Copyright (c) 1998 First Things 86 (October 1998): 18-19
In November 1996, a First Things symposium on American democracy and the court raised a furor among two groups of conservatives that later came to be known as "theocons" and "neocons." The controversy was sparked by Father Richard John Neuhaus’ purported suggestion—backed up more or less strongly by several of the symposium’s other contributors—that reasonable people might plausibly view the current American regime, at least in some of its judicially driven aspects, as "illegitimate."
It is easy to understand why conservatives would be uncomfortable with such a suggestion. After all, most Americans were reared on a particular variant of the Lockean contract theory of government that ultimately found its way into the Declaration of Independence. According to this theory, a determination of governmental illegitimacy justifies armed rebellion. Yet conservatives have also been reared on Edmund Burke’s idea that revolutions are almost never justified—even when official behavior seems intolerable.
Now that the furor has subsided, I would like to offer some thoughts about the idea of "legitimacy" and its relation to the judicial usurpation that both conservative camps seem to have agreed upon. I shall begin by offering the suggestion that "legitimacy" is, strictly speaking, a term that both derives from, and modifies, "law." It has, in modern times, been applied to government as a whole, but as the etymology suggests, this application is problematic.
In classical legal thought, before the rise of the modern notion of sovereignty and of the nation-state, legitimacy attached to the acts of government but not to its very existence. That is why a regime whose acts and laws were unjust could be thought without contradiction to deserve obedience. As St. Augustine put it: all human governments are fatally defective and thus merit no allegiance; yet the peregrini, the children of God whose real citizenship is in the City of God, nonetheless have a near-absolute obligation to submit to these unjust regimes during their brief stay on earth, because the alternative (revolution) is complete disorder.
Thomas Aquinas did not put the matter quite so starkly, but the gist of his remarks is the same. For St. Thomas, the entire universe is governed by laws, and human or positive laws are only a small subset of this larger body of law. Moreover, since the positive laws that govern human society are merely attempts to represent the human law that is derivative from lex natura—engrafted upon human nature—and in conformity with the lex aeterna, their "legitimacy" is entirely a question of the extent to which they capture the existing reality that they are designed to represent. Since the attempt to capture and represent this reality is concrete and particular, it is manifest only in particular acts and laws—not in the regime as a whole.
Thus Socrates sums up the whole of classical legal thought in Minos when he answers the question "What is law, for us?" with the statement "Law is the discovery of what is." And the process of discovery proceeds, as it were, "case-by-case." In the Summa Theologica, St. Thomas can assert simultaneously and confidently both of the following points: (1) the acts of a human legal authority that are not in conformity with the lex aeterna are not really laws at all—except in a "perverse" or unjust sense; and (2) there is a general duty of obedience that attaches even to unjust "laws" (non-laws) for the sake of earthly peace, which—along with the inculcation of virtue—is one of the two main purposes of human law.
The reason that these two propositions seem paradoxical—or even contradictory—to modern observers is that the dominant jurisprudence of the day is a variant of legal positivism, which holds forth a "command" theory of law, insisting that all law is the result of human artifice. Legal positivism demands an all-or-nothing answer to any question about a regime’s legitimacy because positivism itself provides no ground for law and legitimacy save that of raw power. But there can be no such answer. Classical legal naturalism, in its explicit avowal of a "higher" standard to which all laws and other acts of government must conform to be recognized as fully "legitimate," makes it possible to critique the law without calling into question the authority of the lawgiver every time such a critique is offered. The reaction of secular conservatives to Neuhaus’ suggestion thus demonstrates the hold that positivism has even on thoughtful conservatives in our time.
The extent to which the regime as a whole represents or approximates adequately the higher or more fundamental law that imparts its legitimacy is a question of degree that can be answered only by a practical judgment grounded on familiarity with a large number of the relevant details. The mere fact of a regime’s existence being preferable to any currently feasible alternative does not prevent our raising questions regarding the extent to which its institutions, acts, and laws rest upon a solid foundation of constitutionally legitimate authority. Despite the objections of the neocons, such questions should be regarded as always open. Indeed, if they were not, there would probably be no American Republic at all to claim the loyalty of the neocons and others; for it strains credulity to think that the revolt of the colonies against king and parliament was a revolt against a regime so monstrous as to exempt the colonists from the normal, conservative duty of obedience even to unjust regimes.
The word "legitimate" derives from the Roman lex (law), which in turn derives from the verb ligare (to bind). Legitimacy is a measure of the justice of the laws that bind individuals to the polity, of the extent to which we are truly governed by laws and not by men. The Antifederalist Brutus predicted long ago that the federal constitution would, in time, turn into a judicial oligarchy. But it was upon the rejection of that prediction that the American Constitution was found acceptable by the people of the United States. This means that if American constitutionalism presently amounts to government by judges and not by laws, the Founders’ Constitution, at least in one important sense, no longer exists.
Yet most people do think that the Founders’ Constitution still exists; and I think that is why most people still regard the American regime as "legitimate." They do not regard it as legitimate merely because it exists, or because—though no longer properly grounded in the Founders’ Constitution—no alternatives are conceivable. In my view, this is why Father Neuhaus’ remarks must be taken seriously. He has merely seen before what everyone else will see later if his remarks are not taken seriously. If Neuhaus is right, no effort by neoconservative intellectuals to suppress the thoughts that led to his remarks will be successful; and if he is wrong, then it hardly seems likely that a revolution will ensue as their result.
If conservatives are generally correct in their judgment that the courts have usurped many of the primary functions of the legislative and executive branches—and, again, theocons and neocons alike seem to agree on this point—then precisely to the extent of that usurpation their acts (though not necessarily the regime as a whole) are illegitimate by definition. Ours is a government of assigned powers, and the question of legitimacy is thus about the extent to which our delegated organs of government are staying within the limits of those assigned powers. Mary Ellen Bork, in the remark reported by her husband in his symposium article, has gotten it exactly right: if the courts are making decisions that they do not have the constitutional authority to make, they are behaving like "a bunch of outlaws." It doesn’t matter that the judges don’t know they are behaving like outlaws, for they themselves impose the time-honored maxim of law holding that "ignorance of the law is no excuse for its violation."
Does this mean that conservatives should take up arms and try to overthrow the government? Of course not. But it does mean that we should recognize the extent to which our government—especially its judicial branch—has been courting illegitimacy in recent years; and we should acknowledge the fact that constitutional legitimacy is a practical status that the government must earn by refusing to overreach its constitutional authority. The pressing problem for conservatives is how to awaken the American democracy to the necessity of policing the legal establishment and the courts, before its long-run interests are irredeemably compromised.