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Yes, the U.S. Government is Illegitimate

Michael S. Rozeff

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I will argue to the conclusion that the U.S. government is illegitimate. My grounds will be that it is either a government of unlimited powers, making it illegitimate; or that it has vastly overstepped its constitutional bounds, which also makes it illegitimate.

In the agency theory of government, a people has a limited state and government for two main reasons: First, to maintain domestic order within the people, as in, for example, preventing the violent resolution of intra-people conflicts; and second, to secure the common defense against external enemies. These two functions, internal and external defense, may be called simply defense; or they may be termed protection of property rights. (The definition of property rights requires a system of justice, which, important as it is, is not a reason for a state; although the justice system may be coordinated with the state.)

Against the theory of limited government stands the fact that the state is a very dangerous organization because the power of defense can be and usually is turned against its own citizens and because, once it is created, it is neither easily extinguished, changed nor controlled. Peoples settle for imperfection; states are common. The main reason seems to be the importance of defense to a people, combined with an inability or difficulty in achieving defense by means of private defense agents or companies.

An example of a recent political creation for the sake of defense is Crimea. Threatened with suppression by their own state (Ukraine), two subdivisions of Ukraine, the Autonomous Republic of Crimea and the local government of Sevastopol, held a referendum and decided to join the Russian Federation as a federal subject. The vote was 96.77 percent in favor. This vote legitimized the new political arrangement. It made the new government legitimate, but not necessarily forever. (As soon as the new government goes outside or oversteps its defense limits without approval of the people, defense having been the prime reason for the change, its legitimacy begins to decline.)

A government that uses its power to defend its people and property is not violating the libertarian tenet of non-aggression. A limited government is the target of many libertarians. A challenge to this goal is that this restricted use of power is almost never observed. Governments typically use power in numerous other ways that are illegitimate as referred to the standard that defense is the only or main legitimate role of the government.

My own theory, positive not normative, is that human beings do not live and cannot live without governance. This is observed to be be of three kinds: individual, social and political. The political realm of governance is what we ordinarily mean by the termgovernment. The state as the political solution to defense and limited to that function is what is called limited government or a night watchman state. Keeping the political government limited has not proven to be at all possible. Segments of the people, including people in government, invariably expand and extend the uses of power. The political realm of governance invades or flows into the social and individual realms of governance. The thermometer of power then rises toward a higher totalitarian reading.

We can understand the transgressions of government by reference to its overstepping the bounds of defense, since those define limited government. When a government claims that defense demands controlling the health, education, habits, communications, movements, religions, sexual practices, clothing, wages, products, jobs, energy use, inventions, money, etc., of the people, power is being misused. It doesn’t matter what the form of government is or what we call it (democratic, socialist, fascist, communist, theocratic, progressive, democratic socialist,…): none of these common forms or labels are limited government. All tend toward the unlimited. All are using power illegitimately, that is, far beyond what defense, properly understood, actually entails. The limited state may not be possible, or possible for very long, or not a stable equilibrium, but it is a useful concept in understanding what we do not have and where we are going wrong.

To defend is to resist attack, against person or property. The concept of defense presumes that the person and property are givens. They are not formed or made by government. The individual and society accomplish that. The limited government protects what is there from attack. We can now ask for the rest of the day, week, month and year questions like these:

Is setting a minimum wage an act of defense?
Is providing subsidies to large agricultural companies an act of defense?
Is providing military aid to Saudi Arabia so that it can attack Yemen an act of defense?
Is a U.S. attack on Libya an act of defense?
Is a U.S. defense of Poland or Taiwan an act of defense of the U.S.?
Is socialized medicine an act of defense?
Is government control over paper money an act of defense?
Are government bailouts of banks acts of defense?
Are tariffs an act of defense?
Is the Social Security program an act of defense?
Are sanctions on Iran an act of defense for Americans?

It will be relatively easy, if we are honest, to answer “no” to questions like these. Many defenders of big and not limited-to-defense government will rise to the occasion and point out that while these acts are not acts of defense, they are in accordance with the General Welfare and within the constitutional powers of the government. If they are, that shows definitively that America is not living under a limited government but a government that’s unlimited, meaning if it doesn’t already have a law about something, it can create such a law if it wants to. On the other hand, if these acts are deemed to be not in accordance with the Constitution, that says that most of government is illegitimate.

Under this logical structure, either the U.S. government is one of unlimited powers or else it is illegitimate. I find it extremely hard to believe that Americans approve of a government of unlimited powers. I think they will consider such a government as illegitimate. In other words, I do not expect that 96.77 percent of Americans will say “yes” if they are asked if they approve of a government with unlimited powers. If this is true, then we are left with only a single conclusion: The U.S. government is illegitimate.