because the rules between members of the union should be decided by the union itself.

The EU is trying to become as powerful as the US, but doesn’t understand that to do so you need to trample on sovereignty a bit. In some ways the United States became successful because our Constitution designed a union that all States must be bound by, and as a part of this Union, did all it could to make travel and commerce between states as easy as possible. The EU is trying to simply codify each nation’s particular rules and protectionist practices.

At the time of the American Constitutional Convention, we had states with largely similar culture, ideals, and goals. The United States Constitution reflects this, setting up a government that each State had general agreement with. In many ways, the United States Constitution tramples on the sovereignty of each individual State, but they did so in a way that the States believed were advantageous to them. The EU has not done so. The EU has taken nations with little common culture, common language, and who each have their own nationalist streak, and tried to form them into a union that doesn’t really do what is required to unite those nations. In honesty, they are forming a treatied alliance, not a Union. And without a solid foundation, they are setting themselves up to fail.

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