The Death Of Legitimacy

[The following essay first appeared at Eternity Road on July 29, 2009. In light of the Obama Administration’s multiple attempts to usurp powers far beyond anything authorized in the Constitution, it’s critical that Americans understand the difference between legality and legitimacy -- and why the federal government has lost all trace of the latter. -- FWP]

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No society can exist unless the laws are respected to a certain degree. The safest way to make laws respected is to make them respectable. When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law. These two evils are of equal consequence, and it would be difficult for a person to choose between them.

The nature of law is to maintain justice. This is so much the case that, in the minds of the people, law and justice are one and the same thing. There is in all of us a strong disposition to believe that anything lawful is also legitimate. This belief is so widespread that many persons have erroneously held that things are "just" because law makes them so.

The above passage is from The Law, a tract written in 1850 by French economist and statesman Frederic Bastiat. That little book is as relevant to the United States of 2009 as it was to France of 159 years ago. The quote above goes to the heart of our political problem.

A writer of somewhat more recent vintage, Esteemed Co-Conspirator Mark Alger, has applied Bastiat's formulation most pointedly, to wit:

• The federal government of the United States derives its legitimate authority from the Constitution;
• But that government has disregarded the Constitution's constraints on its authority and activities for about a century;
• Therefore, the federal government is illegitimate.
• But a nation without a legitimate government is in a state of anarchy;
• Therefore, the United States is in a state of anarchy.

(As we mathematical types like to say, quod erat demonstrandum.)

Legitimacy as a political concept appears to have been killed off. Consider: The fundamental premise of American government, as Mark states in the post below, is that our governments have only those powers and authorities We the People explicitly grant them. Sovereignty resides in the private citizen, not the State; if We the People have not legitimized some exercise of power by explicit constitutional grant, it's illegitimate. So: Where in the Constitution was Congress granted the power to legislate on health care, or on carbon dioxide emissions? Where in the Constitution was Congress, or any part of the federal government, granted the power to nationalize large private corporations, or any other item of private property, without an eminent-domain condemnation proceeding? Where in the Constitution was Congress granted the power to delegate its lawmaking authority to unelected bureaucrats, shielded from public outrage by anonymity and Civil Service protections?

(He who points to the phrase "general welfare" had better have his body armor on; James Madison, the Father of the Constitution, said explicitly that that phrase was confined in application to the seventeen enumerated powers. Besides, if Congress can legitimately legislate on who must buy health insurance, and of what sort, and at what price, as a matter of the "general welfare," what could possibly lie beyond its authority? What powers are denied to it, and why?)

Your Curmudgeon has asked those questions of many a left-liberal, and he's never received a courteous answer. The overwhelmingly most common response has been foam-flecked denunciation. The prevalent attitude among persons who approve of the situation is "Go ahead, try to do something about it." In other words, all that matters is the power to impose one's will.

The constitutional federated republic once known as the United States of America no longer exists. The consensus on legitimate authority that gave birth to it has been discarded. In its geographic place is a realm ruled by force and fear.

Anarchy is, indeed, the consequence of the death of legitimacy.

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For something like a century, Americans have labored under a misconception about "democracy." Specifically, far too many of us consider the United States a democracy, in which whatever proposed prescriptions or proscriptions can command majority support are therefore legitimately made into laws. The felony is compounded by our system of representation by elected officials, for that makes it possible to conceal from ourselves the moral identity between untrammeled majoritarianism and lynch-mob rule.

The United States was never intended to be a democracy. It uses quasi-democratic electoral mechanisms to select its officeholders; that is all. But those officeholders do not acquire thereby any special powers beyond what the federal Constitution, or the lesser charters subordinate to it, might grant them.

The democratic fallacy has its worst effects at the top of the pyramid: the presidency. The Constitution specifies the powers of the president quite narrowly:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

But by the exploitation of the democratic fallacy, and by the implication that the president, the only officeholder subjected to a nationwide vote, is therefore the best representative of the will of the American people, the president has been elevated to a sort of monarch. The president routinely involves himself in legislation, often submitting bills to Congress directly or through a proxy. He stumps the country for this or that law or measure, often commandeering television time to pitch his views to us. He pretends that foreign policy, down to the minutest details of America's interactions with other nations, belongs in his hands alone. He postures as if his installation in the Oval Office somehow legitimizes whatever he might happen to do.

As of 1951, the president has arrogated the power to take America to war without Congressional authorization.

The complaints about a "unitary executive" that arose from the Left during George W. Bush's terms of office aren't being heard today. That irony hasn't yet registered widely enough. Even if it had, it would pale in comparison to the phenomenon of the unlimited executive, free to impose its will on anyone and anything inside the United States and quite a lot outside it, that we endure today.

And all of it, and all the excesses of our legislatures and courts at every level of government, derives from the democratic fallacy: the notion that the assent of 50% plus one can legitimize anything it pleases.

***

The phrase "legitimate authority" has appeared in these pages before. In practical terms, it's always meant "what the subjects have gotten used to from their rulers." But that interpretation of the phrase clashes irresolubly with the constitutional traditions of these United States.

It's morally mandatory that we be candid about our premises. We cannot logically maintain that the Constitution is the source of all legitimate authority, and that the federal government can exceed the powers granted it by the Constitution yet remain legitimate. The first position compels us to abjure Washington and all its works -- in the words of Ol' Remus, to "run -- not walk -- from any avoidable association with it." The second tacitly accepts a Regime of Force Majeure, in which whoever has the most firepower gets to do as he pleases, the rest of us have to grin and bear it, and questions of legitimacy are ruled permanently out of order. In other words, an anarchy.

We must choose one position or the other. Whichever we choose will imply what sort of nation this will be in the decades to come.