Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

June 27, 2006

The Legitimacy of Government

by Brad Warbiany

(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.

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  • http://n-k-1.blogspot.com James

    “When the No treason! 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.”

    1. Bull. Majority approval of an institution, at most, lends legitimacy only to the acts of that institution which affect only the majority. The majority has no special right to tax, control or regulate you, nor do they have a right to delegate such powers.

    2. Bull. The U.S. government doesn’t even take an official position on moral legitimacy. It has the power to do what it wants and that’s that.

    3. Bull. The majority within the country, like the government itself, take no position on the government’s moral legitimacy. They simply believe that the existence of the government is inevitable, or necessary to do various things, etc.

  • http://unrepentantindividual.com/ Brad Warbiany

    James,

    The question is not whether you consider our government to be “morally” legitimate. The question is, when you are out here throwing rocks at tanks, whether the people of this country think you’re David Koresh or the student in Tiananmen Square. It’s the majority of people who decide that.

    Whether you consider the constitution legitimately applies to you, the government and the people of this country certainly think it does. That doesn’t mean government is legitimate, but it means that it exists and the support of the people is where it draws its power. To affect any change, you must damage the illusion of legitimacy.

  • http://n-k-1.blogspot.com James

    Brad,

    Offhand, I can only think of two meanings of legitimacy that would make sense in this context, the (positivist) legal kind and the moral kind. It’s practically a tautology that the institution which creates laws has legal legitimacy, so I assumed you meant the latter.

    Besides, when the NT! folks ask where the government draws its legitimacy, they are asking about moral legitimacy. By principle of charity, I assumed you weren’t responding to a question about moral legitimacy with a claim about positive legitimacy.

    I agree entirely with your second para, but I’m not sure why you include it, especially given that it contradicts your earlier claim. See:

    “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.”

    This seems to say that majority opinion is a sufficient condition for legitimacy.

    “Whether you consider the constitution legitimately applies to you, the government and the people of this country certainly think it does. That doesn’t mean government is legitimate…”

    This seems to say that majority opinion is not a sufficient condition for legitimacy.

  • http://unrepentantindividual.com/ Brad Warbiany

    James,

    The issue with moral legitimacy is that there are a lot of different interpretations of that. Like you point out in your first comment, a lot of people simply think government is necessary. I’d be in that camp.

    If you ask some people, it’s completely moral for a government to exist to protect the rights of its citizens. Those people consider government to be morally legitimate. You’re an anarchist, though, which means that you see *no* government as morally legitimate.

    Now, when it comes to positive legitimacy, I wouldn’t go so far as to call it a tautology. It can be, in some cases (i.e. he who has the gold, or in this case, the guns, makes the rules). But in the modern western world, the positive legitimacy isn’t created by the government who makes the laws, it’s granted by the people to the government who makes the laws. And those people also believe that their government is morally legitimate.

    The problem, from your standpoint, is that while we essentially have a market to choose our government, we’re all forced into the government chosen by a certain group. This is the “contradiction” you brought up doesn’t fit.

    You missed the qualifier of “overwhelming”. We’re not talking about 50%+1, simple majority voting here. We’re talking about one of the cornerstones of society, the thing that 95% of a society chooses to rest its faith in.

    I would say that the Constitution fits that mold, wouldn’t you.

    Now, when it comes down to specific government actions, things get a little more complicated. Say the government wants to create a police force to investigate and punish murderers. You’ve got your 95%. Then, the government decides it wants to steal wealth from everyone to fund social programs. Uh oh, the 95% is gone. There are huge numbers of people in this country who think that is illegitimate, and thus all the battles over doing so and not doing so. It’s not like Sweden where everyone gladly supplies the social safety net. It’s why cheating on your taxes is so acceptable in our society, because while these programs do still exist, people don’t really feel they’re legitimate enough to want to pay for them.

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  • http://www.kipesquire.com KipEsquire

    “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.”

    Your definition is flawed — and dangerous. What is “an overwhelming majority” and what becomes of those not part of it?

    Randy Barnett’s definition is better, though I am paraphrasing: A legitimate government is one for which a person subject to it has no rational basis to question its legitimacy — which can only be the case when government powers are minimized and individual rights are maximized.

  • http://unrepentantindividual.com/ Brad Warbiany

    That’s a good definition. I would contend that the definition I provided and the definition Barnett provided would intersect to a very high degree, but I will freely admit that his definition is better.

    To that I ask, would the No Treason! folks agree to the government put forth in our Constitution, which meets the two criteria Barnett suggests?

    Also, does Barnett cover that in his book, “Restoring the Lost Constitution”? That’s on my reading list for July…

  • http://www.kipesquire.com KipEsquire

    Brad, yes it’s the first two chapters of RTLC.

    :-)

  • http://n-k-1.blogspot.com James

    Brad,

    I want to be perfectly clear on this. When NT! folks ask where the US government draws its legitimacy, do you understand that they are asking about moral legitimacy? If so, do you believe that your position on positive legitimacy even addresses the issue that the question is about?

    Your attempt at resolving the contradiction I pointed out doesn’t even address it. Either a majority is a sufficient condition for legitimacy or it isn’t. Take your pick, but introducing a continuum problem is probably not the way to resolving the inconsistency.

    “To that I ask, would the No Treason! folks agree to the government put forth in our Constitution, which meets the two criteria Barnett suggests?”

    The subordinate clause here sneaks an assertion into the question. Are you willing to claim that e.g. David Friedman’s, L. Spooner’s, M. Rothbard’s, etc. arguments are not rational reasons to question the legitimacy of the government?

    “You’re an anarchist, though, which means that you see *no* government as morally legitimate.”

    Believe it or not, no. Offhand, any government is morally legitimate that (1) does not violate anyone’s property rights and (2) has not and does not engage in any activity that it simultaneously forbids others to do.

  • http://unrepentantindividual.com/ Brad Warbiany

    The subordinate clause here sneaks an assertion into the question. Are you willing to claim that e.g. David Friedman’s, L. Spooner’s, M. Rothbard’s, etc. arguments are not rational reasons to question the legitimacy of the government?

    I’m not saying that they’re not rational. I’m saying that no matter how rational, they won’t submit to any government but anarchy. It’s like saying that peanuts, with all the protein, are good for humans. But these folks are allergic.

    Believe it or not, no. Offhand, any government is morally legitimate that (1) does not violate anyone’s property rights and (2) has not and does not engage in any activity that it simultaneously forbids others to do.

    Exactly. The two conditions you’ve laid out don’t describe anything resembling a government. That’s like saying you’re a fan of any circle with four sides.

  • http://n-k-1.blogspot.com James

    Brad,

    Earlier I asked “I want to be perfectly clear on this. When NT! folks ask where the US government draws its legitimacy, do you understand that they are asking about moral legitimacy? If so, do you believe that your position on positive legitimacy even addresses the issue that the question is about?”

    Still thinking on it?

    More recently:

    “I’m not saying that they’re not rational.”

    If you aren’t denying that the anarchist arguments of Friedman, Rothbard, Spooner, etc. are rational reasons to question the legitimacy of the government, how can you claim that the government put forth in the constitution meets both of Barnett’s criteria?

    “Exactly. The two conditions you’ve laid out don’t describe anything resembling a government.”

    So exactly what? Are you saying that all governments necessarily will behave hypocritically and violate property rights? Your view of governments is more pessismistic than mine!

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  • http://www.no-treason.com John Lopez

    C’mon, Brad. Virtually nobody supports this government. Given a free choice about the matter they’d opt out overnight.

  • http://radicallibertarians.blogspot.com/ Francois Tremblay

    I have blasted this entry with my own, “The illegitimacy of the state”:
    http://radicallibertarians.blogspot.com/2006/07/illegitimacy-of-state.html

    Since the argument presented was so immoral and ridiculous, I didn’t feel the need to write a long entry.

  • http://no-treason.com John T. Kennedy

    Brad,

    Is slavery legitimate if 95% of people think it is?

  • http://no-treason.com John T. Kennedy

    Don’t classical liberals hold natural rights to be legitimate regardless of popular opinion?

  • http://n-k-1.blogspot.com James

    Heh, the very next post on this blog says that rights are not subject to majority opinion.

  • http://no-treason.com John T. Kennedy

    “To that I ask, would the No Treason! folks agree to the government put forth in our Constitution, which meets the two criteria Barnett suggests?”

    Clearly not. Even accepting Kip’s paraphrase how could one possibly hold that the constitution minimized government power and maximized individual rights?

    I’ve addressed Barnett’s arguments here. I have not read RTLC but neither have I seen any evidence from discussion of it that Barnett has added anything substantial to his earlier arguments.

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