I trust that by 4th or 5th grade, everyone of us had at least become familiarized with, if not memorized, the Preamble to the U.S. Constitution. It provides an overview to and purpose statement of the Constitution, the document that (in theory) specifically delineates the authority and powers granted to the federal government, “in order to form a more perfect Union.” The Preamble also tersely summarizes why the Constitution was needed over against the previous effort to unify the states via the Articles of Confederation. That effort had proved insufficient to “establish justice, secure domestic tranquility, provide for the common defense, and promote the general welfare.”
With that in mind, it is telling that the document begins with “We the people of the United States….” The Framers of the Constitution wanted to emphasize that this document defining the nature and structure of governance and, subsequently, sanctioning the laws enacted by way of that government, was being formulated and established by the people. The government and its actions and dictates were to be based upon the “consent of the governed,” as the Declaration of Independence declares, rather than on the whims of an absolute monarch or the control of an unaccountable cabal.
Perhaps somewhat pedantically I ask: why was/is this important? Why did the Framers choose to make clear that this new way of government they were creating was coming from “We the people”? What was so egregious about the rule of George III, for instance, that made it important to emphasize the democratic (in the literal sense of the word, meaning “rule/power of the people”) origins of this government?
I think intuitively we all know the answer. It is in our founding documents, and frankly, it’s in our blood. This idea that the government derives its authority from “we the people” is important because, by virtue of our very existence, we possess “certain unalienable rights.” These rights precede the establishment of government, and the laws or actions of government must respect them in order to be legitimate. It is based upon this notion, for example, that Martin Luther King Jr. argued in his “Letter from a Birmingham Jail” that
there are two types of laws: just and unjust…. I would agree with St. Augustine that “an unjust law is no law at all”…. How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust….
At the moment I am unconcerned with the formalistic debate about whether or not this “natural law” (and, correlatively, “natural rights”) actually exists or if it is merely a fiction/artificial construct. What matters is that it is recognized, whether in reality or only hypothetically, that each individual possesses these rights.
Since these rights are possessed by each individual, it is only by achieving the consent of each individual that a government can legitimately exist and thus wield any power at all over said individual. Put another way, the locus of authority over each individual resides with each individual, and thus it is only by the delegation of this authority to another entity by the individual that the delegated authority possesses any power at all. King George did not have the permission of the inhabitants of the colonies to enact the laws which he imposed upon them; as such, he did not have the legitimate authority to do so. The U.S. government, and the governments of various states, did not have the permission of certain portions of the population to make rules governing them or imposing restrictions upon them; as such, those portions of the population could rightly disobey the rules foisted upon them. Even if such actions were technically “illegal,” they were nevertheless in accord with “natural law,” for natural law accords to each individual authority over his/her self that cannot be infringed upon without the consent of the individual.
This is the philosophy that undergirds the notion of the “consent of the governed.” This is why the Preamble begins with “We the people.” This is why we obsess with the idea of democracy and universal suffrage. Colloquially, this is embodied in the mentality that everybody gets to have a say in the government. Without giving everybody a say in the government, the government cannot lawfully exercise authority over those who do not get a say.
So far, so good. I doubt that there are too many people, at least in “Western” societies (or post-Reformation, post-Enlightenment societies), who would disagree with this fundamental principle.
It is at this juncture, however, that the train so often goes off the rails. That is because democracy, or the “consent of the governed,” is not an end unto itself, and yet it is far too often treated as such. A case-in-point is the naive belief embodied in the Bush Doctrine that spreading democracy would prevent terrorism and establish governments (in formerly dictatorial countries) that respected the rights of individuals. Democracy can beget National Socialism in Germany, the Muslim Brotherhood in Egypt, Hamas in Gaza, etc. To put it one way, democracy is a necessary, but not a sufficient, condition to establish a legitimate government (and, to review, by legitimate we mean one that is in accord with whatever-it-is-we-recognize as “natural law” and “natural rights”). It is an essential part of achieving this end, but is not the only essential thing required to achieve this end. To put it another way, democracy is a procedural safeguard to ensure the legitimacy of government, but does not guarantee the legitimacy of government.
Let’s go back to a relevant and current example to grapple with this. Hamas was democratically elected by the residents of Gaza to become the ruling party of that region. Nevertheless, we do not (at least in the United States and Western Europe – unless you’re Jimmy Carter) recognize Hamas as a legitimate government. Why? Well, in reality, there are many reasons, and it is an issue tangled up with a whole host of other matters. At root, however, and in theory, we do not recognize them as a legitimate government because they do not respect and uphold the natural rights of people. They infringe upon the religious rights of their citizens, they abridge the rights of people to speak freely and in dissent against them, they do not abide by rules governing international hostilities, etc. Though, in theory, they were chosen by “the people,” they are nevertheless an illegitimate governing authority. Democracy, therefore, in at least one instance, has failed to establish a legitimate government. What is being overlooked, then, in this mistaken formulation of what constitutes and guarantees a legitimate government?
What is being overlooked is that the “consent of the governed,” or rule by “we the people,” is a fiction. Treating democracy as an end unto itself, or viewing it as a sufficient condition to ensure legitimate government, falls prey to the delusion that everyone has consented to the system established via the democratic process. Let’s go back to the Preamble, for that in and of itself can (anachronistically, of course) be viewed as an Orwellian use of language. When the Framers spoke of “we the people,” they really meant “we the free, white men.” It was not until the enactment of the 13th-15th and 19th amendments that “we the people” would actually mean “everybody” (at least in theory, of course).
However, there is a more significant issue, even more significant than the euphemistic use of universal terminology about people to refer narrowly to a certain and specific type of person that the Framers can be considered guilty of committing (notwithstanding those among the Framers who deeply objected to this euphemistic usage and wanted to end chattel slavery at that time). This more significant issue, in fact, is probably more pernicious than what the Framers were guilty of doing, for it maintains the pretense of equality and consent much more convincingly.
This more harmful misunderstanding is, as we have already more-or-less described, the idea that a simple majority of the people can enact laws and legislators that then have the authority to bind everyone else to their authority. Cue Mel Gibson…
Democracy is insufficient to secure the consent of each and every individual. For instance, say you did not vote for George Bush in 2000. Could you nevertheless be considered to have consented to the implementation of the Patriot Act allowing for the government to, in essence, spy on your phone calls, internet activity, etc.? Going even further, say you did vote for George Bush in 2000 – is it even fair to suppose that you have consented to the Patriot Act? The opinion of the majority with regard to the enactment of a certain law or the election of a certain governing agent does not reflect the will of everybody who participated in the decision-making (i.e., the democratic) process, never mind the opinion of everyone in general – regardless of whether or not they chose to participate in the process. Since there are dissenters and non-participants – as well as the either-or problem innate within the whole political process, in which people are often stuck choosing between “the lesser of two evils” – how can we honestly say that their will has been reflected and their rights have been maintained by sheer virtue of the fact that a majority felt a certain way or elected a certain individual?
That is why “We the people” is an Orwellian fiction. We use it to justify the implementation of laws and the behavior of governing agents that are inconsistent with the wills of many people who are nevertheless subject to the authority of these laws and agents anyway. We use it to provide cover for the infringement of rights, for we pretend that the will of the majority will always be consistent with the preexisting liberties and freedoms of everybody. Worse yet, given our representative democratic-republican hybrid system of government, we encourage the fiction that the decisions of a majority of elected representatives, who themselves were only elected by a majority (or plurality, even) of the people, are consistent with the rights of everybody and representative of “the people’s will.” When this facade is shot full of holes, we ultimately resort to essentially nihilistic arguments that, within the political process, “to the victor belong the spoils,” meaning that, provided we have ensured that a decision-making process was fair and free, the winners get to exercise their will justifiably, solely by virtue of them having won. Not only is this fiction Orwellian, but, on account of these flaws, it is also dangerous, for by it, the unalienable and natural rights of individuals can be violated with impunity in the name of and under the cover of a supposedly legitimate representative process.
Thus, if “We the people” is a fiction, and a dangerous one, what is the solution? How do we ordain and establish a system that accomplishes the goals laid forth in the Preamble (and the Constitution, and the Bill of Rights, etc.) without falling prey to the pitfalls of the process of enactment and the fictions created by that process? If we could establish a system wherein we could achieve unanimous and universal consent, then we could solve the problem, for we would turn “we the people” into a reality.
Short of achieving that (which is almost certainly impossible, though not a bad idea to try to realize anyway), the only way to do so is to establish a system that recognizes the preexisting rights of individuals, provides for procedural safeguards to redress any infringement upon these preexisting rights by others and/or the government, and creates new rights wherever preexisting rights have been curtailed for sake of civil society (i.e., where the right of self-defense has been curtailed and handed over to the army/police power to achieve a better and more robust protection of oneself, a new civil right of equal protection and equal treatment by these forces is created, as well as a right to contest or appeal the actions of the policing agency when one feels aggrieved and/or unprotected by it). Foreseeing the objection that it might be impossible to implement a system that is able even to agree upon what the preexisting rights of individuals are (e.g., I might imagine an absolute right to own an exotic pet, whereas you do not), I would argue that we also need to create a system which allows for each individual to define for themselves what their preexisting rights are, curtailing and/or proscribing them only inasmuch as one’s exercise of his/her rights as defined by him/herself begins to infringe upon the exercise of another’s rights as defined by the other person (e.g., if my owning of that exotic pet somehow threatens your safety or property).
In short, “We the people” is a great idea, but a dangerous fiction that is oftentimes used as cover for what many political philosophers have referred to as the “tyranny of the majority.” Democracy is useful as a procedural safeguard for the rights of individuals, but is insufficient to guarantee them. We should not fetishize the principle, but understand it in a utilitarian fashion as an imperfect means to an ideal end, and recognize that this imperfect means is capable of producing just as many injustices as any other system, thus generating the need for other procedural safeguards for individual rights and liberties. We need, in essence, to remember the words of Churchill, that “democracy is the worst form of government except all those other forms that have been tried from time to time.” Democracy does not create the rule of law, for in reality, democracy is just another form of the rule of people over against the rule of law.
For the long version of this (noting all mistakes are mine with regards to any half-hatched thoughts and misrepresentations which I may have made herein), just go ahead and buy this book.