"The important distinction so well understood in America between a constitution established by the people, and unalterable by the government; and a law established by the government, and alterable by the government, seems to have been little understood and less observed in any other country." – James Madison
Today I’d like to revisit an important concept that I’ve only alluded to in my previous posts. That is the concept of legitimacy. My objective in this post is to submit a framework for distinguishing between legitimate and illegitimate government actions. So, what makes a government legitimate?
Up until this point, I’ve said only that legitimate governments have “the consent of the governed” (see footnote #1). But when analyzing a government’s specific activities, that phrase is actually somewhat of a contradiction. This is because all government involves coercion, and there’s no such thing as consensual coercion. By definition, the person being coerced by the law must not be consenting to that coercion at the time – otherwise, it wouldn’t be coercion. So if consent isn’t given at the point of enforcement, when is it given? When and how do people agree to live under a certain government? And when they do, how do they know what sort of government, with which sorts of laws, they are agreeing to live by?
This is where the idea of a constitution comes into play. The purpose of a constitution is to serve as a “social contract” between the governed and the governing body. Obviously, not everybody will agree to this contract individually (see footnote #2), and this causes the problems I addressed in my earlier post. But for those who do agree, some sort of paper contract stipulating the details of the agreement is necessary; if the governed are to consent, they have to know what they’re consenting to. Any good constitution should answer three important questions:
- What purpose will the government serve?
- What powers will the government have in order to serve this purpose?
- By what mechanisms will the government decide when and how to exercise those powers?
Previous posts have given my ideal answer to question one; future posts will give my ideal answers to questions two and three. But for today, those answers don’t matter as much as does their subsequent interpretation. Regardless of how a constitution answers those three questions, if the government it creates doesn’t actually abide by the answers, then it’s all for naught. This brings up two additional questions. First, how can we distinguish between constitutional and unconstitutional government actions? And second, if an action is unconstitutional, what do we do about it?
That second problem is very important, but I’m not going to talk about it today, because it’d be putting the cart before the horse. Before any unconstitutional law can be repealed, we have to identify what makes it unconstitutional. What standard must new laws meet if they are to be called legitimate? How do we determine when the social contract has been breached?
My method of doing organizes all government activity into four different levels (see footnote #3). Let’s go back to the three questions I listed above. When constitutions are shaped around these questions, they provide the government with three things: purpose, power, and the ability to create law. Once that government is created, it must provide itself with a fourth thing: a means of enforcing whatever law it creates. These necessities divide the whole of government into four parts. By stacking these parts on top of one another in order or importance, we obtain four “levels” of government legitimacy, with each level granted authority by the level above it. In order for any function of government to be legitimate, it must fall within ALL of the levels above it.
Let’s break each level down in a little more detail. The first level is the purpose of government. This is the objective government is it tasked with, the role it’s expected to fill; in other words, it’s the job society is contracting government to do in the social contract. I’ve already expressed my opinions about what this job should be to maximize legitimacy, but in theory this could be anything. If people somewhere want to create a government with the sole objective of, say, making pizza, they could do that. I don’t feel such a constitution would be very legitimate, since many people would likely object to having force wielded on them for this purpose and there is no moral consensus on that issue. But it would be constitutional, since the purpose is explicitly mentioned in the constitution. As the top tier of the social contract’s structure, there are no levels above it, and thus no restraints on what the purpose may be.
Beneath the purpose is the is the power granted to government. This level lists the things government is allowed to do to serve its purpose; it is the license the people grant it against themselves. Like the purpose, these powers are spelled out specifically in the constitution, and thus cannot be “unconstitutional”. But unlike the purpose, these powers must satisfy the level above them by being useful towards attaining that purpose. If the power granted to meet the objective had nothing to do with the objective given, the social contract would be self-contradictory. Additionally, even in pursuit of constitutional objectives, the government shouldn’t just have a blank check, and shouldn’t be able to do whatever it wants. The ends government seeks probably justify some means, but they probably don’t justify any and all means. For this reason, a good constitution will only grant the government the ability to wield whichever means can be justified by its ends, by enumerating the specific powers that are permitted. In order for the power to be legitimate, it must be possible to wield this power in pursuit of the aforementioned purpose.
The third level of the social contract is the law specifying how and when the power is to be wielded. Unlike the first two levels, the law isn’t laid out specifically in the constitution. Rather, the constitution presents the method by which law will be created and modified in the new government. Therefore laws can be created and changed by government itself without a constitutional amendment. But in order for any individual law to be constitutional, it must be within both the purpose given and the powers granted to government.
The final level of the governing structure is law enforcement, which turns the words of law into tangible actions. This is where the rubber meets the road, and where force is actually wielded by government on the citizens. And in order for this force to be legitimate, it must fall within all three of the levels above it; that is, it must be in accordance with a law that authorizes the use of an enumerated power for the purpose the given to government in the social contract.
That’s quite a mouthful, so let’s use some examples to illustrate this concept. Imagine a government with only one purpose: the defense of property rights. To serve that purpose, let’s say the constitution has granted the government exactly two powers: the power to arrest, and the power to imprison. Now let’s imagine three hypothetical laws, and try to determine if they are legitimate.
Law #1: “It is illegal to steal; anyone who tries to steal may be arrested and jailed.”
Law #2: “It is illegal to eat bacon; anyone who tries to eat bacon may be arrested and jailed.”
Law #3: “It is illegal to steal; anyone who tries to steal may be tortured and killed.”
Law #1 is constitutional; under this law, a policeman arresting a thief would be a legitimate use of force. The purpose served through that action is the protection of the right to property. The power being exercised by government is the power to arrest. And arresting a thief is wielding that power in the exact manner the law stipulates. Therefore, the enforcement of this law, serves the purpose of government, and does so by carrying out the powers vested in government, in accordance with the law. Since the action falls within all three conditions, it is legitimate.
Law #2 is unconstitutional; under this law, a policeman arresting a bacon eater would be an illegitimate use of force. The power to arrest is granted to government, but arresting someone just for eating bacon in no way serves the purpose of protecting property rights. The law uses the powers granted to government, but it does not do the job government is tasked with doing. If the people really wanted to ban eating bacon, perhaps because it’s unhealthy or to protect pigs, they could amend the constitution to add a new purpose of government: say, protecting animal rights, or ensuring everyone stays healthy. But under the constitution as it stands, both the law and the action would be illegitimate, since the power to arrest is wielded for a purpose other than the purpose described.
Law #3 is also unconstitutional; under this law, a soldier torturing or killing a thief would be an illegitimate government action. This law may serve the purpose of protecting property rights; perhaps such a stern consequence would deter future thieves. But it does not fall within the powers granted for that purpose; neither killing nor torturing were things the government is allowed to do towards those ends. If the people really want to torture thieves, they could amend the constitution to add that power to government. But until such time, both the law and the action would be illegitimate, since the power wielded by government is not granted to the government in the social contract.
For the purpose of simplicity, each of these examples assumed something that isn’t really fair to assume: that laws will always be enforced according to how they are written. In real life, we know this isn’t so. Sometimes, the part of government charged with law enforcement (usually police, military, and bureaucracy) does not act in the manner prescribed by those who crafted the law being enforced. For example, it is law that in order to search a private domicile, car, bag or other piece of property, police must first obtain a search warrant. As we know, this doesn’t always happen. Arresting somebody due to evidence found in an illegal search may be within the powers granted to government, and also may be within the purpose set out by government, satisfying the first two levels of the social contract. But since that arrest would not be an accordance to the law, that arrest would be an illegitimate use of force. This is how the fourth tier of government, the enforcement of law, can be illegitimate even if all the laws officially on the books are constitutional. For this reason, the burden on law enforcement officials is huge, because their actions must fall within each of the three higher tiers. In order to be legitimate, the actions of law enforcement must be in line with the law passed by, the power granted to, and the purpose designated for the government.
The point of all this is ensuring that the government only does what it is permitted to do by the social contract, and that it doesn’t stretch or abuse that power. Some caveats apply. Firstly, it won’t be useful for interpreting all constitutions, since some constitutions need very little interpretation. For instance, the social contract of my private island might read “Andrew Doris is King, and everybody will do exactly what he says, whenever he says to do it.” If everyone in my kingdom consented to my rule, that would be a legitimate social contract. While my four-leveled system for interpretation could still theoretically be used, it would be redundant and unnecessary. Each of the four levels of government would still technically exist; it’s just that the purposes I could serve, the powers I could wield, and the laws I could make would each be unlimited. Now, perhaps if my henchman killed the wrong guy, that could still be viewed as an illegitimate use of force, since I never decreed that he die. But in general, interpreting the constitution would be unnecessary.
And of course, even if the government abides by all the rules of my system, it doesn’t mean the law is legitimate; it only means it’s constitutional. Law can be constitutional without being legitimate; perhaps the entire constitution is rejected by the people and almost nobody agrees to live by it.
But no law can be legitimate without being constitutional, since without a written social contract, the people have no means of knowing what they’re consenting to. Once those contracts are ratified, accurately interpreting them is essential for the maximization of legitimacy.