Can Legitimacy by Grounded in Poetic License? John Locke and the "Dead Hand" Problem

           Legitimacy, the near magical property that distinguishes the use of naked power from lawful authority, is conferred upon the state in three ways, the German sociologist Max Weber taught a century ago. There is tradition, of a sense of authority derived ancient custom and usages; think of the passing of a kingship from father to son.

            Charisma, a second source of legitimacy, is that j’ne sais quoi quality that attaches to figures larger than life. We yield to them for reasons we cannot fully comprehend. Think of a celebrity, or, frighteningly, of Adolf Hitler in Nazi Germany. Charisma is a gift, initially thought to come from God or the gods; it is given opaquely. We cannot account in rational terms for its conveyance.

            And then there is rational authority, a sense of authority conferred by operation of rule-bound behavior. We can trace the lineage of authority to application of the rule in question. In the liberal democratic tradition, we say that consent of the governed is the basis of legitimacy. In the United States, we say we are governed by laws, not men. The transparent rule of law governs the transfer of power.

            All of which is a long way of saying that at the core of the concept of legitimacy in the United States is the thinking of John Locke, whose Second Treatise of Government, published in 1689, is a foundational text in American intellectual history. (I know my good friend and prodigious scholar Andrew Warren thinks I may value Locke too much. I believe Professor Warren once referred to Locke in disparaging terms, urging me to look, instead, to the writings of Thomas Jefferson as a fountain from which our principal ideas were drawn.)

            But consider the anomalies the theory of consent yields.

            Writes Locke in Chapter Two of the Second Treatise: “That all Men are naturally in that State [of natural liberty], and remain so, till by their own Consents they make themselves Members of some Politick Society;…”

            The assertion is absurd.

            I am a lawyer, and hence I took an oath to protect and defend the Constitution of the United States. I agree that by my “own Consent” I have undertaken to regard the sovereign’s acts as legitimate. But before that oath, what consent did I convey to be ruled and governed by laws and institutions of strangers? What do I, or should I, care about the intentions, aspirations and goals of founders long since dead? Has the man on the street ever given consent to be governed in the manner in which he is now?

            Law students are often introduced to this conundrum in the form of the so-called “Dead Hand” problem, usually in the form of an essay entitled “Textualism and the Dead Hand of the Past,” written in 1997 by Michael McConnell. The first sentence of the article states the problem: “The first question any advocate of constitutionalism must answer is why Americans of today should be bound by the decisions of people some 2012 years ago.”

            In other words, whatever it was that the founders and ratifiers of our Constitution thought they were doing, what do their dead hands have on the prospects of we the living? Consent of the governed? Sure, it sounds nice in theory, but, practically speaking, it was the law rightly calls a legal fiction, just as is Locke’s seminal concept of the “state of nature.” All of us have come of age in a world created by others; we accommodate ourselves to its contours, and make such pragmatic adjustments as we deem necessary to achieve our goals. But consent? None of us were present at the founding.

            I realize how ridiculous this may sound to some of you. Of course, it is impossible for each person to give actual consent to the laws and institutions governing us. But didn’t lock say we remain free, in the state of nature, until such time as we, as individuals, give our “own Consent”?

            At some law schools in the land, first year students are asked by show of hands in their Constitutional law courses how many of them would have consented to be bound by the Constitution as drafted at the founding. A surprising number, indeed, sometimes the majority of those polled, say they would not have agreed. What, then, makes their allegiance to what the document has come to signify worth anything now?

            This is far from an abstract or idle rumination. No less an institution than The New York Times urges us, in its 1619 Project, to reimagine American history. We were founded 400 years ago, when the first slave arrived from Africa. Our institutions are steeped in violence and hypocrisy. The Declaration of Independence? A fraud. The Constitution? A contract with the devil. Our current institutions? Steeped in oppression. There was, and cannot ever be, consent to injustice.

          We live, in fact, on this view, under conditions of illegitimacy. Our founding narratives of government by popular consent is fraudulent. We the people can and should demand a new and different order. That is the claim.

            I’m hard pressed to argue that this claim is without merit. The Dead Hand problem is a real one. At most, we amble along pragmatically, accepting foregone generations's consent as our new tradition. The basis of legitimacy in the United States has shifted from rational to traditional grounds. At least that argument can be made.

            So how to pour the new wine of our present discontent into the old skins of Locke and consent, the Declaration of Independence, and the Constitution? It’s a heady challenge, one for the generation now coming of age and having to contend with a world in which little appears to cohere and make sense.


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