To be legitimate, in terms of birth, means to be born within a recognized, legal and, historically speaking, church sanctioned marriage. The opposite of legitimacy is bastardy. One of the common expressions run out this time of year is that the 4th of July is our nation’s birthday. This begs the question, is the United States legitimate, or a bastard?
Now, this also supposes that the United States, as created by the Constitution at the Constitutional Convention of 1787 and ratified by the various States and which went into effect on 4 Mar 1789, is an actual entity. It is fairly well established law that legitimate political and business entities, incorporated by a group of people in a legal manner, have the legal equivalency of personhood. This was granted in the United States in the 1819 Supreme Court case of Trustees of Dartmouth College v. Woodward.
Now, here my Anarcho-Capitalist friends will launch into a tirade about how no entity can possibly have the rights of an individual human. And they have very well-reasoned and compelling arguments. After all, even if a group of mentally capable individuals not under any form of coercion agree to form a legally binding agreement, be it a corporation or a republic, they will not agree on every single thing after that. Thus, despite the original agreement being legal and binding, it cannot be said that all subsequent actions by the formed entity represent the will of ALL of its members all of the time. It cannot possibly be a perfect extension of the will of its members and is, thus, without any of the rights of those individuals. By entering into the agreement they have willingly ceded part of their individual sovereignty to the collective will of the majority of the group, unless the group’s decision violates the original agreement in some way. The corporation/republic thus is a workable arrangement among free men, but it is not sovereign and it’s existence cannot and should not be used as an excuse to shield the decisions of those who entered into the agreement in the first place, for while they may have ceded some of their rights to their fellows, they did so by volition of their own free will and so bear direct, personal responsibility for the actions of the collective. Thus is the A-C argument, which in no way invalidates the right of individuals to form collectives, but refuses the argument that such a collective possess, in and of itself, rights equal to those of a human person. Thus, it could be said, even by A-C, that a Republic can be born in legitimacy, so long as all its members have agreed to its founding. Historically speaking, while the United States Constitution was ratified by a plurality, it could not be said it was ratified unanimously, thus, at least to an A-C, it is a bastard.
Then, we must address the issue of heredity. For, even if all of those individuals within the United States had ratified the Constitution unanimously, there remains the problem of whether or not their descendants, as they come of age, can opt out of the agreement. After all, they are individuals with free will and inalienable Rights and they may or may not agree unanimously to the agreement. Here is where A-C runs into a problem, in my mind. Go back as far as you want, back to the caveman hanging in the cave with his clan. That individual was born into the social morays, the societal contract, of his people. He got no say whether or not he wished to be part of that collective. Violate those taboos, taboos the individual inherited as part of the existing social compact, and it would probably cost him his life. Even something as simple as shunning or intense un-popularity could be a slow-death sentence. It IS possible, in this day and age, to renounce ones citizenship. It made news recently when the socialite-songwriter Denise Rich and Facebook co-founder Eduardo Savarin did so as to avoid taxes. But, what then? There is no longer any terra incognito. There is no frontier over which one can escape. All the earth is now claimed by one State or another, so one can only, reasonably, exchange one social agreement with another. Or, one can attempt to live in the cracks between societies and remain unnoticed by the authorities. Thus, we get such movements as the Perpetual Traveler, World Citizen or Sovereign Man. While I may agree philosophically with this position, for all practical purposes it is a non-starter. The three movements I mentioned are merely ways to avoid the consequences of not wishing to partake in the social agreement known as the Constitution, they do not amount to a complete rejection, other than mentally, because they do not establish an alternative, they merely attempt to avoid the consequences. So, for all intents and purposes, bastard or legitimate, the baby has been born and won’t be ignored.
All in all, and I think an examination of the history of the United States acting under color of the Constitution bears this out, it must be acknowledged that the birth of the Constitution is philosophically illegitimate. It fails 2 key tests, it was not a unanimous agreement of all parties who fall under it at the time of its inception and those of us who fall under it now have no way to refuse to take part in it, other than to move to some other place where there is a social contract we can willingly accept. What does that mean though, for it to be a bastard? Well, not much. Much like a mutt can be a stronger, healthier, smarter dog than a pure-bred, a bastard can be grown into an entity with greater virility than a philosophically pure but realistically unattainable social agreement. It won’t be any more perfect than anything else this side of heaven, but, if we have the will, it can be a damn sight better than any of the other alternatives. How we go about that is the subject of another post, but I will say I doubt the most effective means is through the ballot box. We simply have too much ground to make up in education first, before we can realistically hope to change anything through a consensus agreement, even if it is only a plurality not unanimity.
We have some scary, dangerous times ahead. The social contract of the Constitution is no longer a baby, bastard or no. It is a geriatric with all the usual problems of old age, the plumbing doesn’t work like it should, its wits are dulled and it is very fragile. It will require a great deal of will for its descendant to not become an Empire. It will mean refusing the trend of the vast majority of history. It can only happen if we can be wiser than our Founding Fathers, able to learn the lessons of history, and work to ensure that the Tree of Liberty does not die in our lifetime. Education and resiliency are the keys. What have you done today to increase them?