“The fabric of American empire ought to rest on the solid basis of the consent of the people. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.” –Alexander Hamilton
Simply put, legitimate foundation means the will of the People at large, while legitimate authority is the express permission granted by the People to the government to perform some function.
Put together, they form the philosophical foundation of the powerful idea that man does not exist for the state, but that the state exists for man.
The idea that the government should exist according to the will of the People and solely to benefit the People at large was revolutionary in the 18th Century. Previously, governments primarily benefited those governing, or special interests.
The American Founders taught that the will of the People, as expressed through constitutional means, is the only solid, sustainable, and legitimate foundation of republican government.
This does not mean, however, that they were referring simply to the concept of majority rule alone, as we learn from Federalist Paper #51; the idea is to guide the nation by the will of the majority, while protecting minority rights (i.e. preventing the majority from taking private property).
Thomas Jefferson spoke of legitimate authority in the Declaration of Independence when he wrote,
“…That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — 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…”
The United States Constitution was the first (and to my knowledge the only) constitution to be instigated by, or to have originated in, the People, then ratified by the People.
In other words, the People, through their colonial representatives, called for the Constitutional Convention of 1787. Representatives at the Convention represented the People within their respective territories–not the government itself.
They were authorized by the People to do the will of the People. Our Constitution was initiated and created from the bottom up, rather than dictated from the top down.
Then, after its creation by the representatives of the People, the Constitution was taken back to the People–once again through their colonial representatives–to be ratified, or accepted.
Previously, the historical norm was for the government–whether through a monarchy, aristocracy, or other form of ruler’s law–to dictate from the top down the laws and constitutional forms that the People must obey.
As David Hume wrote in 1752,
“Almost all the governments which exist at present, or of which there remains any record in story, have been founded originally either on usurpation or conquest or both, without any pretense of a fair consent or voluntary subjection of the people.”
Why It Matters
To drive the point home with these critical concepts, think of illegitimate versions of the same concepts.
For example, illegitimate foundations of government would include a government being founded by the will of a monarch or a dictator, a special interest group, one branch of government solely, etc. and primarily to protect and benefit such individuals or groups.
Illegitimate authority would include any government imposing arbitrary laws without permission from the People to do so through constitutional means, any branch of government engaging in extra-constitutional activities; a special interest group, such as a banking cartel, exercising undue influence upon the People without their consent; etc.
Any time a government, individual, institution, or special interest group imposes any law, regulation, policy, program, or procedure without the express permission of the People through constitutional means–and backs it up with force and violence–tyranny ensues.
In fact, the word “tyranny” itself originates from the Greek, meaning “illegitimate ruler.”
It’s like your in-laws meddling with your children — only much worse, since it usually involves pesky things like theft, murder, rape, and pillage.
Danger From the People
However, an even more important point must be made, which is that the greatest danger to popular governments lies with the people themselves, rather than with illegitimate rulers or laws.
With the right and ability to vote and legitimately influence public policy comes the temptation for the People to vote themselves benefits from the national treasury. As Benjamin Franklin wrote,
“When the people find that they can vote themselves money, that will herald the end of the republic.”
Our nation flipped this ruinous switch in 1913, with the ratification of the 16th and 17th Amendments and the passing of the Federal Reserve Act. I’ll save my analysis of these for another article.
The point is that with rights and privileges come responsibilities. We are so blessed in America to enjoy a constitutional structure based on legitimate foundation and legitimate foundation. However, this also means that We the People are primarily responsible for the maintenance of our freedom.
This requires education. As Thomas Jefferson wrote,
“I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”
Federalist Paper #38
Federalist Paper #22