Full Version: Constitutional Legitimacy
Alright, so, everyone, I think, has at least once cited the Constitution to support or [more often] criticize a piece of legislation. I'd like to know from where does the Constitution obtain it's legitimacy. It isn't from the consent of the governed, as it was written and passed by a tiny minority of Americans....So what? My question is simple:
What makes the Constitution a legitimate source of law?
CP
What makes the Constitution a legitimate source of law?
CP
QUOTE(ConservPat @ Jun 20 2007, 08:41 AM) 
What makes the Constitution a legitimate source of law?
I don't know if it is legitimate or not, but coercion makes it the law of the land.
"Coercion" (or "violent force") is an act by a human or humans against the will or without the permission of another human being with respect to that which is his own (his own person or property). It means for someone to take, use, meddle with or otherwise do something to the body or property of another human being without the permission or against the will of that other human being. This includes fraud and embezzlement and other indirect uses of force as well as direct physical violence.
The Constitution enables coercion against US. It is why the Founding Fathers spit on the issue. It is why the Virginia delegation refused to sign it without Amendments (i.e., the Bill of Rights). It is why the Southern States split from the Union in 1861 and compelled this nation into a great and terrible Civil War.
Coercion! It ain't right. Its anti-Liberty. Its anti-American.
What makes the Constitution a legitimate source of law?
Individuals can voice their objections to the Constitution as a whole, or any part of it, but they cannot escape its "force of law" without leaving its jurisdiction. The old phrase "love it or leave it" is not just empty rhetoric, but a real option. We're free to leave and find a government that suits us better elsewhere. That's no insignificant freedom. There's no Berlin Wall keeping us here against our will... not yet, anyway. At least one American conributor to this forum has chosen to leave the country rather than live under its Constitutional government.
Everyone freely choosing to enter or remain in the jurisdiction of a government without attempting to overthrow it (peacefully or otherwise) is giving their consent to be governed by its laws, even if they object to those laws. So, yes, the Constitution derives its power from the freely-given consent of the governed.
QUOTE(ConservPat @ Jun 20 2007, 08:41 AM)
Alright, so, everyone, I think, has at least once cited the Constitution to support or [more often] criticize a piece of legislation. I'd like to know from where does the Constitution obtain it's legitimacy. It isn't from the consent of the governed, as it was written and passed by a tiny minority of Americans....So what?
It actually is considered the consent of the governed. The Declaration describes several legitimate processes by which the Constitution, or any other form of government, can be abolished and replaced with another. Our consent distills to the fact that we haven't abolished the Constitution. Amending the Constitution allows us to remove consent from portions of the Constitution and optionally replace them with something we like better. If the governed can't muster the political will to either amend or abolish the Constitution, then it has our (corporate, overall) consent.Individuals can voice their objections to the Constitution as a whole, or any part of it, but they cannot escape its "force of law" without leaving its jurisdiction. The old phrase "love it or leave it" is not just empty rhetoric, but a real option. We're free to leave and find a government that suits us better elsewhere. That's no insignificant freedom. There's no Berlin Wall keeping us here against our will... not yet, anyway. At least one American conributor to this forum has chosen to leave the country rather than live under its Constitutional government.
Everyone freely choosing to enter or remain in the jurisdiction of a government without attempting to overthrow it (peacefully or otherwise) is giving their consent to be governed by its laws, even if they object to those laws. So, yes, the Constitution derives its power from the freely-given consent of the governed.
There is some truth to both opinions expressed here. The Constitution of the United States of America, like any law, is an artificial set of rules set up by flawed human beings. No law can be any more "legitimate" than any other law. (It's interesting to note that the very word "legitimate" derives from the same root as words like "legislation." We are forced to accept a circular argument here; the law is only "legitimate" because it is the law.)
So much for philosophy. Why must we accept the Constitution, or any other law, as "legitimate" in our daily lives? The main reason is that we will be punished if we do not. It is also true that we have to live somewhere, and that few of us can afford to live on a private island with no government at all. (Those who can afford such a luxury probably aren't used to worrying about little things like the law at all. As G. K. Chesterton once pointed out, the poor have often objected to being governed poorly; the rich have often objected to being governed at all.)
Those of us who are not quite that wealthy can look around and say, well, the USA isn't that bad; better than, say, Iran or North Korea. It also wouldn't be bad, and maybe a little better in some ways, to live in, say, Canada or New Zealand or Australia or many of the nations in Europe, but it's usually not worth the vast trouble of moving for a minimal advantage.
Those who have little wealth have no choice; they must continue to live in the United States, willy nilly. For them, there is no question of consent. All we can do is to try to make the government under which they must live as minimally repressive as possible.
So much for philosophy. Why must we accept the Constitution, or any other law, as "legitimate" in our daily lives? The main reason is that we will be punished if we do not. It is also true that we have to live somewhere, and that few of us can afford to live on a private island with no government at all. (Those who can afford such a luxury probably aren't used to worrying about little things like the law at all. As G. K. Chesterton once pointed out, the poor have often objected to being governed poorly; the rich have often objected to being governed at all.)
Those of us who are not quite that wealthy can look around and say, well, the USA isn't that bad; better than, say, Iran or North Korea. It also wouldn't be bad, and maybe a little better in some ways, to live in, say, Canada or New Zealand or Australia or many of the nations in Europe, but it's usually not worth the vast trouble of moving for a minimal advantage.
Those who have little wealth have no choice; they must continue to live in the United States, willy nilly. For them, there is no question of consent. All we can do is to try to make the government under which they must live as minimally repressive as possible.
QUOTE(Victoria Silverwolf @ Jun 26 2007, 12:37 AM)
Those who have little wealth have no choice; they must continue to live in the United States, willy nilly. For them, there is no question of consent. All we can do is to try to make the government under which they must live as minimally repressive as possible.
If penniless Mexican nationals can make their way to the U.S. in droves, penniless Americans can also escape their homeland. In fact, it's much easier for impoverished Americans to get into Canada or Mexico as visitors than the other way around. Getting off-continent free-of-charge is also possible, but it might not be very comfortable-- think employment in travel, fishing, or shipping industries. My ancestors didn't have a dime when they found a way to cross the Atlantic. There might be a few of us with disabilities or health care needs who aren't mobile enough to get out of Dodge, but for the vast majority of us, we could leave if we really wanted to, rich or poor. I'm not saying satisfaction with our government would always be the only consideration of such a decision, to the exclusion of economic concerns. Yet many wanderers manage to travel the world, quite legally, without as much trouble as one might think, finding odd jobs in almost any developed country or transportation company even without a degree or trade. The extra paperwork necessary to move more permanently might be a hassle, but it's still an option.
Obviously, our practical options are never limitless. I doubt any government is perfectly suited to any individual. Most of us would rather stay put and endure whatever hints of oppression we experience because we don't see the alternatives being enough better to pull up roots for. But ultimately, that's still out decision to make, even if the realistic alternatives seem to form more of a prison than wide-open terrain. Other considerations might tend to prevent us from leaving, but not American law. Not yet.
I'll also grant that a strong sense of patriotism or concern for the people around us, combined with a sense of honor or duty, tend to keep most of us from abandoning them to suffer oppression while we escape it, even if we could. I seriously doubt I'd move away from the U.S., or Texas, for that matter, even if the government turned into a communist dictatorship, confiscated all my property, and declared me an enemy of the state. Maybe I would turn tail and run at some point of weakness, but my point is most of us would want to preserve our ties to the People of this nation even if its government were to go terribly wrong. We might decide to actively oppose the Tyranny or work more quietly to ease the suffering around us. If we would feel compelled to stay under horrific conditions, we'd certainly feel even more compelled to stay through relatively minor shifts in the political winds. Even so, that abstract, theoretical option to leave at will, even if we never seriously consider it, is essential to freedom...
The intangible liberty of the psyche or spirit, whether or not accompanied by political liberty, allows the individual to find peace, contentment, and purpose, even under the harshest of suffering. Its effect can be magnified when it happens to be accompanied by political liberty, theoretical or practical. In my experience, that's no small consolation. It's the very fire in my belly.
So, I for one, voliciously consent to this Constitution, as "wholeheartedly" as at least one of her signers did...
QUOTE
Mr. President
I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele a Protestant in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain french lady, who in a dispute with her sister, said "I don't know how it happens, Sister but I meet with no body but myself, that's always in the right, 'Il n'y a que moi qui a toujours raison.'"
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. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die. If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects & great advantages resulting naturally in our favor among foreign Nations as well as among ourselves, from our real or apparent unanimity. Much of the strength & efficiency of any Government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the Government, as well as well as of the wisdom and integrity of its Governors. I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (if approved by Congress & confirmed by the Conventions) wherever our influence may extend, and turn our future thoughts & endeavors to the means of having it well administred.
On the whole, Sir, I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.
-- Benjamin Franklin
May he be proven a false prophet concerning the passage I've emphasized, all indications to the contrary.
I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele a Protestant in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain french lady, who in a dispute with her sister, said "I don't know how it happens, Sister but I meet with no body but myself, that's always in the right, 'Il n'y a que moi qui a toujours raison.'"
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. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die. If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects & great advantages resulting naturally in our favor among foreign Nations as well as among ourselves, from our real or apparent unanimity. Much of the strength & efficiency of any Government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the Government, as well as well as of the wisdom and integrity of its Governors. I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (if approved by Congress & confirmed by the Conventions) wherever our influence may extend, and turn our future thoughts & endeavors to the means of having it well administred.
On the whole, Sir, I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.
-- Benjamin Franklin
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