The British
have chosen an amusing recreation for us.
By 4 July, America's founding fathers approved a simple document penned by Jefferson that enumerated their grievances and announced themselves a sovereign nation. Called the Declaration of Independence, it was a blow for freedom, a call to war, and the founding of a new empire.
It was also totally illegitimate and illegal.
So a team of British lawyers came to debate the other night. Some American lawyers joined them in the discussion. Let us do the same. Here are their cases:
The American case for the Declaration
The Declaration is unquestionably "legal". Under basic principles of "Natural Law", government can only be by the consent of the people and there comes a point when allegiance is no longer required in face of tyranny.
The legality of the Declaration and its validity is proven by subsequent independence movements which have been enforced by world opinion as right and just, based on the fundamental principles of equality and self-determination now reflected in the UN Charter.
The British case against it
The Declaration of Independence was not only illegal, but actually treasonable. There is no legal principle then or now to allow a group of citizens to establish their own laws because they want to. What if Texas decided today it wanted to secede from the Union?
Lincoln made the case against secession and he was right. The Declaration of Independence itself, in the absence of any recognised legal basis, had to appeal to "natural law", an undefined concept, and to "self-evident truths", that is to say truths for which no evidence could be provided.
The grievances listed in the Declaration were too trivial to justify secession. The main one - no taxation without representation - was no more than a wish on the part of the colonists, to avoid paying for the expense of protecting them against the French during seven years of arduous war and conflict.
Well, we've just finished discussing the origin of rights and governments. Here is a case to which we might apply those principles. What say you?
18 comments:
In the end, you own, what you can hold. And if you win, you make the law.
I do not think there has ever been a "legal" revolution. The very concept is laughable. If the laws of the land allow secession, then it is not a revolution, but a legal process. And if they do not allow it, it is by very definition "illegal". You might make a case for a situation where the laws are silent on the legality of secession (see the US c.1861), but most nations have laws regarding treason and rebellion, so it's a moot point.
You'll note, I'm speaking only to the legality of a revolution, not the morality or rightness of one. I happen to agree with the principles in the Declaration of Independence. It is one of the reasons I support our government aiding nations whose people rise in opposition to the dictators who oppress them. I do not think that all support must be financial or military, but I do think that as the beacon of freedom in the world, we have the responsibility to support those seeking freedom. And please note, this is not a blanket support for the violent overthrow of governments. Military juntas overthrowing a brutal dictator (ala Pinochet or Saddam Hussein) just replace one dictator with another.
Some would say (I grant this is a strawman, as I cannot name names, but I think the principle is sound) that the US doesn't have to support any such thing. I heard this during Egypt's uprising. Mubarak was a US ally, shouldn't we stay out of it altogether? Absolutely not. He was unquestionably a dictator, and while we had supported him at one time as the lesser of two evils, that did not mean we had an obligation to support him indefinitely. Nor do I think we had an obligation to preemptively cut off support for him (say, after the fall of communism). At the time, there was no popular up swell against his rule, and without that, all we would be doing is fomenting chaos.
And in closing, I would say, if not us, then who. Who stands up for those seeking freedom? The UN? They're the very organization that puts dictators in charge of their Human Rights panel (to include Quaddafi himself). Our European allies? Perhaps if they ever seemed to care to do so outside of their own self-interest (notice that they were gung-ho to help Libya, but no one has lifted a finger to help Syria). Certainly the other great powers (China, Russia, and even India) will not. If not us, then who?
Personally, I think the English were just hoping for an out of court settlement, and a chunk of change to go home with.
Neither side seems to have an appreciation of the legal theories used by the thinkers of that time. The revolutionaries rooted their thinking very firmly in the British Constitution, which, being unwritten, had undergone some large changes since 1066, in the direction of limiting Royal power (and which, in Great Britain now, has gone to explicit "Supremacy of Parliament" - so much so that their Supreme Court is formally a committee of the House of Lords). The colonists' reasoned out the legality of their actions in a very common-law way, a step at a time. The British Constitution didn't work by taking an unchanging text and applying it to new situations. Instead, you chopped off the king's head, fought wars for a while, restored the monarchy, but with a greater role for Parliament, outsted another king...and deduced that the king's powers just weren't as great as they had once seemed to be.
In a system like that, letting the colonists elect their own taxing authorities for a couple of centuries quite naturally led them to conclude that they had a right to this representation. And in the absence of a written constitution, how to say they were wrong? It fit both Parliament's revolt against Charles I and the English national myth they were all brought up on (which always stressed the liberty of the Anglo-Saxons and the ways it was regained). If I remember, Parliament's formal response was to claim that they did "virtually represent" the colonists - reasoning that was pretty easy to reject.
Of course, like a great many "legal" issues on this level, this one was decided in battle instead of court. And a country whose government started with a conquest, and whose Constitution includes Magna Carta, can hardly claim that makes it illegitimate.
Our Declaration of Independence, our social compact's principles statement, building on the concept of governments only being legitimate if they have the consent of the governed (which I take as a first principle) says That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government..... It says this a second time, more strongly [emphasis added]: But when a long train of abuses and usurpations..., it is their right, it is their duty, to throw off such Government....
It goes on to say ...Governments long established should not be changed for light and transient causes....
There are lots of ways to throw off a government that has lost the consent of the people and so has lost its legitimacy. Our Founders (re)invented a most useful one: periodic elections of those who will govern, so that at once we toss the now illegitimate government, grant legitimacy to the replacement, and reaffirm our consent to the form of that government.
Whatever the veneer of form, though, nothing has changed; it comes down to who won the fight. The durability of any toss/replacement depends on one of two things: my guns were bigger than yours. Deal with it. Or, I got more votes than you did. Get over it.
As an aside, this puts a premium on all of us being active in our politics, lest we suffer from Plato's Rule.
Eric Hines
Oh, and it's off topic, but I live in Virginia now -
SIC SEMPER TYRANNIS!
Sic Semper Tryannis!
The British Constitution didn't work by taking an unchanging text and applying it to new situations. Instead, you chopped off the king's head, fought wars for a while, restored the monarchy, but with a greater role for Parliament, outsted another king ...
Hm, I wonder if we could also make the case that the current British government is illegitimate because it also is the product of revolutions?
You could but no Briton who knows and loves his country's history and its insitutions will buy it. (A couple of popes, I believe, made that argument against Magna Carta, and they weren't buying it then, either.)
The ones who don't know might agree their government is illegitimate, but not on those grounds.
On the other hand, there remains a branch of the Jacobite line in Liechtenstein, so....
The kind of people I was talking about probably can't spell "primogeniture."
(A die-hard Jacobite would obviously have no problem with revolutions in general. 'specially if he was a true-blue Scot, per your kick-off post for the Stone Mountain games.)
Sic Semper Tyrannosaurus!
http://images.cheezburger.com/completestore/2011/2/4/a16d69a0-a79f-4d88-862a-375c83367e4e.jpg
It took me a little while to think of it - but of course another major feature of the British Constitution is directly based on a rebellion, namely Henry VIII's "secession" from the Church of Rome. There were one or two precedents for it, but there were no laws in Catholic Christendom permitting it. Naturally, in the view of the Mother Church, that was worse than treason.
I wonder why the British wouldn't buy it. How were their revolutions different?
Well, no one was making those arguments, judging by Grim's summaries - neither side was arguing from the British Constitution itself.
I believe that the traditional approach in British schools is to teach that the Americans should've been grateful for British protection during the French & Indian War, and therefore glad to pay taxes for the debt it'd run up. (I believe Thomas Paine's answer was that, had the colonies been independent, there would've been on rivalry and no war with France in the first place. And the Constitutional arguments never depended on the good motives of the tax, but rather on the right to representation.)
namely Henry VIII's "secession" from the Church of Rome. There were one or two precedents for it, but there were no laws in Catholic Christendom permitting it
Ultimately, the Church is concerned with saving souls. H-8 chose the wrong path.
That's not to say that certain Popes and Cardinals were not interested in earthly power(s).
My point was, that if "legality" for the colonists' behavior is judged by the (unwritten) British Constitution as established in their era - the simple act of rebellion, defying the authority of a king, or even breaking away from a superior power, was not per se illegitimate. The break with Rome was simply a further example. That was my entire point.
We're a little further away from unam sanctam than Henry was, but it wasn't just a whim of one or two popes to assert secular power for as long as they get away with it. Now, of course, the Church would be laughed at if it tried to give orders to kings in the old style, let alone make England a vassal state, as Innocent did to John. Be it the right way or the wrong way, nach Canossa gehen wir nicht.
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