Contingent origination

The U.S. Constitution was illegal. It was implemented in defiance of the law governing the country at the time, the Articles of Confederation, which required a different process for amending the law of the land: the unanimous approval of state legislatures. The Constitution, in contravention of the Articles, was passed by three-quarters of states’ constitutional conventions.

Similarly, the 14th Amendment, which gave former slaves equal rights of citizenship and protection under the law, was illegal. Congress passed it only after refusing to recognize representatives of former Confederate states, who would have opposed it, even though the law would apply to the very states not recognized.

And, not so incidentally, the territory to be governed by these fundamental laws had each time been secured by war: the American Revolution and the Civil War.

One could tell an entire history of constitutional law following a similar pattern. The New Deal, for example, was passed only after FDR violated the independence of the judiciary by threatening to pack the Supreme Court with three additional justices of his own choosing.

This history does not imply that we should now reject the Constitution, the Equal Protection Clause, or Social Security. Rather, it implies that legitimacy always originates in illegitimacy (to echo Nietzsche, who demonstrated that morality originates in immorality and rationality in irrationality). Government, which by definition wields legitimate rather than arbitrary force, always originates in arbitrary power. Legitimacy is mythical in the same way as the “social contract” is not a contract because one party, the governed, did not consent. These are our founding fabrications, the necessary presuppositions of our political order.

But does this history imply that our political order is no more or less legitimate than any other order similarly founded by force? If, in 2024, President Trump were to declare himself Fuhrer with the backing of military force, would his military dictatorship be just as legitimate as the United States government has been since 1787?

Not if we distinguish ends and means. Politics always employs illegitimate means: force. Even if every political action were determined democratically, what would give the majority the right to impose their decisions on the minority? Even if every political action were determined by unanimous decision, who would have the right to decide which questions were presented for decision and by what deliberative process they were decided? There is no escape from the arbitrary and non-consensual in the field of politics. What distinguishes the legitimate from the illegitimate, ultimately, are the ends toward which arbitrary means are directed. Is force being used to create freedom or destroy it, to concentrate power or to share it?

 

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