Reply to Lino Graglia: The Constitution was no coup

In his column, Lino Graglia seems to view both the framing of the Constitution and Marbury v. Madison as coups d'etat, in which visionary elites imposed their theories on a passive populace. This view is popular with Marxists who deny the legitimacy of all our liberal institutions, with those few remaining ancien-regime conservatives who see elite rule as natural and enlightened, and muddled moderates who think it's just wonderful how much progress we have made from the quaint bad old days to the gloriously unprecedented present. However, it insults the intelligence and self-posession of our ancestors who created the present federal government by electing conventions of the people of each state to ratify the proposed constitution on condition that a bill of rights be added. Their collective existence as the peoples of particular states, in turn, depended on constitutions, ratified by popular conventions after public examination, which began with similar bills of rights.

Graglia's coup model lets him present this country with a false choice between the rule of a mystical elite and the divine right of the majority, by ignoring the question of consent. Graglia is of course correct that a legal right is "a creature of law and government," but in America law and government are, in turn, creatures of the consent of the governed (as long as the governed find them preferable to the alternative).

Graglia presumes a natural right of "the living" to govern each other, though this country doesn't believe that living Iraqis should govern living Kuwaitis. Who is this all-powerful "we" which ultimately reserves the right to stick its "collective judgement" into everyone's private business?

The self and government have been the past generation's largest growth industries, so that the single term "self-government" is used to mean several mutually exclusive things: an individual governing his antisocial impulses, an individual's autonomy, a group's autonomy, and the activity of people who spend all their time running around governing each other in order to maximize their national or community "self-government."

What could possibly induce me to obey a majority which attempted to control me in some way not provided for in the text of the contract in which I agreed to be governed by them? And if other Americans wanted to renegotiate our contract's fundamental provisions, what would bind me to go along with them?

I do not criticize Graglia disagreeing with me, but for acting as if he had never heard of the question of the consent of the governed.

February 23, 1992