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11/22/2000Joseph R. Stromberg

The matter of legitimacy is much in the news these days. A Fox News report of November 13, for example, quotes political scientist Darrell West as saying that if the present electoral standoff continues much longer, "the new president could have absolutely no public legitimacy. This is dangerous for our political system."

As a colleague noted today, so far at least we haven’t had to put up with the usual talking heads informing us that "the system works." No one seems to know whether in this situation it does, and there might well be disagreement on the meaning of "works." Fortunately, we can all agree on the meaning of "is" - with one notable exception.

Jürgen Habermas, the German philosopher and heir apparent of the Frankfurt School Marxists, famously worried about the legitimation crisis of Western European capitalist democracies. Evidently, the workers were unconvinced that it was fair for bosses and managers to make more money than workers do, and so on and so forth. Yet it was the communist states of the Eastern Bloc -- famous for centrally planned "equality" and "fairness" -- which collapsed in recent memory.

The Western states lurch along after a fashion, although their legitimation crisis does in fact wait in the wings. One doubts that "workers" in the Marxist sense will have much to do with it, if those states run into trouble in the near future. More likely, a coalition of people in general will wake up one day and make known their unhappiness that they, the supposed source of sovereignty, are being "treated like stooges" (to quote historian Eugen Weber). The surprising European gasoline tax revolt of recent months, denounced by the world Left as "Poujadist," may be a token of things to come.

The philosopher David Hume, Austrian School economists Ludwig von Mises and Murray Rothbard all made the point that all governments, despotic or otherwise, ultimately rest on public opinion. Rothbard noted that the 15th-century French political writer Étienne de la Boétie had forcefully expressed this idea in The Discourse of Voluntary Servitude. "La Boétie’s insight" was "that any State, no matter how ruthless and despotic, rests in the long run on the consent of the majority of the public...."

In mid-1975, just after the fall of Saigon, Rothbard wrote a controversial essay "The Death of a State" in the Libertarian Forum. Even right-wingers -- libertarian and conservative -- chided for Rothbard for not realizing that the South Vietnamese state would be succeeded by another, possibly more despotic state, etc., etc. This was not exactly unknown to Rothbard. But the assembled philistines refused to indulge Rothbard in his joyous account of the process of state implosion. The point, for him, was to understand how states forfeit popular consent, not whether they are replaced with one or another form of state fairly quickly.

There may be an analogy here with the process of hyper-inflation. Cutting back on the money supply after a hyper-inflation is under way, will no more save a discredited currency than putting in a Unity Government of non-controversial fellows in gray suits will save a discredited regime. Once people have seen through the veil of illusions, all bets are off. As Paul Cantor has written, inflation may well be the leitmotiv of the 20th century.

When things are going well for states, we find a happy alliance of Court Intellectuals and political wirepullers. It is the role of these intellectuals to explain that the state’s rulers are noble, heroic, and caring, and that their actions - however self-serving they may seem to be - are actually aimed at the general happiness of everyone. So-called Social Science plays a part here.

As Rothbard put it: "The increasing use of scientific jargon has permitted the State’s intellectuals to weave obscurantist apologia for state rule that would have only met with derision by the populace of a simpler age. A robber who justified his theft by saving that he really helped his victims, by his spending giving a boost to retail trade, would find few converts; but when this theory is clothed in Keynesian equations and impressive references to the ‘multiplier effect,’ it unfortunately carries more conviction. And so the assault on common sense proceeds, each age performing the task in its own ways." Further: "Thus, ideological support being vital to the State, it must unceasingly try to impress the public with its ‘legitimacy,’ to distinguish its activities from those of mere brigands."

Lysander Spooner thought that this proved the moral superiority of ordinary robbers to states. A highwayman "is too much of a gentleman to be guilty of such impostures, and insults, and villainies. In short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave." But the average highwayman is not seeking permanent statehood and does not, therefore, require legitimacy.

In our times, Court Intellectuals include the national mass media, part of what Richard M. Weaver referred to as "the Great Stereopticon." Not satisfied to report the news, these worthies are in the business of opinion-shaping. Jurists -- Court Intellectuals of the actual courts -- make up another key prop of legitimacy under our system. Observers as different as Hannah Arendt and Willliam Appleman Williams have noted that, lacking an established church or even a large landed gentry, Americans early put their faith in law, especially the Constitution.

Thus many issues which have torn at American society have been played out in the courts. On the federal level, this is especially true from 1937, when the Supreme Court decided to legitimize the New Deal by "finding" justifications for its measures somewhere in the Text, and from 1954, or so, on, when the Court went into the Delphic Oracle and legislating business in a big and self-aware manner. The Florida Supreme Court has caught the spirit, too. Hence the following, in the controversial ballot-counting decision just delivered: "Twenty five years ago, this Court commented that the will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle...."

Well, fine. But one thought they were supposed to be looking at a statute and comparing that to what various election officials have been doing. The "will of the people" may not be the most direct path to that operation. Anyway, more and more Americans have cottoned on to judicial government and such decisions, over time, may create a legitimacy problem in their sphere.

Sociologist Jeffrey Goldfarb has written that by the 1980s no one in Poland believed anything the communist regime said to justify its acts. The ideology was dead, with no replacement in place. The regime limped along for a while, held in place by a sort of "legitimation through cynicism." That is, no one believed in the regime, but people did tolerate it a while longer, absent any credible alternative.

In the US, we have alternatives on hand. We have state and local governments. We have the remnants of federalism and some little memory of how that system was supposed to work. Sufficient disgust with the antics of the Federal Class are already causing people to look into our own traditions of local self-government, states rights, and liberty. As Murray Rothbard might have said in this situation, "Let the de-bamboozlement begin!" President Gore-or-Bush is waiting for your input.


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