The Reality Of Constitutional Constraints: Government’s Monopoly On The Legitimate Use Of Force.

Last night, I had an exchange with a Facebook acquaintance who sought my opinion on a video where a commentator stated that no business is required to adhere to any COVID-19 regulations because governors and states have not implemented the regulations by statute or an administratively formulated regulation. My initial reaction was to contemptuously dismiss the video as completely unworthy of my time or attention. In the process, however, I shot my mouth off in a way that led to a bit of a protest from my acquaintance and should serve as an eye-opener to any citizen concerned about the current state of political affairs in our country.

After stating that whoever made the nonsensical video in question “doesn’t understand how government works – let alone how law is made,” I texted the following: “Sometimes, government isn’t about a legal method. It is about force. The government is a legitimized monopoly on the lawful exercise of force. If it strays into the grey areas, its general legitimization of force still carries the day in most circumstances.”

Americans are oblivious to this concept. After all, we live in a society where most of us think that there is a constitutional presumption in favor of restraining the government’s powers when it conflicts with whatever broad conceptions of liberty that we have. Properly interpreted, the federal constitution does, indeed, provide for such a presumption, but American courts have not recognized this presumption, rendering the constitutional provision that would dictate such a presumption a legal nullity. Indeed, they have reversed it and created a presumption of constitutionality for a government’s actions.

We can fight over the proper interpretation of the federal constitution all day. It won’t mean a thing because our argument won’t change the state of the law.

The reality is that government is really an expression of a community’s collective right to self-defense – a concept ably expressed by Thomas Hobbes in the Leviathan, John Locke in his Two Treatises of Government, and Charles Montesquieu in The Spirit of the Laws. Government exists to defend a common set of values. In America, we generally define these as life, liberty, and the pursuit of happiness, which encompass various areas of legal rights.

Because its role is to defend a collective set of values, government inherently possesses a license to legitimately use force. In more developed civilizations, it holds an exclusive monopoly on the legitimate use of force with very limited exceptions. For example, if you walked down the street and decided to literally kick the tire on my car, I cannot shoot you for “assaulting” my property.

In a self-governing society, we legitimize the government’s right to use force for the common good, and, at the same time, we accept the fact that government has tremendous and exclusive discretion on when, where, and how to use that force. Because we value liberty, we also seek to constrain the license by which we have legitimized the government’s use of force by various declarations of individual rights and certain societal norms.

Our constraints on government’s use of force, however, are subject to the primary imperfection of human language, namely, ambiguity. A person trained in logic and endowed with an overwhelming sense of public duty can easily stretch ambiguous limitations to create more room for government to exercise force. The exercise of force in this instance may, indeed, exceed the license of legitimacy, but it nevertheless compels and constrains individuals’ behavior without a remedy or until it is checked.

Furthermore, in a self-governing society, our constraints on government’s use of force are also subject to the same evil that necessitates government in the first place – mankind’s moral depravity. Humans have desires – some as simple as ensuring their survival in a harsh world, others focused on the aggregation of power. Those desires – the products of moral depravity – sometimes animate those individuals who comprise our governments and wield the state’s authority to legitimately exercise force. Consequently, they blatantly exceed the constraints that we place on government’s use of force to fulfill whatever personal desires animate them.

From this principle, we can derive another. We can argue until Gabriel sounds his horn about whether a government’s exercise of force loses its legitimacy when it exceeds the constraints that we have placed on it, but might still prevails. Government may illegitimately exercise force to compel compliance with its edicts – lawfully established or not, and it will still prevail against efforts to defy its edicts. Such is the frailty of our constitutional constraints upon it.

What about the American Revolution, you ask? More than a hundred years prior to the American Revolution, John Locke described such an action as an appeal to heaven. The American Revolution represents the ultimate act of wholly withdrawing any license to legitimately exercise force from a government because the colonists were denied an opportunity to participate in the governance.

America’s current plight is not the same. We still participate in our government even if it exceeds the license of legitimate force that we have granted it. In other words, we do not need to reject our system of government, but rather the people wielding its powers. We have a means to do so via the ballot box. Until then, bear in mind that government still inherently wields force that will still prevail in the overwhelming majority of cases even if it is exercised illegitimately.

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Cameron L. Atkinson

Cameron Atkinson is a Christian, a published constitutional scholar, a trial and appellate lawyer, and a general hell-raiser. He has received national recognition for his victories in civil rights cases, especially in First Amendment cases. Attorney Atkinson stands out for his written advocacy, and he has taken the lead role in briefing cases to the United States Supreme Court, the United States Court of Appeals for the Second Circuit, the Connecticut Supreme Court, the Connecticut Appellate Court, and multiple New York appellate courts. Attorney Atkinson has successfully represented clients facing criminal charges, including successfully arguing for the reversal of a sexual assault conviction before the Connecticut Supreme Court. He will accept requests for public speaking engagements on a case-by-case basis.

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