The Canadian Red Ensign

The Canadian Red Ensign

Thursday, January 30, 2014

Kings and Constitutions

Plato and Aristotle, philosophers of fourth century BC democratic Athens who envied Sparta her kings and aristocrats, observed that there are three simple forms of government – the rule of the one, the rule of the few, and the rule of the many – which observation has been a fundamental of political science ever since. They also observed that governments can be good or bad and that the basic difference between the two is that bad governments use their power to benefit themselves at the expense of the larger society whereas good governments use their power for the benefit of the common good. While this is hardly an earth shattering observation it is the source of a question that has troubled political science ever since – what is the source of a government’s legitimacy, its right to govern?

The anarchist would answer that there is no such thing as government legitimacy and that all governments are illegitimate institutions that seek to monopolize coercive force by forbidding in others the actions they themselves commit. While there are some things that can be said in favour of this, anarchism is ultimately untenable because it is incompatible with human nature. Men are social beings, whose nature it is to live together in community and society rather than apart from one another in isolation. We therefore require a set of laws and an institution that will make, administer, and enforce those laws. We need government.

Having ruled out the anarchist position, we are left with basically three possible answers to the source of government legitimacy. A government that is legitimate, that has the right to govern, is either delegated that authority from above, obtains it from below, or finds it to be inherent in itself.

The last of these possibilities is as unfeasible as the anarchist answer. While a distinction can be made between the idea of a government finding the source of its authority within itself and that of a government exercising its power for its own benefit the two concepts are so close to each other as to make the technical term for a government that derives its authority from itself, autocracy, a virtual synonym for bad government. It is not surprising, therefore, that most political theorists have held to one variation or another of the other two options.

The second possibility, that government obtains its authority from below, from those it governs, is the prevalent theory of the modern age. It is the foundation of the modern theory of democracy (1) and proclaimed to be a self-evident truth in the preamble to the American Declaration of Independence. Even Communist governments professed a belief in this view of government legitimacy and hence frequently renamed the countries they took over "The People’s Republic of Such-and-such". In the democratic, liberal, West this was regarded as a pretence because the states so described were one-party police states, which held phony elections for show, in which the government was not accountable and the people were tightly controlled. The Communist response was that the Communist Party was the voice of the people and therefore only in a Communist state where the Communist Party controls everything could the government truly be said to represent and derive its powers from the people. In this we see that the idea that governments derive their powers from the people has more than one interpretation and in not all of these interpretations are frequent elections, multiple parties, competition or even freedom itself absolutely essential to the idea.

Thomas Jefferson’s Lockean assertion notwithstanding the idea that governments derive their legitimate authority from those they govern is not at all self-evident. Indeed, it would be more accurate to say that it is self-evident that they do not so derive their authority. If this theory were applied to any other form of authority it would undermine that authority. Imagine telling parents that the only legitimate authority they have in the home is derived from the consent of their children! To say that authority flows from the governed to the governor is to assert nonsense, to contradict the very nature of authority. If legitimate authority is something given to the possessor of that authority from those under that authority then what happens if someone under authority does not like a law passed by that authority and decides to withdraw his consent?

If those under government can withdraw their consent from the authority of that government at any time then they have not conferred any real authority on government at all and we have anarchy. If, on the other hand, the authority the governed confer upon government by their consent cannot be withdrawn the government can do whatever it wants with the authorization of “the people” and we have tyranny. Jean-Jacques Rousseau, the “father of modern democracy” is also the “father of totalitarianism” who asserted that once a government was formed that expressed the “General Will” of the people no dissent from the will of that government should be tolerated. The middle solution between these two extremes is to do what most liberal, Western, democracies do which is to schedule regular elections and to treat these as a binding contract conferring authority which must be obeyed on the government until the next election. Whatever might be said in favour of this solution, years ago American conservative commentator Samuel Francis noted a growing tendency in modern mass societies governed by modern bureaucratic democracies to combine the lawlessness of anarchism with the oppression of tyranny in a synthesis he dubbed anarcho-tyranny. The meeting point between two extremes can be a moderate mean that is preferable to either extreme but it can also combine their worse points into one.

Some would argue for the idea of government legitimacy based upon popular consent based upon the fact that the worse a government is the more likely the people it governs are to either leave if they can or to organize against the government and rise up and overthrow it. This argument, however, is more a description of the natural consequences of governing badly than of the source of a government’s right to govern. Ultimately, the present popularity of the idea of authority by popular consent is due not to is being self-evident nor even to its having convincing arguments in its favour, but to the fact that it flatters the people, telling them that they are the true bosses and that those in authority over them are so by their allowance and toleration.

What about the remaining possibility that the right to govern is delegated to civil authority from above?

For those of us who are Christians this possibility is not optional. It is explicitly taught by St. Paul in the thirteenth chapter of his epistle to the church in Rome:

Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same: For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.

While among those who profess Christian faith there are some who would set aside the Scriptural authority of the writings of St. Paul against the explicit recognition of such by St. Peter and the orthodox tradition of the church, what the Apostle has taught here is also present in the direct words of Christ Himself Who told Pontius Pilate “Thou couldest have no power at all against me, except it were given thee from above.” (John 19:11).

The idea that authority is delegated to civil government from a higher authority – God, in the words of Jesus and St. Paul quoted above – is in keeping with what is observable about the natural movement of all other kinds of authority, i.e., that it flows from the top down. It runs contrary, however, to the humanistic spirit of the Modern Age. That spirit is all about the emancipation of man’s will from external constraint and his freedom to re-make himself and the world around him in accordance with his own desires. The only authority recognized by the spirit of modern man is that of his own will and such authority as he chooses to set up. Against the Christian doctrine that civil government derives its authority from above, from God, the modern spirit asserts the accusation that such a teaching is a recipe for arbitrary and unaccountable government. This, however, is simply an indication of the practical, if not overt, atheism inherent in the modern worldview. For if civil government’s authority is delegated to it by God then civil authority is accountable to God for its stewardship of that authority. It is government that bases its authority upon the will of man that is truly unaccountable and arbitrary. Indeed, the teaching of the divine origin of the authority of civil government is a doctrine that limits government authority, for if God were to delegate unlimited power to civil government He would be making civil government equal to Himself. The power God delegates to civil authority must therefore be limited and it is limited by the purpose for which God has delegated that authority, identified by St. Paul in the passage quoted above.

There is another way of thinking about civil government’s authority in which it is delegated from above. That is to regard a country’s constitution as being a higher authority than its government and to regard the government’s authority as being delegated to it by the constitution. This need not be regarded as a substitute for the Christian doctrine or a theory that is in competition with it. It is completely compatible with it if we think of the constitution as being the vessel by which authority is communicated from God to government.

Today, the word constitution is often understood to mean a legal document listing and limiting the offices and powers of government. This is not the sense of the word I am using here. I mean constitution in the sense in which Aristotle used the term in his Athenian Constitution. In this older sense of the word a constitution is a system of organization. It could be defined as “the way things are set up”. In this sense of the word, the constitution of our American friends and neighbours is not the document that begins “We the People of the United States, in Order to form a more perfect Union…” but the federal republican system of government as established by that document. Or it would be had not “the Civil War finally blew the old Republic to pieces” as H. L. Mencken put it in his foreword to James Fenimore Cooper’s The American Democrat.

The framers of the American republic believed that a charter, a document defining and delineating the powers of government, is the best safeguard of the rights and liberties of a country’s people and the security and stability of a country’s constitution against those who would subvert the constitution for their own tyrannical purposes. Hence the association of the concepts of charter and constitution to the point where the distinction was blurred. Mencken’s comment, quoted above, places this belief in a somewhat ironic light, the “civil war” to which he referred having taken place less than a century after the American charter was ratified. With all due respect to America’s founders I disagree with their position and would insist that prescription is the best safeguard of these things. Prescription is establishment by ancient use. It commands the respect that is due to age and conveys the right of presumption due to that which has stood the test of time against the unproven claims of innovation and experiment. The embodiment of a country’s constitution in institutions that have been established as “the way things are” from ages past it is a far greater guarantee of stability and security than the fact that a document “says so”.

The idea of a constitution grounded in prescription as the immediate source of government legitimacy – the ultimate source being God – finds support in an alternative theory of democracy proposed by G. K. Chesterton. Chesterton began the fourth chapter of his Orthodoxy, a chapter entitled “The Ethics of Elfland,” by saying that as he matured he had discovered that the remarks he had heard when he was a boy from old men about how the abstract idealism of youth would give way to pragmatic realism in middle age were all lies. He declared that he now, at the time he was writing, more than ever before, believed in Liberalism, and its ideal of democracy. The principle of democracy, he said, could be expressed in two propositions, “that the things common to all men are more important than the things peculiar to any men” and that “the political instinct or desire is one of these things which they hold in common.” Therefore “the democratic faith is this: that the most terribly important things must be left to ordinary men themselves – the mating of the sexes, the rearing of the young, the laws of the state.” He then went on to say that “It is obvious that tradition is only democracy extended through time.” He wrote:

Tradition may be defined as an extension of the franchise. Tradition means giving votes to the most obscure of all classes, our ancestors. It is the democracy of the dead. Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death. (2)

To this I would add that tradition can also be regarded, in a sense, as extending democracy in the other direction as well, and extending the franchise to the unborn. For tradition is that which binds the generations, past, present, and yet to come, into a common unity. If tradition is regarded as true democracy, democracy that gives a voice to those who have gone before and those yet to come by uniting their voices with that of those present now into one then the biggest problems of the modern theory of democracy disappear. For these problems only arise because the theory of modern democracy, in which “the people” are those who live under the government in the present, asserts the ridiculous proposition that it is the governed govern the government. If “the people”, however, are not just the masses assembled at any one moment but the organic whole of a society through time, including past generations and future generations, and tradition is the voice of “the people” so defined, then the contradiction disappears, for the organic whole of a society through time is much larger than those under government at any given moment, and thus cannot be equated with the governed. Furthermore, whereas modern democracy, which makes the masses of the moment sovereign, threatens the stability and security of the prescriptive constitution, because the opinion of the masses changes from moment to moment and has no common unity other than that which is supplied by the demagogue who seeks to subvert the constitution, tradition, as the voice of the people through time, changes slowly, and is supportive of the prescriptive constitution.

I would further assert, again contrary to the theory of government and constitution so dear to our neighbours to the south, that if the truest and best democracy is that in which the sovereign people is the society as an organic whole of past, present, and future generations, and tradition is the voice of that people, then the institution which best serves as the focal point of the authority conveyed by the tradition-grounded, prescriptive constitution upon civil government, so as to embody the voice of the people in the present, is precisely that institution which serves that purpose in our own constitution, the office of king, presently occupied, by a queen, Her Majesty, Elizabeth II.

Aristotle believed that a constitution which mixed the rule of the one, the few, and the many was potentially the best constitution available to man. This mixture is present in both the parliamentary monarchy of the United Kingdom, Canada, and in the republican system of the United States. In the United States, the office of the president fills the place of the rule of one. It is an elected term position, and in the constitutional scheme of the United States, the president is elected as the representative of the country as a whole, whereas senators are elected to represent states, and congressmen to represent districts. The office of king in our own constitution is a hereditary, life, position. The modern democratic mind finds this objectionable. I would say, however, that it is precisely this that makes the office of king a suitable expression of the voice of the people. The office of king passes from one generation to the next through time, just as in the organic whole of the nation, one generation follows another. As Roger Scruton has put it "the monarch is so convenient a symbol of the trans-generational ties that bind us to our country." (3) The modern mind claims the office is outdated, but it is in our times, times of turbulence and dynamic and rapid change, that an institution that represents stability and steadfastness is most needed.

Those who prefer a republican system over even a parliamentary monarchy and a charter over tradition and prescription maintain that the office of king is a threat to the rights and liberties of the people. It is only bad kings that threaten those rights and liberties, however, and it is no solution to make every office an elected one, for bad elected officials are as much of a threat to the rights and liberties of the people as bad kings, and often a worse threat because, holding office only until the next election, their interest in the affairs of the public is a short-term one. (4) Indeed, a king who inherits his throne and has therefore been trained all his life for the duties of the role he is to fill is far more likely to be a good governor than an elected politician. To be an elected politician one must first run in an election, which indicated a love for power, a quality that is not exactly desirable in one who is to exercise it. There is a reason our basic word for an evil and oppressive governor, tyrant, comes from a root that originally meant "usurper", i.e., one whose love for power leads him to seize it for himself and to exercise it improperly.

There have been bad kings, of course. One bad king was King John who ruled England from 1199 until his death in 1216. He was a particularly bad king. After famously attempting unsuccessfully to usurp the throne from his brother Richard the Lionheart when the the latter was imprisoned in Germany during his return from the Crusades, (5) when John did finally accede to the throne upon Richard’s death with the support of his mother and most of the nobility it was over the claim one rival claimant did so over the claim of his nephew Arthur, son of his older brother Geoffrey. Arthur’s claim was supported by the French king Philip II and John went to war. He captured, imprisoned, and almost certainly murdered Arthur but his military adventures proved disastrous, costing the Crown much territory and earning him the nickname “Lackland.” His efforts at diplomacy fared no better, involving the kind of marrying, divorcing, and bending canon law for which Henry VIII would later become known. Between this and his conflict with Pope Innocent III over ecclesiastical appointments he managed to get himself excommunicated – and at one time the entire country interdicted. He combined incompetence in foreign policy with tyranny at home and eventually faced a revolt from the barons.

That John was forced to sign the Magna Carta Libertatum in 1215 is often cited as evidence that kings are a threat to liberty, that charters are the best safe-guards of liberty, and of the progressive view of history in which society becomes better and better as government evolves towards liberal democracy. This point of view ignores several facts. When John affixed his seal to the document at Runnymede it was a victory for aristocracy not democracy as it was the barons and not a popular uprising that forced him so to do. Furthermore, the Magna Carta was not an innovative, progressive, document. It did not force the king to recognize new restraints upon his powers so much as to acknowledge those already existing in the English law and constitution. Many of the rights and liberties identified in it go back at least as far as the ninth century reign of Alfred the Great of Wessex. Most had been recognized in the Charter of Liberties issued by Henry I upon his accession to the throne a century earlier.

Centuries later there was another revolt against an English king. This time, however, the intention was to subvert the constitution. Following the extinction of the Welsh line of Tudor, the throne of England had passed to the House of Stuart, uniting the thrones of England and Scotland. The first Stuart king to rule over England was James I (VI of Scotland) who was succeeded by his son Charles I. Charles, the first English monarch raised in the Anglican faith, inherited the legacy of the English Reformation that had taken place during the century that the Tudors had ruled. The Church of England, with Catholic bishops in Apostolic succession and a Protestant confession had become the established church. A party of Calvinists who had suffered persecution during the brief return to Roman Catholicism during the reign of Mary and many of whom had fled to Switzerland where they were infected with republicanism and Presbyterianism, had been gradually increasing in strength since the reign of Elizabeth I. Not at all pleased with the Elizabethan settlement, they increasingly demanded that the Church of England be stripped of bishops, priests, vestments, ornaments, liturgy, and anything that did not come directly out of the pages of Scripture. These demands were resisted by King Charles who wished to keep the Anglican Church the way it was. When he married a Roman Catholic and allowed her to keep and practice her religion, the Puritans saw this as a conspiracy to re-establish Roman Catholicism in England. They became paranoid and their demands became increasingly odious and personally offensive to the king. They hijacked the discussion in Parliament, in which they had become the dominant party, refusing to co-operate with the king or deal with the government business before the Parliament, turning it instead into a soapbox upon which to vent their hatred of Roman Catholicism. Eventually the king dissolved Parliament and governed without it for eleven years. This was within his constitutional right at the time, and he governed well, but it infuriated the Puritans and when he called Parliament back together they were even less willing to co-operate. It broke out into the English Civil War, the result of which was that the king was arrested and, in a kangaroo court conducted after the Puritan army forcibly removed his supporters from Parliament, condemned to die. (6)

If King John had been a bad king because he ignored the established constitution which his barons forced him to acknowledge in the Magna Carta, the Puritans who rebelled against King Charles I, illegally tried him for treason and killed him, were determined to overthrow the established constitution, both of the state and the church. While they called Charles a tyrant, he, unlike John, was a popular king. The Puritans, on the other hand, used the power they seized to oppress the people. They stripped the churches of their organs, ornaments, and other decoration. They called these idolatrous and claimed to be motivated by ideals of purity and simplicity but the effect was to rob the people of the beautiful art and music that had been universally accessible in the churches. They got rid of the festive seasons of Christmas and Easter and passed laws forbidding sports and amusements on Sundays, even outside church hours, although this was the only day of the week such were available to them.

In his final speech before his death, King Charles insisted that the liberty and freedom of the people consists of "those laws by which their life and their goods may be most their own" and not in blurring the difference and distinction between subject and sovereign. He pointed out that had he submitted to the demands of the Puritans, had he "given way to an arbitrary way, for to have all laws changed according to the power of the Sword", he would not have been brought to the scaffold and so he was "the martyr of the people." The subsequent abuse of the people during the Puritan interregnum more than justified this assertion.

In the example of King Charles, rightly canonized a saint by the Anglican Church in the Restoration, we see the example of how a king can be the upholder of the constitution and defender of the people protected by that constitution, against forces in the elected assembly that seek to subvert the constitution and oppress the people in the name of liberty. This, of course, is the proper constitutional role of a king, and the reason the office of king will never be outdated, despite what progressives and modernists may say to the contrary.

(1) There have been other theories of democracy which do not rest upon this idea.

(2) G. K. Chesterton, Orthodoxy, (New York: Image Books,1990; original publisher New York: Dodd, Mead and Company, 1908), p. 45.

(3) Roger Scruton, A Political Philosophy, (London: Bloomsbury Publishing, 2006), p. 11.

(4) This argument was developed by Hans-Hermann Hoppe in Democracy - The God That Failed: The Economics and Politics of Monarchy, Democracy, and Natural Order ( Rutgers, New Jersey: Transaction Publishers, 2001). Note that Hoppe, while arguing that monarchy is preferable to democracy, is himself an anarchist.

(5) John is remembered for this more often than for the events of his own reign, even the signing of the Magna Carta, for the simple reason that it became the background to the Robin Hood legend, in which the villainous king-to-be is depicted as the sinister mastermind behind the outlaw’s main enemy the Sheriff of Nottingham.



  1. -- Men are social beings, whose nature it is to live together in community and society rather than apart from one another in isolation. We therefore require a set of laws and an institution that will make, administer, and enforce those laws. We need government. --

    That's a non sequitur. What your argument needs is to establish that men need laws determined and enforced by a central authority pre-indemnified for its coercions, which is open to dispute both on historical and logical terms.

    1. The intermediate part of the argument, which I admittedly glossed over, is that man's social nature results in a need for laws because man's individual nature, no less real than his social nature, generates the potential for conflicts of interest and therefore the need for a means of resolving disputes. This means must come with authority or it would be useless. How centralized the authority must be depends on the size and level of organization of the society.

  2. I have wondered why when Christian republicans like Glenn Beck or David Barton are not challenged more often when they claim that our rights are "self-evident" from God. Why is it that these same "rights" are not found in Sacred Scripture or in Church tradition for the 1800 years preceding the birth of America?

    1. "Self-evident" is an expression used to avoid having to give evidence for one's assertions. If you have nothing to back your statement up say that it is self-evident. It is amazing how often that works even if what you are asserting flies in the face of all evidence. Thomas Jefferson asserted that it was self-evident that all men are created equal. The idea that all men are created equal contradicts the ubiquitous evidence that men are not equal in any observable way. Yet Jefferson's assertion is accepted by millions over the evidence available to their own eyes.

  3. I don't get one thing here - the "respect" for American founders. From thelogic of your statement it would follow that hey were rebels against lawful, God-given Royal authority?

    1. That is true. I have little to no sympathy for the rebellion of the American colonists against the least tyrannical government of the day. Their independence was eventually established however and I have some respect for their work in establishing a new country. I maintain the superiority of parliamentary monarchy over crownless republicanism but their original republican model was a good runner up, however briefly it lasted.

  4. The general sentiment of this piece is laudable and I broadly concur with most of your points. Two quibbles:

    The middle solution between these two extremes is to do what most liberal, Western, democracies do which is to schedule regular elections and to treat these as a binding contract conferring authority which must be obeyed on the government until the next election.

    Not really a binding contract because most of the government in a democracy (the bureaucracy) is unelected and routinely disobeys the written laws of the land. In democracy the executive branch is typically vested with the right/duty on paper to compel the bureaucracy to enforce laws as they are written, but the power to actually do this is so eroded that there's barely even the pretense of such an arrangement any longer.

    Also, putting aside the confidence vote that can (in many democracies) cut short the duration of the "contract" as you put it by bringing early elections, as democracies mature the policies of the factions contending for office tend to merge so as to soon render the differences in governments before and after elections nearly unnoticeable.

    The last of these possibilities is as unfeasible as the anarchist answer. While a distinction can be made between the idea of a government finding the source of its authority within itself and that of a government exercising its power for its own benefit the two concepts are so close to each other as to make the technical term for a government that derives its authority from itself, autocracy, a virtual synonym for bad government. It is not surprising, therefore, that most political theorists have held to one variation or another of the other two options.

    Authority is itself divine and authority (not power, but authority) justifies itself insofar as it is recognized as such. This is not semantics; this is the providential nature of sovereignty. Constitutional law is basically the name accorded to governmental authority in the United States. It justifies itself insofar as people view it as right/just/true - when it ceases appearing to a person as right/just/true then it is mere power (one meaning of John 8:32 "the truth shall set you free"). Whatever a particular government calls its system/basis (hereditary monarchy, republic, democracy, etc) its authority stems from its very being. In this way the constitutional law of the United States serves the same function (and even is the same thing conceptually) as divine-right kingship in Louis XIV's France.

    1. That is a good point about the bureaucratic nature of democratic government, at least as we know it. The distinction between recognized authority of divine origin and mere power is also well noted. Thank you.