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Lift your lamp beside the golden door, Break not the golden rule, avoid well the golden calf, know; not all that glitters is gold, and laissez faire et laissez passer [let do and let pass] but as a shining sentinel, hesitate not to ring the bell, defend the gates, and man the wall

Tuesday, March 6, 2012

The Rights of Resistance and Revolution Then and Now by George H. Smith 1998 by George H. Smith


[Brackets] hold sections of the video which are not in the original text transcript, sometimes holding alternate words.
(parenthesis) hold sections of the original text transcript not found in the video

As the American government has become more intrusive, violating the rights of its citizens with police tactics that would have been unthinkable a few decades ago, the right to resist unjust laws has become a [live] burning issue for many Americans, especially militia groups and other [so called] "patriot" organizations. What position should libertarians take on this controversy? Some of us, eschewing [who reject] violence, do not wish to identify ourselves with extreme right-wingers, but this should not prevent us from frankly discussing the right to resist unjust laws and, ultimately, the right of revolution against tyrannical governments. These two rights -- those [that] of resistance and [that of] revolution -- have played a crucial role throughout the history of libertarian thought, especially during the seventeenth and eighteenth centuries, when they were inseparably linked to the theories of natural rights, social contract, and limited government [government by consent] -- those basic principles on which modern libertarian theory is based.
Some libertarians may dismiss this inquiry as of merely historical interest, an antiquarian exercise with no relevance to the modern movement. Surely I am not calling for armed resistance against the American government. No, I am not. But the fact that I do not personally favor armed resistance does not answer the question of whether there exists a legitimate right to resist, as judged by our common libertarian principles.
It is always important to distinguish a right from the exercise or implementation of that right. A right creates a legitimate moral option, but it does not require that we choose that option. I have the right to purchase a car or [the right] to attend a conference, but I am not morally obligated to do either. Similarly, [likewise] the right of resistance means that one has the moral option to use violence in self-defense against government, but it does not mean that one is somehow required to do so.
(Personally, when dealing with government, I am a pacifist on pragmatic grounds. Governments are extremely efficient in the tactics of violence, and, as every bridge player knows, it is usually a bad idea to play into your opponent's strong suit. This is the basis for my pragmatic pacifism. In most cases violence simply does not accomplish what it is intended to accomplish. Except in extreme emergencies, as when a life is directly threatened, I do not advocate the use of violence against agents of the American government. I say this not because I think such violence is necessarily unjust or immoral, but because it is invariably self-defeating. Aside from the personal risks involved, violence can play directly into the government's hand by giving it a welcome excuse to violate rights even more in the name of public safety.)
It is my belief, therefore, that the right to use violence to resist the enforcement of unjust laws, though morally justifiable, is normally unwise and imprudent. But I recognize that other people may choose to exercise their legitimate rights in a broader range of cases. I maintain that all libertarians should support these efforts, so long as they constitute legitimate self-defense, whatever we may personally think of the people involved and however we may personally feel about violence. To repeat: we must always distinguish the defense of a right, which is a question of ethics, from our personal judgment as to whether we should exercise that right, [in a particular case] which is a question of prudence.
Modern libertarian theory is steeped in the revolutionary ideology of the seventeenth and eighteenth centuries; of this there can be no doubt. It was from English writers such as Algernon Sidney, [who wrote "Discourses Concerning Government"] John Locke, [who wrote "Two Treatises of Government"] and Trenchard and Gordon [the authors of "Cato's Letters"] that eighteenth century Americans learned their revolutionary catechism. [Thomas Jefferson, for example, adopted as his family motto the statement from Sidney: "Resistance to tyrants is obedience unto God."] Libertarians are generally aware of their revolutionary heritage. What they sometimes fail to appreciate, however, is how detailed and specific our forefathers were about the rights of resistance and revolution. They considered these subjects in far greater detail than have present-day libertarians, but many of their insights have unfortunately been ignored [or lost] by the modern movement. A major purpose of this presentation is to revisit their ideas (in this area and then apply them to current issues and problems.)
Having immersed myself for many years in the revolutionary literature of the seventeenth and eighteenth centuries, I sometimes forget that my enthusiasm is not shared by every libertarian. I am quite astonished when I recall that some dedicated libertarians have never even read John Locke, even though his Second Treatise of Government is arguably the most important and influential book on liberty ever written. Since I shall refer to this literature frequently, [throughout the talk] perhaps I should explain why I think other libertarians should also take it seriously.
(Many people claim to admire the ideas of America's founding fathers, yet few understand how radical those ideas truly are. The American Republic was founded on a revolutionary ideology that dates back to early seventeenth century. This ideology is known by various names: radical republicanism, real Whiggism, individualism, and so forth. The main tenets of this ideology, as they relate to the subjects of resistance and revolution, were fully developed during the seventeenth century, most prominently in the writings of Algernon Sidney and John Locke. These English thinkers exerted a profound influence on Thomas Jefferson, James Madison, John Adams, Thomas Paine, and other founders of the American Republic.)
I recommend that you read such people, not because they will increase your knowledge of history, [though there is certainly nothing wrong with that] but because they will increase your knowledge of liberty [freedom]. Moreover, much of what they say is of practical value to modern libertarians. We must remember that our forefathers faced even greater odds than we do, yet their efforts to establish liberty in various spheres -- religious, personal, political, and economic -- proved far more successful.
The theory of rights and limited government was developed during the seventeenth century. The eighteenth century implemented a liberty that was based on this theory. The nineteenth century [by and large] enjoyed that liberty. The twentieth century destroyed it.
If we want to know how to convert people to our ideas and establish a free society, we should begin by reading our successful ancestors. Their ideas are as fresh and suggestive as the day they were written, however old and dusty the books may be in which those ideas appear.
Philosophy, unlike [physical] science, does not tend to advance through the progressive accumulation of knowledge. The modern student of physics does not need to read Isaac Newton in order to learn about physics. The student, if he reads Newton at all, does so because he is interested in the origin [and history] of his science, not because he expects to find the best presentation of his subject matter. What remains of value in Newton has been sifted and refined by many generations of scientists, and the student can benefit from this cumulative process by reading a modern up-to-date text on physics.
But philosophical theories, including ideas about liberty, do not follow this cumulative pattern. (Rather), they tend to zig forward and zag backward in an erratic and unpredictable fashion. The theory of liberty, as I indicated previously, began to zig noticeably in the seventeenth century. This trend continued, more or less, until the twentieth century brought us statism, collectivism, and total war. This highly retrogressive zag, which is probably the most severe setback that liberty has ever suffered, continued virtually unchecked until the rebirth of libertarian theory [just] a few decades ago.
Let me try to clarify the historical status of the modern movement through an analogy. The Italian Renaissance of the fifteenth century, which was an enthusiastic revival of Greek philosophy, science and literature, paved the way for the Scientific Revolution. The European mind was stimulated to move forward by looking backward at the finest intellectual culture ever produced in the Western World, that of ancient Greece.
As libertarians we look forward to a revolution in liberty, but this lies somewhere in the future. We are currently in our renaissance stage, attempting to restore the lost or forgotten ideas of our predecessors. The intellectual culture of the seventeenth and eighteenth centuries, a period rich in libertarian ideas, is to our [Modern] Renaissance what the culture of ancient Greece was to the Italian Renaissance: the source of our inspiration and the foundation of our future progress.
(This picture is greatly oversimplified, of course, as are all historical generalizations. But I offer it merely as a suggestion, not as an argument -- and most definitely not as a prediction.) I suggest that libertarians can best move forward by first looking backward and rediscovering the intellectual gems that were bequeathed to us by our libertarian forefathers, who were far more advanced than we are in several major areas. One such area is the theory of resistance and revolution.
Before proceeding, I should dispose of a myth that is believed by many Americans, including some libertarians. This is the belief that the rights of resistance and revolution were meant to apply only to monarchies, oligarchies, and other non-democratic forms of government. This is manifestly false. These rights were applicable to any form of government that had degenerated into despotism or tyranny. As John Locke said in his Second Treatise of Government, it is a mistake to think that only monarchies can become tyrannical; "other forms of government" are equally susceptible to this danger. Quoting Locke: "wherever the power, that is put in any hands for the government of the people and the preservation of their properties, is applied to other ends, and made use of to impoverish, harass, or subdue them to the arbitrary irregular commands of those that have it, there it presently becomes tyranny, whether those that thus use it are one or many." Similarly, [likewise] Jefferson's Declaration of Independence, referring to the inalienable rights of life, liberty and the pursuit of happiness, states: "whenever any form of government [ANY Form of Government!] becomes destructive of these ends, it is the right of the people to alter or to abolish it...."
Our forefathers were keenly aware of the fact that any form of government, including democracy, can easily degenerate into tyranny. They drew a crucial distinction between the principle of government and the form of government. "Principle" refers to the basic purpose [or function] of government, or what it is supposed to accomplish. "Form" refers to the structure of government, such as monarchy or democracy.
The original principle of the American government, according to its founders, was the protection of natural rights, especially those to life, liberty, and property. The intended form of the American government was republican, a type of limited democracy wherein majority rule is restricted by the constitutionally-protected rights of the minority. America's founders repeatedly argued that form should always be subordinated to principle -- in other words, that democracy is justified only so long as it preserves freedom. Many expressed their concern that later generations of Americans would forget this all-important distinction and mistake the form of government for its principle. They would defend democracy as an end in itself, even if it systematically violated the rights of its citizens. And thus would begin the slippery slide of America into democratic despotism, a theme that was widely discussed throughout the eighteenth century.
Some Americans, such as John Adams and Alexander Hamilton, were highly skeptical of (American) democracy and its ability to maintain individual rights, while others, such as Thomas Jefferson and Thomas Paine, were more optimistic. But even Jefferson shared the common belief of his day that the American Republic would eventually degenerate and succumb to tyranny. Indeed, Jefferson predicted that Americans would probably lose their liberty within two to three hundred years, which, of course, is the period of time in which we are now living.
This descent into tyranny was regarded as virtually inevitable, as Americans lost sight of the principles on which their country was founded, and as they became inattentive and indifferent to the accumulation and abuse of governmental power. And when tyranny becomes firmly established, the only way to defeat it is through another revolution.
[Now] This sounds like a prescription for violence until we recall that, during the eighteenth century, the term "revolution" did not necessarily carry this implication. A revolution could be, and ideally should be, nonviolent. Indeed, it was not uncommon to distinguish the American Revolution [per se] from the War for Independence. In a famous letter to Jefferson, an elderly John Adams asked, "What do we mean by the Revolution? The War?" He answered, "That was no part of the Revolution. It was only an effect and consequence of it." According to Adams, the real Revolution took place in the minds of the American people, and "this was effected, between 1763 and 1775, before a drop of blood was drawn at Lexington."
This analysis, with which Jefferson heartily agreed, was more than the pontificating of two aging icons; it was grounded in the ideology of radical republicanism. The word "revolution," which political philosophers borrowed from astronomy, denoted the circular movement of something that returns to its original starting point. In politics, this meant a return to the fundamental principles of individual rights, social contract, and government by consent.
In the opinion of radical republicans, when a government becomes tyrannical it is necessary, as the Declaration puts it, "to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its power in such form, as to them shall seem most likely to effect their safety and happiness." [incidentally] Notice the distinction that is made here between principle and form.
Although a revolution can be accomplished by peaceful means, violence is sometimes necessary. It is useful to remind ourselves that the Declaration of Independence was expressly written to defend the right of violent revolution against an established and highly respected government. Thomas Jefferson, who had studied the history and ideology of radical republicanism in great detail, produced a masterful document that brilliantly summarizes the essentials of that revolutionary tradition. Indeed, [his fellow Virginian] George Mason charged that Jefferson had copied much of it from John Locke, but Jefferson denied this. I don't think these accounts are necessarily incompatible. Mason was right in the sense that some passages in the Declaration can be found, nearly verbatim, in Locke's Second Treatise. But Jefferson was also right in claiming that he wrote the Declaration without referring to any book. Jefferson was probably so familiar with the Second Treatise that he unconsciously duplicated some of its wording. This, far more than if Jefferson had borrowed deliberately, testifies to the tremendous influence of John Locke on the American mind.
The Declaration is so rich in content that I cannot possibly do it justice here. To fully appreciate the Declaration -- to understand its many references, presuppositions, and unstated implications -- requires a good deal of reading and study. The second paragraph alone (the one that begins, "We hold these truths to be self-evident...") is like a crash course in the theory of radical republicanism. Every sentence, and virtually every phrase within every sentence, has a distinct significance and ancestry. In my judgment, it is the most condensed and carefully written paragraph in the history of political thought -- and, I should add, the most influential.
The Declaration, according to Jefferson, was intended to be an expression of the American mind. Therefore, it is an excellent window to our libertarian past, one that enables us to see the political world as our founding fathers saw it. It articulates an ideology that is at once revolutionary and restrained. Violent revolution is justified, but only under special conditions that are carefully laid out.
To understand this right of revolution, we must first distinguish it from the right of resistance. The right of resistance pertains to particular unjust laws, or to the illegal enforcement of laws, whereas the right of revolution pertains to the complete overthrow of an established government. These rights, though closely related, are conceptually distinct, and I shall first consider the right of resistance before moving on to the right of revolution.
There are three traditional positions on our duty to obey the laws of a legitimate government (or positive laws, as they are often called). The first, which is called passive obedience, is affiliated with various theories of absolute sovereignty, such as that defended by Thomas Hobbes [in the seventeenth century]. According to the doctrine of passive obedience, every citizen has a duty to obey every governmental law, whatever his personal opinion of that law may be. To maintain otherwise, to uphold the right of each person to decide which laws he will or will not obey, will, according to the absolutist, destroy the foundation of law itself and plunge society into chaos and conflict -- that anarchistic state of nature which Hobbes described as a "war of every man against every man" where life is "nasty, brutish, and short." [or as an Australian Philosopher friend of mine likes to say "where life is nasty, British, and short."]
The second position, known as passive resistance or passive disobedience, was popular among seventeenth century Quakers and other religious Dissenters, who correctly attributed this tactic to the early Christian community in Rome. Essentially, this doctrine asserts the right to disobey an unjust law, especially in matters of religious conscience, but it further affirms one's duty to submit to the legally prescribed punishment. In other words, one may resist an unjust law by refusing to obey it, but one may not resist the enforcement of that law.
Defenders of this view had a viable response to their absolutist critics, who contended that the right of resistance undermines the authority of all laws, whether just or unjust. Passive resistance permits the individual to decide which laws are unjust without endangering the entire legal order. The individual resister, by submitting to legal punishment, is able to register his protest -- or to give his testimony, as the Quakers liked to say -- without undercutting the public authority of law itself. In its modern form, this approach is often called "nonviolent resistance" or "civil disobedience."
Our third and final approach is the theory of active resistance, or violent resistance. This theory asserts the right of every individual to disobey unjust laws and to forcibly resist the implementation of such laws. In the American revolutionary tradition, and throughout radical republicanism generally, this is what is denoted by the term, "the right of resistance." Likewise, when I speak of the "right of resistance," I mean the right of active or violent resistance.
To equate the right of resistance with violent means can be justified on philosophic grounds. To possess a right, by definition, is to have an enforceable moral claim against other people. To have a  right against a [our] government means that certain moral claims, if ignored or violated by that government, can legitimately be defended with physical force. If we are never justified in using violence against a government, however unjust its actions may be, then we literally have no rights at all. A right that can never be enforced is a contradiction in terms.
(Essentially the same point was made by Algernon Sidney, the seventeenth century writer whose influence on American thinking was surpassed only by John Locke. According to Sidney it is "folly" to say that he who has a right or obligation to disobey an unjust law ought nevertheless to submit to punishment. If a law is just, then we ought to be punished for disobeying it. But, to quote Sidney, "no one can be obliged to suffer for that which he ought not to do, because he who pretends to command has not so far an authority." In other words, a government exceeds its proper authority whenever it enacts an unjust law, so it has no legitimate right to punish those who disobey. I am no more obligated to obey an unjust law of government than I am to obey a decree of the Mafia; indeed, when a government repeatedly issues unjust laws, it reduces itself to the same moral level and deserves the same lack of respect.)
Against the right of resistance, it has been argued for centuries that such a right will undercut the authority of all governments and legal orders. If I and everyone else may decide when a law is unjust, and so resist its enforcement, doesn't this mean that everyone will simply obey whatever laws they like and disobey those [whatever laws] they don't like? And if this is so, what is the point of having laws in the first place?
[Now] John Locke and others discussed this problem in considerable detail, and I shall [simply] summarize their major points.
(1[st]) Contrary to the charge that the right of resistance will foment the overthrow of government, defenders of this right claimed that it will often have precisely the opposite effect. There is a natural "lust for power" [a very common expression in the eighteenth century] in all humans; this is the desire to control others so they behave as we think they should. Those in government are especially susceptible to the corruption of power, because government is simply institutionalized coercion [nothing less nothing more]. Ultimately, the only way to check the abuse of power is through active resistance. Only if rulers understand that they can go only so far, and no farther, will they curb their insatiable desire for more power.
The right of resistance therefore functions as a kind of safety value, alerting rulers that they are overstepping their legitimate boundaries. If this right is denied, if the abuse of power is allowed to grow unchecked until it becomes tyrannical, then no remedy will be available except a complete revolution. The right of resistance provides citizens with another option. By resisting unjust laws before the onset of total tyranny, we may be able to reverse the growth of power, thereby avoiding tyranny -- and the need for revolution.
John Locke had some [very] interesting things to say about this. The "state of mankind is not so miserable that they are not capable of using [a] remedy, till it be too late to look for any." It does no good to tell people that "they may expect relief when it is too late, and the evil is past cure." Locke continued:
"This is in effect no more than to bid them first be slaves, and then to take care of their liberty; and when their chains are on tell them they may act like free men. This, if barely so, is rather mockery than relief; and men can never be secure from tyranny if there be no means to escape it till they are perfectly under it. And therefore it is that they have not only a right to get out of it, but to prevent it." (107)
(2[nd]) The classic objection to the right of resistance -- that it will undercut the authority of all law -- was answered by pointing out that law can retain its authority only so long as it is generally regarded as just. When a government enacts and enforces unjust laws, it rebels against the principles of natural right and undercuts its own authority. Locke, Jefferson and others never tired of pointing out that tyrannical rulers, not those who resist them, are the true rebels. (As Locke put it: "rebellion being an opposition, not to persons, but authority, which is founded only in the constitutions and laws of the government, those whoever they be who by force break through, and by force justify their violation of them, are truly and properly rebels." (110))
The ruler must obey that same laws that are constitutionally prescribed for every one else. Thus, whenever a ruler exceeds his constitutional limits, it is that ruler who rebels against the legal order and undermines legitimate authority. The right of resistance, therefore, is essential for preserving the authority of law, because it demands that everyone must abide by it, including those in power.
(3[rd]) Who decides when a ruler acts unjustly, unconstitutionally, or illegally? Ultimately, insisted Locke, every person must decide for himself, through the use of his reason. This is where many Americans, including some [I'm sorry to say] libertarians, have departed from their revolutionary tradition. They simply cannot grasp the notion that moral and political principles are capable of proof or demonstration.
The view that law creates right, that there is no distinction between the just and the legal, is known in philosophy as "legal positivism." Though this theory is often traced to the nineteenth century, and especially to John Austin and other utilitarian disciples of Jeremy Bentham, its true originator was the seventeenth-century philosopher Thomas Hobbes. According to Hobbes, positive law, [that is enacted law] and positive law alone, creates justice and injustice, so to talk about an "unjust law" is a contradiction in terms. Hobbes, a champion of absolute sovereignty, resolutely opposed the right of resistance, because to resist a law, by definition, is always unjust.
We may be thankful that few libertarians, if any, subscribe to this form of positivism. Indeed, it is difficult to conceive how libertarian conclusions could ever be derived from this foundation. But some [more] conservative libertarians, while rejecting legal positivism, do seem to embrace a kind of procedural positivism [if I may use that expression]. While denying that law determines justice, procedural positivists often equate the two in practice. We may personally judge a law to be unjust, and this judgment may even be correct, but, according to the procedural positivist, we should always defer to the decisions of a court of law, and ultimately to the Supreme Court.
It is here that the procedural positivist will wax eloquent on the separation of powers -- that celebrated system of "checks and balances" that supposedly keeps the American government from becoming tyrannical. So long as we have an independent and impartial judiciary, one that will check the abuses of the legislative and executive branches, then the oppressed citizen should appeal to it for the redress of grievances, rather than [taking matters into his own hands] (depend on his own judgment).
The theory of checks and balances has a long and distinguished history dating back to ancient Greece and Rome. It occupied a place of pride in the writings of Locke, Montesquieu, Blackstone and America's founding fathers. I don't wish to denigrate the significance of this theory, which was a noble effort to limit the abuse of power through institutional barriers, but I do wish to dispel some of the myths and misconceptions that surround it.
A key problem for republican theory was how to structure political institutions so that governments would remain limited in their power and not degenerate into absolutism [or tyranny]. Every schoolchild learns about the wonderful "checks and balances" of the federal government, whereby each of the three branches, executive, legislative, and judicial checks the other two. What these schoolchildren are not told, however, is that even James Madison "the [so-called] father of the Constitution") was highly skeptical that this system would accomplish its intended purpose. Indeed, Madison later criticized it as a mere "parchment barrier" [his words] to the abuse of power, because each branch, following the natural tendency of power to expand, would encroach not inward into other political spheres, but outward into the sphere of society. The power of each branch would expand, [as Madison predicted] not by taking power from the other branches, but by taking freedom from the people.
The real separation of powers, argued Madison in The Federalist Papers, was that between the state and federal governments. Individual states, jealous of their own power, would resist encroachment by the federal government. This is why so many Jeffersonians were in favor of "states' rights," a position that has frequently been perverted by modern conservatives. The Jeffersonians knew full well what conservatives seem not to know, namely, that a state government can become as tyrannical as any federal government (though they thought this was less likely to occur). The point was not to defend the power of states per se, but rather to introduce competition between the state and federal governments, so that neither could become tyrannical. The restraint of power, not the distribution of power, was the ultimate concern of early states' righters.
Madison and Jefferson eventually adopted an extreme position on this, when, in their Virginia and Kentucky Resolutions, they defended the authority of states to nullify federal law. John Calhoun picked up this ball some years later and ran with it, when he affirmed the right of southern states to nullify the federal tariff. This precipitated the "nullification crisis" of the 1830s, during which President Jackson threatened to lead an army into South Carolina and personally lynch vice-president Calhoun. (It might be argued that here, at last, was a true system of checks and balances.)
Though Jefferson and Madison hoped that the separation of powers would restrain the growth of government, neither had the kind of blind faith in this system that is so common today. Both were empiricists, i.e., both had a "look and see" attitude about the political world. Clearly, the system has not worked very well; the American government, by their standards, has long ago degenerated into despotism [tyranny], exercising precisely the kind of unjust powers that Jefferson complained about in the Declaration of Independence. Significantly, those theorists who upheld the doctrine of separate powers also defended the right of resistance [almost to a man]. They insisted that the ultimate check on abusive power must lie with the citizens themselves, who will stand up and protect their liberty by [physical] force, if need be.
John Locke and others in his tradition believed that violent resistance is inappropriate so long as citizens have recourse to an impartial judiciary, where their grievances will be fairly adjudicated. But our forefathers, who were all too familiar with the corrupt [penal] practices of many judges, did not discard the right of resistance. Generally speaking, seeking redress in a court of law applied to those cases where government agents (or "lesser magistrates," as Locke called them) exceeded their constitutional powers when attempting to enforce the law. Locke gives the example of a lesser magistrate who serves a writ, or warrant, to a man in the street. This may be perfectly justifiable, [according to Locke] but the same is not true if that magistrate attempts to enforce the writ by invading a man's home. In this case, the agent may be forcibly resisted, because, so far as the homeowner can tell, his life is in imminent danger. Therefore, I may forcibly resist the invasion of a government agent, just as I may resist the actions of a housebreaking thief.
In this and [in] other cases where my life is threatened, resistance is fully justified, because there is no time for a legal appeal. As Locke repeatedly emphasizes, a court of law cannot help a dead man. Against this, the procedural positivist might argue that I should passively submit to the government agent, even if he breaks into my home, because I can later prosecute him in a court of law [perhaps]. [but] Locke would have been quite amazed by this argument, especially if it came from a fellow libertarian. If the agent is breaking the law, he is literally an outlaw, and we may treat him as we would any other outlaw. Moreover, we do not have mystical insight into the minds and motives of other people. According to Locke, if a man is willing to break into my home and seize my property, we may reasonably assume that he is also willing to kill me, if he deems it [that] necessary. Any such invasion, therefore, can reasonably be interpreted as a threat against my life, whatever the real intentions of the invader may be. If it should turn out that my interpretation is mistaken, then it is the invader who should bear the consequence of this mistake, for it is he who took the invasive action.
The right of active resistance, as traditionally conceived, is simply the right to enforce our legitimate moral claims as human beings against the violent oppression and tyranny of government. This right was based on the premise that no person can be excused from committing gross acts of injustice against innocent persons, whatever position of power or privilege they may enjoy, and however much a majority may approve of those unjust acts.
Revolution, unlike resistance, involves the complete overthrow of a government and its replacement by a new government. This theme dominated much of political philosophy during the seventeenth and eighteenth centuries, and its influence was profound. Those centuries witnessed the English Civil Wars of the 1640s, which overthrew the Stuart monarchy and led to the execution of [King] Charles I; the Glorious Revolution of 1688, which again overthrew the Stuarts, but this time for good; the American Revolution of 1776, which ended in liberty; and the French Revolution of 1789, which [unfortunately] ended in the despotism of Napoleon.
All of these revolutions were based to some degree on the theory of natural rights, social contract, and government by consent. Together, these theories constituted the libertarian ideology of their day. The theory of natural rights, which was the foundation of this ideology, was widely denounced by critics as the highway to revolution and anarchy. When the utilitarian philosopher Jeremy Bentham denounced the doctrine of natural rights as "nonsense upon stilts," he did so because he believed that no government can subsist when confronted with a doctrine that sanctions the right of [resistance and] revolution. Make no mistake about it: the doctrine of natural rights was the revolutionary doctrine of the seventeenth and eighteenth centuries [that was why it was so widely despised].
This does not mean that every natural-rights philosopher necessarily sanctioned the right of revolution. The pivotal issue [here] was a theory known as social contract. According to this theory, individuals in a state of nature [that is a society without government] would voluntarily join together in civil society and delegate to government certain powers that are necessary to protect their rights. When a government abuses that trust, when it systematically violates rights, it becomes tyrannical and may be coercively replaced through revolution.
As John Locke explained, no person would voluntarily submit to a government in order to become worse off than he would be without government. This insight provides a kind of test whereby we may judge the legitimacy of government activities. We submit to government in order to protect our natural rights of life, liberty, and property from other people who may wish to violate those rights. When these rights are systematically violated by a government whose only justification is the protection of rights, then that government delegitimates itself and may be overthrown. Or, as Locke said about monarchy, a tyrannical king "unkings" himself and thereby reverts to the status of a common outlaw or thug.
Social contract theory, therefore, specifies criteria by which we can judge when a revolution is justified. Unless it can be shown that reasonable people would consent to particular laws as a means of protecting their life, liberty, and property, then those laws are unjust, and any government that enforces them is theoretically ripe for revolution. This is what so disturbed the opponents of contract theory. Virtually no government, as they astutely pointed out, can pass this test -- so, in the words of one critic, social contract theory is "the universal demolisher of all governments, but not the builder of any."
Foes of [social] contract theory included the reactionary defenders of [the divine right of kings, of] absolute monarchy, but they also included conservative Whigs, such as David Hume, Adam Smith, and Edmund Burke, who were at least sympathetic .to libertarian principles It is at once interesting and amusing to look at what some of these supposed conservatives had to say about revolution. According to David Hume, "in the case of enormous tyranny and oppression, 'tis lawful to take arms even against supreme power.... But though this general principle be authorized by common sense, and the practice of all ages, 'tis certainly impossible for the laws, or even for philosophy, to establish any particular rule, by which we may know when resistance is lawful; and decide all controversies, which may arise on that subject." (Treatise on Human Nature, p. 563)
In other words, though Hume conceded the need for revolution in extreme cases, he did not believe that the criteria for a legitimate revolution can be specified with any degree of precision [and this of course set him apart from the social contract theory]. As Hume saw the matter, our allegiance to a government is determined by its utility, or usefulness, for most members of society; so no revolution is justified, even against a corrupt government, unless that government has degenerated into a hopeless and irremediable tyranny.
Adam Smith [who was a close friend of David Hume, and of course the author of "The Wealth of Nations"] held [essentially] the same view. Government is based on utility, according Smith, not on consent, so the harm caused by a government must significantly outweigh its usefulness before revolution is justified. Since this was the position generally held by conservative Whigs, it is instructive to examine Smith's ideas in more detail.
According to Smith, "No government is quite perfect, but it is better to submit to some inconveniences than make attempts against it." (Lectures on Jurisprudence, 435) Speaking of the English government, Smith says that many "foolish laws" have been made, many "improper taxes" have been imposed, and many "imprudent wars" have been entered into -- but these are not sufficient to justify revolution.
Indeed, "many such things may be done without entitling the people to rise [up] in arms." (326) When, then, is a revolution justified? Smith's answer, like that of Hume, is based on utility: "wherever the confusion which must arise on an overthrow of the established government is less than the mischief of allowing it to continue, then resistance is [are] proper and allowable." (320-21) [You see how clear and interesting these people were, even if we don't necessarily agree with all they had to say.]
This criterion is rather vague, and intentionally so, but Smith does get more specific. When the abuse of power becomes "gross, flagrant, and palpable," then armed resistance is allowable. As an example of such gross, flagrant, and palpable abuse, Smith cites a tax that absorbs one-third [1/3rd] of the people's wealth. (326) Any government that would impose such a burdensome tax has obviously crossed the line into tyranny and may be forcibly opposed [overthrown].
We must remember that this one-third test, which is cited by a number of eighteenth-century writers, represented the conservative thinking about revolution. There was a good reason for this. As Herbert Spencer pointed out in the following century, the feudal serf was required to turn over one-third of his produce to his overlord. This means that any citizen who is required to pay a tax rate greater than one-third is actually worse off than the lowly [medieval] serf. This is why many conservative thinkers, who condemned the wild-eyed revolutionaries of the social contract school, upheld the one-third test as the bright line of tyranny.
If a tax rate of one-third justified revolution for conservative thinkers in the eighteenth century, we can begin to appreciate how radical the radicals of that age truly were. [And I want briefly now to return to that position] Let us now return to that tradition.
Who has the right to judge when revolution is justified? This was most difficult of all questions for proponents of revolution, for it seems to open a Pandora's Box of problems. Some theorists argued that a legitimate revolution against monarchy must win the approval of lesser officials, such as Parliament or the nobility. [but] The position of John Locke was far more radical than this. To the question, Who shall judge if the government has violated its trust and should be overthrown? Locke replied, "The people shall be judge."
This response is more complex than it may first appear; it is based on Locke's sociological view that most people simply prefer to be left alone and to live in peace. This, after all, is the reason they agree to submit to government in the first place. The vast majority of people have no desire to engage in the tumult and destruction of revolution. Therefore, as Locke puts it, "till the mischief be grown general, and the ill-designs of the rulers become visible, or their attempts sensible to the greater part, the people who are more disposed to suffer than to right themselves by resistance are not apt to stir." (112) We find the same position expressed with similar words in Jefferson's Declaration: "all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."
This seemingly innocuous observation has important implications. It suggests that large numbers of people would never engage in revolutionary activity unless their government had [already] pushed them beyond the limits of endurance. According to some British observers, the American Revolution had been instigated by a small band of malcontents -- or "terrorists," to use the modern term -- who used propaganda to dupe many of the common people into joining their cause. Americans responded with the claim that their revolution enjoyed mass support; in the words of General Charles Lee [who was third under command of General George Washington], it was a "people's war." Locke's argument supports this claim on sociological grounds. He thinks it quite absurd to suppose that most people would uproot their lives, endanger their families, and take up arms against a powerful adversary, unless they felt compelled [absolutely compelled] to do so. The mere fact of mass revolution[ary sentiment], therefore, constitutes presumptive evidence against a government.
This also relates to an important proviso that was repeatedly stressed by American revolutionaries. A revolution, however justified on moral grounds, should never be undertaken without a reasonable expectation of success. This is why mass support is necessary. Without it, a revolution is bound to fail, and a failed revolution will invariably make things even worse than they were originally. It is therefore highly irresponsible to foment a revolution without adequate preparations -- most notably, gathering the support and cooperation of a sufficiently large number of people, without whom no revolution can hope to succeed.
Given this [mass] base of support, when may resistance properly turn to revolution? When may we move from resistance against particular laws and seek the complete overthrow of a government? This was a crucial problem for American radicals, who had been involved in resistance activities for thirteen years prior to the Declaration of Independence. Many Americans, even some who approved of resistance, questioned whether the situation was bad enough to justify outright revolution. Therefore, this issue was of great concern to Jefferson, who made it a major theme of the Declaration. This concern is especially evident in the second paragraph.
After asserting that governments are instituted to secure the "unalienable rights" of life, liberty, and the pursuit of happiness, Jefferson goes on to say: "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, laying its foundation on such principles and organizing its power in such form, as to them shall seem most likely to effect [secure] their safety and happiness."
Note that Jefferson explicitly ties the right of revolution to the violation of inalienable rights. This is highly significant. Inalienable rights were regarded as fundamental corollaries of man's essential nature, especially his reason and volition, which could never be surrendered or transferred to another person, even with the agent's [man's] consent. A man can no more transfer his inalienable rights to another person than he can transfer his moral agency, his ability to reason, and so forth. This means that inalienable rights, by definition, could never have been transferred to government in a social contract, so no government can properly claim jurisdiction over such rights. Consequently, any government that tampers with or violates inalienable rights is necessarily tyrannical and vulnerable to revolution.
This argument from inalienable rights was important because of an ambiguity in traditional social contract theory. The social contract was a theoretical construct, not a historical reality, so disagreements inevitably raged over which rights had been delegated to government and which rights had not. After all, no legitimate complaint can be made about the violation of a right, if a government has gained proper jurisdiction over that right in the social contract. Government, for instance, cannot function without money, so the transfer of a minimal amount of property to government, collected in the form of taxes, was commonly seen as the prime example of a right that has been alienated through the social contract.
According to the radical ideology, legitimate disagreements may occur between subjects and rulers when alienable rights are involved, but no such disputes are justified over the question of inalienable rights. Government cannot claim any jurisdiction over such rights, because inalienable rights, by their very nature, could never have been transferred to government in the first place. Therefore, there can be no excuse whatever for the violation of inalienable rights. This is the crucial bright-line test that enables us to distinguish the incidental or well-intentioned violation of rights, which even just governments may occasionally commit, from the deliberate and inexcusable violations of a tyrannical government.
We thus see why Jefferson focused on inalienable rights in his effort to fasten the charge of tyranny on the British government. The violation of inalienable rights was a defining characteristic of a tyrannical government, and only against such a government is revolution justified.
The violation of inalienable rights, if it justifies revolution, also justifies resistance, so we are still left with the problem of deciding when to turn from limited resistance to unlimited revolution. Jefferson deals with this problem as follows: After stating that governments "should not be changed for light and transient causes," Jefferson continues: "But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security."
This passage, which was taken nearly verbatim from John Locke, constituted a crucial step in justifying revolution. Radical Republicans acknowledged that no government is perfect and that even the best of governments may sometimes engage in inappropriate or unjust activities. Although resistance may be appropriate in such cases, especially if inalienable rights are involved, revolution is not justified when dealing with incidental and unconnected violations. Government must commit unjust acts as a matter of policy in an effort to deprive citizens of their freedom, or, as Jefferson says, "to reduce them under absolute despotism."
Here, of course, we encounter of problem of mind-reading. We cannot enter into the thoughts of rulers, so how can we know if they intend to establish despotism? Jefferson summarizes the typical answer to this question when he says, "But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism...." [etc] In other words, we infer the intentions of rulers from their actions. If we have empirical evidence of a continuous and systematic violation of inalienable rights, then we may reasonable infer a deliberate design by government to violate those rights. At a certain point, it simply becomes unreasonable to excuse such violations as the honest mistakes or misunderstandings of well-intentioned rulers.
To summarize [then]: Revolution is justified when a government deliberately engages in the systematic violation of inalienable rights. As mentioned previously, however, even these circumstances are not sufficient, unless there is a reasonable chance that the revolution will succeed.
Having sketched the views of our forefathers on resistance and revolution, I hope I have convinced my fellow libertarians to take a closer look at the Golden Age of libertarian theory. Not only in this area but in other areas as well, there is a wealth of ideas and information that can prove of tremendous benefit to every libertarian (in particular and to our movement generally.)

[And I should like to close with a brief passage from the great American libertarian Alexander Spooner, Spooner as you may know, got his training in the radical abolitionist movement in Antebellum America. And this summarizes very well the entire tradition I have been discussing This is from his pamphlet "A Defense For Fugitive Slaves" published in eighteen fifty.  "The right and the physical power of the people to resist injustice, are really the only securities that any people ever can have for their liberties. Practically no government knows any limit to its power but the endurance of the people. And our government is no exception to the rule. But that the people are stronger than the government, our representatives would do any thing but lay down their power at the end of two years. And so of the president and senate. Nothing but the strength of the people, and a knowledge that they will forcibly resist any very gross transgression of the authority granted by them to their representatives, deters these representatives from enriching themselves, and perpetuating their power, by plundering and enslaving the people." Thank you for your attention.]

 Alexander Spooner's "A Defense For Fugitive Slaves" 1850 - http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=2225&Itemid=27


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