"Never forget that everything Hitler did in Germany was legal."Legitimate government versus Dictatorship
- Martin Luther King Jr.
In English, the word "legitimate" comes from the Latin word legere meaning to read. For the Romans, modern political theorists like John Stuart Mill and American founders alike, legitimate government required legislation-- laws which could be READ. That is, they argued that one necessary condition, to limit tyranny of the King, Emperor, or any leader, is to have laws that are written down. Legitimate governments have laws which can be judged, evaluated, and argued because the text of any and all laws, the legislation, is fixed and accessible for all to see and learn.
The principle of open, accessible, and written laws is necessary to support the axiom of Anglo-American law Ignorantia legis neminem excusat (literally ignorance of the law excuses no one, commonly translated as "ignorance of the law is no excuse"). Hence the duty of the governed is to become literate - and read the laws, and the obligation of our leaders is to govern from a source of public, written, laws where words are specific and their meanings are fixed.
The antithesis of legitimate government thus is dictatorship, a system of rule where the spoken word, of a Leviathan or Sovereign, is the law. The power and authority of a dictator only makes sense if one believes in the divine right of Kings-- where the word of God, and hence the word of God's proxy, is infallible. All but the most naive among us recognize the potential for abuse in a system of government where the spoken word of one person governs all. In one of his essays designed to encourage the ratification of the Constitution, in Federalist #51, James Madison explained the need for a government headed by a body of legislators - not a single dictator:
"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."
Of course, under current American law-- those we can read-- we have no official dictatorship. But arguably, the Bush administration is pushing for legislation that would expand, what amounts to, dictatorial powers of the president.
Dear Congress, Please Restore the Divine Right of Kings - at least for me
What would governance look like in a state that devolved from democracy (or even a democratic republic) towards a fascist or dictatorial state? We understand the end point of dictatorship, where one person's word is law-- and rules as a supreme leader. As a matter of distinction, as proposed and adopted, supreme legal authority in the United States rests in documents of words not any person or government official. Article VI -2 of the U.S. Constitution reads:
This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.
What are some of the key powers or authorities of a dictator? First and foremost must be sovereign immunity, another way to say infallibility (reserved only for divinities). With sovereign immunity, the dictator is free to break any written law and cannot be prosecution for any violation. Again, such authority is not bestowed upon heads of the federal executive and such prohibition is declared in the Constitution Article I, with its description of the process and grounds for impeachment.
"Well, when the President does it, that means that it's not illegal."
- Richard Nixon explaining his interpretation of the idea of Executive Privilege to David Frost, 19 May 1977
Nixon's self-serving statement was not surprising, but expected from a man who would be king. Such brings us to appreciate the regime of G. W. Bush. Bush has committed a host of actions fit for a king. And now widely admitted, they are exhibit one:
1. Bush authorized warrantless wiretaps-- in direct violation of FISA, and in violation of the spirit of the Fourth Amendment;
2. Bush ordered renditions for Maher Arar, Khalid al-Masri and others-- in direct violation of federal and international law;
3. Bush ordered an invasion of Iraq without a declaration of war or UN resolution in support of the invasion;
4. Bush authorized violations of the Geneva Conventions on the treatment of prisoners and civilians (cruel, inhumane and degrading treatment)
5. Bush authorized torture of military detainees (I guess one could dispute this claim, it depends on the definition of water-boarding or stress positions); and
6. Bush ordered that at least 14 men to be held in secret prisons, without access to attorneys, the International Red Cross or independent tribunals that could judge the legitimacy of their detention.
George W. Bush - "Any time you hear [that] the United States government talking about wiretap ... a wiretap requires a court order. Nothing has changed ... When we're talking about chasing down terrorists, we're talking about getting a court order before we do so ... because we value the Constitution." (20 April 2004)
George W. Bush - "We strongly believe [that warrantless wiretaps are] constitutional and if al Qaeda is calling into the United States we want to know why they're calling." (17 August 2006)