Sunday, December 11, 2016

What determines legitimacy?

In response to my post called “The Silver Lining,” a friend of mine noticed that I didn’t think the law in general was “legitimate.”  He asked what I meant by that, and "what determines legitimacy?”  Here is my response.

In layman’s terms, legitimacy is simply “the consent of the governed”: a people’s agreement to be subject to a certain governing system and to obey its laws.  I and many other people value this consent as a necessary prerequisite to ethical government; without it, what right does anybody have to rule anyone?

Unfortunately, it's practically impossible to get ALL of the governed to consent to much of anything in a nation of any significant size, so no government can ever be fully legitimate.  In practice, this means legitimacy can only exist on a spectrum, based on what portion of the governed have consented to be subject to the government in question.  As in any other area of life, the consent must be active, ongoing, and unambiguous, or it cannot be assumed.

The best way I know of for the people to specify what government they do and do not consent to is to write down it down in a formal contract, also known as a “social” contract or a constitution.  The best constitutions specify, as clearly as the language of the day allows, precisely which powers the governed people consent to have wielded over them, as well as which rights the governed people wish to keep for themselves.  By finding whichever version of that contract is acceptable to the highest number of people, and then ensuring that the government strictly abides by the terms of that contract moving forward, we can at least maximize our government's legitimacy relative to alternative systems.

Of course, historically speaking, the actual circumstances of most constitutions' creation is much less democratic than my ideal scenario would hope for. And even under ideal circumstances, there are practical shortcomings to this approach.  For example, the consent of one's children cannot be assumed just because the parent has given it, which means technically states should be tinkering with these contracts with each successive generation.  I don't know a pragmatic way to do that.  A libertarian from the late 1800's named Lysander Spooner wrote a pretty famous essay called "The Constitution of No Authority" in which he basically tears apart the multitudinous logical fallacies inherent in the notion that anybody alive today has meaningfully consented to the government we have.  I’m sympathetic to his arguments.

But even so, written constitutions are the least-bad way I know of to keep the government’s actions roughly in-line with the powers the people have consented to grant it.  The United States was the first nation to truly experiment with this model, and so far I think it has been a successful experiment. Thanks in part to that success, written constitutions have fundamentally revolutionized the way people the world over now conceive of their relationship with the state, in ways I believe were also overwhelmingly positive.  I’m proud of that history, and committed to the continued success of that experiment, which is why I swore an oath to “support and defend” that constitution whenever it’s threatened.

Unfortunately, as I wrote in this article, I don’t believe our modern government’s level of legitimacy is anywhere near as high on this spectrum as it should be, nor as high as it’s often portrayed.  One primary reason for this is that the powers wielded by our government have grown egregiously beyond those powers authorized by the constitution it’s supposed to be adhering to.  In place of proposing explicit amendments to the contract, and putting them up for a vote requiring a high threshold of consent (roughly 67-75% over the course of several years), politicians have found it more expedient to either include their proposals under preposterously broad re-interpretations of the constitution’s original meaning, or to simply point to slim and fickle victories in a deeply flawed election process as proof the people support their proposed new power.  This trend, alongside others in law enforcement, have made our government’s claim to legitimacy even more tenuous than it already was.

It is ridiculous, in my opinion, to pretend that winning a plurality of the votes in a politically ignorant nation, in an election between two very unpopular people selected by two very-unpopular parties, with only 55% voter turnout, and millions staying home due to the Electoral College and gerrymandered districts, amounts to any meaningful consent on the part of the governed to EVERY SINGLE POWER which that candidate may wish to wield.  As such, claims that whatever new uses of state violence Trump has dreamed up amount to a legitimate expression of the popular will strike me absurd.

If “the people have spoken” at all in this election, it came out pretty garbled, and is no basis for inferring “consent” to anything.

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