LEGITIMCACY ALONE:

October 10, 2003

The US and the UN (Criton M Zoakos, Oct 21, 2003, Asia Times)

The current tension between the United States and the United Nations arises from the fact that the UN as an organization is based on a legal principle that is continental European in origin and not ecumenical, as is usually and mistakenly assumed. This is the principle of the 1648 Peace of Westphalia which asserts that sovereignty is superior to legitimacy. It is a principle that the United States not only never accepted, but actively opposed throughout the course of its formation from 1620 to date. […]

Until the Thirty Years War (1618-1648), the Western world believed that the legitimacy of government derived from one source, namely the concept of “universal Christian monarchy” embodied in the person of the “Holy Roman Emperor” in the West, and the Roman Emperor in the East (Constantinople). The style of the “Holy Roman Emperor” in the West was instituted by Charlemagne in the year 800 AD, presumably in protest over the fact that the office of the actual Roman Emperor in Constantinople was occupied by a woman.

By reason of direct succession, the Roman Emperor in the East had been in continuous possession of all the legal titles and regalia of the Roman emperor ever since Constantine the Great designated Christianity as the official “cultus” of the Roman Empire in 313 AD, and transferred its capital from Rome to Constantinople in 330 AD. Yet despite the fact that from the year 800 AD onward the legitimizing principle of “universal Christian monarchy” was embodied in two different emperors, this split was a matter of contest between two claimants to one and the same legitimizing principle. The legitimizing principle itself had remained one.

This ambiguity ended with the collapse of the Roman Empire in the East and the capture of Constantinople by Muslim armies in 1453, leaving only one claimant to the legitimizing principle of “universal Christian monarchy”. This claimant was whichever potentate the Pope chose as “Holy Roman Emperor”. By the time of Martin Luther’s Reformation in 1517, this title had securely settled on the head of the House of Habsburg, the largest landlords on the Continent. (The Roman Catholic Church was the second largest landlord, with 25 percent of European landownership, mostly prime farm and grazing lands).

The Thirty Years War was a war of Protestant princes against the legitimizing principle of the “universal Christian empire” and its representative, the Habsburg Holy Roman Emperor. These Protestant princes were joined by numerous Catholic princes (most notably the King of France), who saw profit in challenging the legitimizing principle of the time. Some of the profit was political – freedom from Papal political interference in their administration. Some was economic – freedom to expropriate and secularize vast church lands.

Since both Papacy and Emperor were too weak at the beginning of the Reformation, a temporary compromise was struck in the 1555 Treaty of Augsburg which for the first time abandoned the legitimizing principle of “universal Christian monarchy” and settled on “cujus regio, ejus religio”, roughly translated as “whoever reigns imposes his religion in his realm”. In plain English: “Might makes right.” The compromise failed when the Catholic Church gathered forces and launched its Counter-Reformation for the purpose of restoring the original
legitimizing principle of “universal Christian monarchy”.

This led to the Thirty Years War, which devastated all sides. Drained of resources by the war, near collapse but still roughly equally balanced and without hope of decisive victory for either side, the exhausted adversaries settled on the 1648 Peace of Westphalia. In it, the parties agreed that if they were to survive, the sovereignty of each was far more important than any legitimizing principle on which that sovereignty rested. “Cujus regio, ejus religio” the old principle of 1555, was finally enforced.

Seen against this background, the history of the formation of the United States – from the Mayflower Compact of 1620, the revolution of 1776, the ratification of the US Constitution of 1787, George Washington’s admonition against “foreign entanglements”, American neutrality during the Napoleonic Wars, the Monroe Doctrine of 1821, the expansion to the Pacific and the Gulf of Mexico Coasts – is best viewed as a contrast to the Westphalian system, sometimes as opposition, sometimes as mere counterpoint. The original English and Dutch settlers of North America were men and women who rejected the Westphalian agreement that gave the local prince – the State – sole right to establish and dis-establish religion. When these settlers eventually wrote their constitution, its First Amendment and anti-establishment clause was a clear, explicit rebuff of cujus regio, ejus religio: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

In fact, and contrary to the Westphalian system, the formation of the United States affirmed a new principle from which government derives legitimacy: the inalienable rights of the individual human being, including the inalienable right to be governed by their consent. The assertion of this new legitimizing principle is evident from the Declaration of Independence through the entire process of ratifying the Constitution, in the course of the Federalist debates and in the evolution of the Supreme Court under Justice John Marshall.

While the Westphalian system is strictly and absolutely agnostic on the matter of legitimizing principle – in order to give primacy to the principle of sovereignty of the State – the founding of the American republic asserts the supremacy of its legitimizing principle (inalienable rights of the people) over the sovereignty of the State. In the Westphalian system, sovereignty trumps legitimacy. In the American system, legitimacy trumps sovereignty, with legitimacy embodied in the US Constitution. The only sovereign recognized in the American system is the Constitution, ie, the legitimizing principle itself.

So is traditional sovereignty literally un-American.

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