Liberty, Prudence, Imperfection, and Law

“Our Crisis of Legitimacy,” By Bruce Frohnen

Dallas police shooting memorial, July 12, 2016.

Many of us who are shocked, saddened, and angered by the rash of riots and assassinations aimed at police officers in recent weeks have been quick to blame the rhetoric of racially charged organizations like Black Lives Matter and both the rhetoric and the policies of politicians like Barack Obama. In no way dismissing such criticism, it seems important to point out that the current crisis goes beyond hateful rhetoric, constant playing of the “race card,” and even the damage done to the rule of law by travesties like the FBI’s failure to recommend Hillary Clinton’s indictment for her mistreatment of classified communications while secretary of state.

We are now experiencing just a taste of the future before us as the “fundamentally transformed” society promised by President Obama collapses even before it is put into its final form. It is the entirely predictable fate of a country once devoted to ordered liberty that has allowed itself to be reshaped by the ideology of social democracy. Many observers would insist that the real culprit, here, is multiculturalism—that poisonous creed according to which racial and ethnic identities and demands for “recognition” should trump the common rights and duties of a free nation. But multiculturalism itself is a consequence of the disappointment and resentment born of the inevitable failure of social democracy.

Whether in its totalitarian or softer modes, centralized power wielded in the name of material security and equality brings disaster. Even progressives now claim to reject Soviet totalitarianism, choosing to pretend that its application in places like Cuba and Venezuela appreciably differs from that model. European social democracy now is the stated pattern to be applied. And if social democracy could work it would work in these placid, post-Christian, homogeneous societies. But it does not. Instead, these societies have atrophied and begun dying out as their people have ceased procreating. Their leaders have even taken the rather drastic step of “importing” millions of new citizens to stave off economic collapse—a massive mistake the consequences of which are only beginning to become manifest.

The situation in the United States, historically, has been much better in that social democracy has never fully taken root, here. But the transition under our current, most radical president in American history has been explosive. Ours is a nation with multiple races and ethnicities, a nation of regions as well, that is held together by a necessarily thin set of institutions and ideas focusing on due process, opportunity, and local self-government. Here the drive to finalize the social democratic state has already provoked a crisis of unmet, irrational expectations produced by an overpromising and underperforming central state.

One can point again and again to statistics showing it is factually untrue that police officers intentionally target African Americans for violent treatment and that it is factually untrue that African Americans are killed by police officers in numbers disproportionate to relevant criminal activity. Even the Washington Post knows this. Nevertheless, it is wrong to simply dismiss the anger and resentment of African Americans in particular toward a system that has promised them peace and prosperity through government programs, only to produce broken homes, welfare dependency, and massive levels of crime.

Progressives have sold Americans, and poor Americans belonging to racial minorities in particular, a lie. They promised that increased power in Washington would bring happiness, freedom, and prosperity to all. The result for all too many has been seemingly inescapable misery. People who are repeatedly lied to eventually will become angry. That anger, even if wrongly directed, is understandable, and it goes to question the legitimacy of our current regime.

Crises of legitimacy may have many different sources. Corruption, oppression, racial stratification—all these can serve as causes for the feeling on the part of some or all of the people that the social contract has been broken. One need be no modern liberal to recognize that there is an agreement, a kind of consent in the Burkean sense, underlying all governments and social structures. The elements of this agreement may be radically different, with salvation, peace, or prosperity as exemplary key elements. Governors and governed cooperate only when there is at least tacit agreement on the goals of the government and the manner in which those goals will be pursued.

Too often overlooked, here, is the fact that a country’s goals and means of achieving them are shaped and constrained by the kind of society in which political and legal institutions exist—and in which those institutions may undermine. For example, it is a dangerous distortion to say that medieval societies granted the upper classes a right to rule on the grounds that they would defend from physical harm the lower orders they themselves often oppressed. The calculus thus referenced oversimplifies the social contract between the dead, the living, and the yet unborn in a particular place and time. A fuller and more accurate understanding of the social contract would encompass the social, political, and religious norms guiding the conduct of all concerned. For example, even a fine warrior king in the medieval era would lose legitimacy and often his power if found to be an enemy of his people’s faith or an arbitrary tyrant. Thus legions of monarchs were made to promise on ascending power that they would preserve the laws and orders already existing within their realms.

Historically, the American social contract supported a nation of varied but relatively close-knit communities governing themselves under God. These communities were characterized by significantly differing local institutions, beliefs, and practices. They were joined by a common understanding of the importance of self-government, ordered liberty, and virtue understood in its Western, Judeo-Christian sense. They governed themselves at the state and local level within the loose structures of a federal, constitutional government committed to mutual protection, free commerce, the rule of law, and application of that law through settled procedures.

Decentralized government like America’s is difficult to maintain, especially in times of crisis. Such crises occurred here as in other countries—involving issues of race, corruption, economic dislocation, and war. Promising to end such problems (in the case of racial tensions through openly racialist policies) progressives over the course of the early twentieth century constructed a new, more centralized federal government. In the second half of that century the limiting structures of our Constitution were undermined as progressives sought both good and bad ends. In the name of due process and equal protection of the laws for all, but also in the name of material equality and government-provided benefits, the newly centralized state increasingly was granted new powers over public and private conduct. The promise was that these new powers would be used to transform the people’s lives, ending conflict and bringing happiness and prosperity.

The result, in short, was construction of a new constitutional order resting not on law but on political promises made by elites directly to masses of people, unconstrained by their natural attachments to more local, intermediary associations. The result was construction of a nascent plebiscitary democracy rooted in a new social contract. Instead of self-government and ordered liberty, the people were to be provided with substantive goods from a powerful central government. But such governments do not—indeed cannot—perform on the promises they make. Their policies undermine the bases of economic prosperity and ordered liberty by replacing self-reliance with welfare dependency, replacing customary standards that smooth the operations of free markets with ham-fisted regulations, and undermining the natural ties that alone prepare people to become productive members of functioning societies.

Obamacare, the stealth expansion of welfare programs and elimination of work requirements, the flooding of our communities with immigrants here illegally or only quasi-legally, the imposition of rules and mandates bankrupting businesses and localities, and the promotion of an ideology of resentment toward America’s traditional culture and its limited government. All these elements in the completion of the social democratic state have aimed to increase dependence on that very state. They have succeeded in fostering such dependence. What they have not done, and what they cannot do, is produce a functioning society. That promise is false. We should not be surprised that the result is anger. Our police, forced to bear the brunt of the attack on traditional institutions while serving effectively as tax collectors in petty enforcement proceedings, are only the most obvious victims of an establishment consuming its own supporters in a feckless attempt to maintain power on the basis of false promises.


Bruce P. Frohnen is Professor of Law at the Ohio Northern University Pettit College of Law.

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