Law & Society Blog

What makes a legitimate democratic government? The administration believes that as long as it means well and seeks to protect us, it cannot lose legitimacy. But isn’t it the restraint on the government’s actions placed by the constitution and by the rights of citizens, a restraint that operates whether the government means well or not?

We are now facing the prospect of congressionally-sanctioned secret proceedings in which the liberties of citizens and residents of the U.S. may be abridged by a secret agency overseen by secret courts (Hanno’s post is here, a new comment on Balkinization by Congresswoman Jane Harman is here). Public court proceedings have been regarded as a halmark of civil liberty and state accountability since the liberal revolutions of the 18th and 19th century. Worse yet: secret police and secret “trials” are associated with totalitarian and authoritarian regimes where they have been used to maintain dictatorship and to oppress the people. Of course I am not suggesting that the administration is a dictatorship or seeks to oppress. On the other hand secret oversight is not much oversight at all. Why would the administration even consider such secret proceedings, which fly in the face of historical achievements of liberty and the principles of accountable democratic government? Don’t they see that they are losing their claim to legitimacy?

Perhaps what is being lost here is not regarded as an essential element of the legitimate, democratic state. Obviously, the state is characterized by power: the ability to lock citizens up and to take their property, or to levy armies and wage war. But a band of robbers has the same power over its members, and the same ability to fight rival bands. In a famous passage from the City of God, Augustin gives this explanation of the difference between a legitimate state and a band of robbers:

How Like Kingdoms Without Justice are to Robberies.

Justice being taken away, then, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms? The band itself is made up of men; it is ruled by the authority of a prince, it is knit together by the pact of the confederacy; the booty is divided by the law agreed on. If, by the admittance of abandoned men, this evil increases to such a degree that it holds places, fixes abodes, takes possession of cities, and subdues peoples, it assumes the more plainly the name of a kingdom, because the reality is now manifestly conferred on it, not by the removal of covetousness, but by the addition of impunity. …

Justice is the difference between legitimate and oppressive uses of state power. Notice that Augustin does not mention intent. The benign oppressor is still an oppressor, because there is no justice.

The NSA and the Specter bill reveal a different approach. Let’s posit that the proposed secret proceedings represent a loss of rights and therefore of justice: they look like the tools of tyranny. Let’s further posit that the administration realizes this. The loss in liberty (it is hoped) will be justified by the increased safety that will flow from such secret methods; the state means well and uses its secret powers to protect its citizens. In the eyes of the administration, the use of methods characteristic of authoritarian regimes must not in itself eliminate the state’s legitimacy. We can do this and still be a free and just society. Even without justice, legitimacy is maintained because the government and courts are righteous. In other words, the difference between the legitimate state and a band of robbers lies in the intention of those in power, and not in the restraint imposed on their actions.

Rights, as limitations on the power of the state, do not on their face distinguish between good reasons for infringment, or bad. We do balance legitimate state interests and compelling necessities of state with the rights of individuals, however. But I believe, as Augustin suggests, that there are some markers of justice (or, as I would call it, liberty) that should restrain the legitimate exercise of state power in all circumstances, regardless of the intentions of those in power.

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