Ronald N. Neff's two essays on the legitimacy of the Republic first appeared as the lead articles in TLD 15, December 19, 1996; and TLD 16, April 4, 1997.
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First installment of series.
The seizure of
How the neocons' mock revolt fortifies leviathan
By RONALD N. NEFF
© 1996, 1999 WTM Enterprises
All rights reserved.
It is always a good thing when political discussion turns to questions about natural law. Such questions transcend what is merely commanded, permitted, or prohibited. They ask whether supposed authority is genuine or merely asserted; they ask whether its actions are mere reflections of positive law, command, and edict, or of natural law, truth, and objective right as well. They deal, to modify a formulation of the 19th-century anarchists, with whether there is a difference between Bill Sykes and Bill Clinton, and if so, which of the two that difference favors.
Thus, it was an intrinsically welcome event when the November 1996 issue of First Things, a journal of the Institute on Religion and Public Life, published its symposium "The End of Democracy? The Usurpation of Politics." The editor-in- chief is Richard John Neuhaus, a neoconservative writer. He and his editorial staff introduced five essays dealing with the title question, all of which dealt with the implications of recent rulings of the federal judiciary. 
The symposiasts focused primarily on three cases that came before the federal courts in 1996, with frequent adverting to the Supreme Court's 1992 ruling in Planned Parenthood v. Casey, an abortion-rights case in which the court asserted "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."
The three cases involve the right to die by assisted suicide (Compassion in Dying v. Washington and Quill v. Vacco) and homosexual rights (Romer v. Evans). Russell Hittinger gives a clear and competent explanation of what was at issue in the cases and what they have in common. What concerns all the writers, though, is that issues that should be decided in the forums of public debate in the legislatures, for example, or in political campaigns and in editorials are not being decided in such forums. Instead, judges are deciding them, and on the basis of their own ethical or political convictions, not on the basis of law. Once decided, the issues do not admit of further discussion, and in the case of abortion, the range of permissible debate even to where it may take place is being narrowed, the recent Supreme Court decision notwithstanding.
In Romer, the court was explicit: the law it overturned was "born of animosity" toward homosexuals, and so was discriminatory. Hadley Arkes, recognizing what such a ruling implies, asks: "What if a member of an academic department has simply done what I have done given public testimony, or published a moral judgment on gay marriage? Might that not supply prima facie grounds for a grievance later in a case involving the tenure of a young professor who was gay or lesbian? ... Might it finally be best to remove the problem at the root simply by avoiding the hiring of people who bear these religious and moral sentiments, which the Supreme Court has now declared to be prejudicial?"
In constructing its decisions as "unchallengeable constitutional principles," the federal judiciary has, according to the symposiasts, "usurped politics" and placed a major obstacle in the path of reform.
The symposium generated an interesting tempest, with some of the members of the board of the Institute on Religion and Public Life resigning. One of them insisted that legitimacy "should not be a subject of contention"; another merely said, "I don't care to engage in an argument with you." Other members applauded the symposium's cogency and courage.
But let us notice that the title of the symposium was "The End of Democracy," not "The End of Legitimacy." Although the editors and symposiasts were accused of coming close "to advocating not only civil disobedience but armed revolution," I reply that we should be so lucky. But hear the closing words of Hittinger: Should the high court continue to invalidate political activity "merely on the basis of citizens' moral or religious motivation ... the option remaining to right reason is the one traditionally used against despotic rule: civil disobedience."
Civil disobedience? Clearly this is a man who has not faced the implications of his own words. Civil disobedience is for use against a legitimate government that can still be reformed (assuming there is such a thing). If the government blocks political activity because of the actor's putative motivations, we do not have a legitimate government; we have a tyranny, an illegitimate government. And the traditional remedy against tyranny is not civil disobedience or reform; it is revolution.
So, just what are the editors and symposiasts doing?
What is not happening, 1
What the First Things editors and symposium writers are most certainly not doing despite the fears of the critics whose letters were published in the January 1997 issue is threatening the existence or stability of the state.
In the editors' Introduction we do find such words as "despotism," "regime," and even "revolution." But in the same Introduction, where the editors define a regime as "the actual, existing system of government," as opposed to what they fear is the self-deception of democratic self- governance, their concern is that the judiciary has usurped ... authority? power? No. None of the articles is concerned with the expansion of state power as such. Their concern is that the judiciary has usurped politics that the courts, in such cases as those already mentioned, have precluded the deliberating of various political questions in the legislature, in democratic (presumably electoral) processes, and in Neuhaus's treasured "public square." Thus, their symposium is "an urgent call for the repoliticizing of the American regime." That is, they want to repoliticize the actual, existing system of government, apparently under the delusion that merely restoring public debate will actually restore self-government. They seem utterly unaware that modern public debate has already become a mere facade.
In their follow-up to the symposium in the January 1997 issue, "To Reclaim Our Democratic Heritage," the editors say that the current U.S. regime is an aberration. But aberration or not, if a regime as such exists so that we, like other peoples, live "under a government" rather than being the government (the editors' formulation) why suppose that the regime, once "reformed," will vanish merely by being politicized?
The symposiasts' concern for "democracy," rather than for liberty, reveals itself most powerfully in this: none of the writers seem to understand that, for longer than they have been writing, both the legislative and executive branches have also been usurping powers. The court system is just a Johnny-come-lately and, as it has transpired, is better at the game than the other players (having learned, perhaps, a trick or two from watching the others).
According to the First Things editors and symposiasts, the courts have done something new to political dialogue: first, they have impugned legislators' and voters' moral sensibilities and their motives in enacting certain laws; and second, they have used that impugning to overturn those laws. The courts, the writers say, have thereby undermined the possibility of anyone's engaging in public debate. But both the other branches, on occasion and in their own way, have attempted to disenfranchise their opponents and to stifle debate. The legislative branch has dealt harshly with critics of government, particularly during wartime. Rather than permit debate about the wisdom or legality of continuing a war, it has simply enacted laws permitting the authorities to accuse critics of sedition or treason and jail them. The executive branch has taken full advantage of those laws, having been the primary agitator for their passage; and through executive orders and the findings of various regulatory bodies the executive branch legislates just as undemocratically. For example, only three years ago , HUD attempted to silence debate about housing by claiming that protests violated the Fair Housing Act of 1968. Moreover, government funding of scholarship in the humanities and sciences effectively cuts off a fair amount of debate, debate that is nonpolitical but no less crucial: hardly anyone will conduct research that is so politically unfavored that it will not be publicly funded. (One writer in the January First Things, Mary Ann Glendon, alone seems to have understood how deeply government funding has restricted and poisoned public debate.)
In many ways, modern political discourse already bears the same relation to free speech that a Potemkin village bears to Tokyo. The courts are merely using the tools appropriate to their branch; the other branches use those appropriate to theirs. 
It must be understood that the writers are by no means Sons of Liberty ready to take to the barricades. Their enterprise must be understood to be an effort to prevent those conditions from arising that would justify revolution. (They are, of course, several decades too late, but that is another matter.)
The Introduction claims that the symposium is examining this proposition: "The government of the United States of America no longer governs by the consent of the governed."
Here are replies made by the writers:
"The situation is ambiguous and admits no clear answer." (Hittinger)
"One way of avoiding an affirmative answer to this question ..." and "the hour is late" and "the failure of the institutions of American democracy to fulfill their responsibilities has created what is truly a crisis." (Robert George)
Concerning Charles Colson's answer, see the sidebar.
Arkes and Robert Bork seem to recognize that a line has been crossed, and they are appropriately disgusted. They both fail to draw the obvious conclusion from their view, however. But although Bork echoed his wife's exclamation that the justices were behaving like a band of outlaws and asserted that the tendency toward usurpation "is the inevitable result of our written Constitution," he wrote in a letter in the January First Things: "The necessity for reform, even drastic reform, does not call the legitimacy of the entire American 'regime' into question." Note Bork's quotation marks around the word regime.
In that January issue, a 3,500-word justification of the editors' enterprise invokes the name of Lincoln five times, the names of the Revolutionary War heroes not once. That is as it should be: though they refer to the Founders collectively, they are not interested in dissolving the bonds which have connected one people with another or even in saying that they are already dissolved; their concern is to preserve the Union. And, paradoxically, it is by raising the "specter" of illegitimacy that they hope to accomplish that.
Making sure no one ever misunderstands them, the editors explicitly state in that same issue: "Neither the editorial introduction nor the essays in the symposium asserted that the government of the United States is illegitimate."
The editors and symposiasts are willing to discuss such an inflammatory issue as the illegitimacy of the state because they are careful to frame the discussion in terms that predict a noninflammatory outcome. Their operative premise may be best gleaned from a long quotation at the end of Bork's essay from the sainted Dietrich Bonhoeffer, who says, "In cases of doubt obedience is required," "Disobedience can never [italics mine] be anything but a concrete decision in a single particular case," "Even in cases where the guilt of the government is extremely obvious, due consideration, blah, blah, blah," and "The refusal of obedience must ... be a venture undertaken on one's own responsibility."
Read that last quotation again: "a venture undertaken on one's own responsibility." And obedience is not? When we obey, are we not responsible for the venture we undertake? Is obedience somehow not a concrete decision in a single particular case? Is obedience not the proper subject for controversial symposia? When obedience is urged, are hushed, frightened adjectives not necessary?
Here is the heart of any debate about legitimacy: on whom is the burden of proof? The unspoken operative premise of all the writers especially Colson is that for some reason free men have to justify their suspicion of the state. It is on them to pray and fret and discuss and deliberate all of it modified by milksop adverbs, lest readers think them "irresponsible" and then to justify their conclusion almost embarrassedly. Why do the writers not instead call on the state to justify its claims to legitimacy? Why is legitimacy treated as a given?
I can understand that these writers do not wish to challenge "legitimate authority." But the state's mere assertion of authority is not self-legitimating. The editors and symposiasts, however, take it as such. They write as though it is they who have to mince out onto the ice of the discussion. Should it not be the other way around? Is it not the state that should be doing the mincing every time it expands its supposed authority even a trifle?
Instead of the state's claims being received with the reverence owed to some hoary wise man, to be rejected only after years of cautious, responsible, fearful, and glacial consultations, should they not be greeted instantly with gales of laughter and ridicule? or by the demand, "Where do you get off commanding that?"
Especially in a century that has seen untold millions of deaths not counting battle deaths brought about by "legitimate" states, a fair number of them democracies, should not the shoe be on the other foot by now?
Get this: "Once private individuals are allowed rights to use lethal force for vindicating justice in their own case (as in abortion or euthanasia), it is difficult to see how even the most rudimentary foundations of the older political society ... still remain." (Hittinger) It is a foregone conclusion that individuals must not take matters into their own hands. A fortiori, they are not to take the law into their own hands.
But it is only in individual hands that the law can ever be born or fashioned. Individuals may take "matters" or the law into their own hands precisely because the state has no hands to take them into, except the hands we individuals give it. And with those hands, individuals may serve the state, their own corruption, or justice. There are no other possibilities.
Now substitute "self-defense" and "revolution" for "abortion" and "euthanasia" in the Hittinger statement just quoted. It's clear: it is the right of states to use lethal force against individuals that is the "default setting" of his thinking. Individuals from whom the state derives those putative rights, or so we are taught in civics classes must be regarded with suspicion when they claim (let alone exercise) similar rights against the state.
That is exactly backwards. Men are the primary social existents. The state is their creation. Why should anyone obey its dictates or hold its claims to legitimate authority in superstitious awe? That is the question that should be raised at every turn not the sniveling, May we disobey if we are very, very conscientious and not the least bit frivolous about it? The state is Frankenstein's monster, fashioned from corpses; we do not require its permission to destroy it especially if it has turned on us.  It is in this sense that in politics the voice of the people is as the voice of God: the state is answerable to free men; not free men to the state. But the symposium writers and First Things editors, though the latter attempt to explicitly deny it, treat the state's commands as though they are the voice of God.
We can be sure of this: If it were generally thought that it is the state that has to justify its every action rather than that men have to justify opposing its actions there'd be a lot more issues than abortion, euthanasia, and homosexual marriage that the state would be stumbling over. And a lot fewer actions it would dare to take.
The long and short of it is that a group of courtier journalists
and apologists for the state have published a symposium on legitimacy that
can have only one outcome: the capturing of the debate. Are they insincere?
I will not, as the editors say of some of their critics, choose to think
that they do not intend what they say they intend (i.e., to supply an honest
and, of course, careful discussion of the subject). I do say that their
efforts, if successful, can have only one outcome and that it is foreseeable.
Do men intend the foreseeable consequences of their actions?
What is not happening, 2
It is just impossible to suggest that an ideological group may be acting in concert or toward a definitive end without some of one's readers or listeners imagining that he is talking about a cabal that issues orders in a hotel room on the eighth floor of some swank ruling-class haunt, in a kind of conclave.
Let me be as plain as I can be: I do not think anyone took Neuhaus aside and whispered the outline of a plan, the details of which he was to fill out himself. I do not think that over dinner of swan's pancreas and watercress, banker mandarins gave Neuhaus to understand by winks and nods and code words that he was to organize a few writers to carry out the wishes of far-sighted plotters. I do not think he acted under the compulsion of some secret sacrilege or a solemn vow he took one morning while still in seminary.
No such encounter was necessary. The state's tame intellectuals do not need instructions. They are not stupid: they can hear talk radio; they can read the messages that circulate on the Internet; they are aware of the Sagebrush Rebellion, of discussions of jury nullification, and of anger at violations of the Constitution's "takings" clause; they have heard the muttering talk of secession. They know that all is not well among Americans who are pushed around at virtually every turn. They know also that the discontent they hear is often defused by the safety valve of safe talk shows such as Limbaugh's, or safe periodicals such as The New American. Such safety valves promote just the kind of civic-mindedness that confines the discontented to the corral of political opposition before they can roam the range of resistance.
But safety valves are not always successful, and you can think of the Neuhaus symposium as a back-up plan: what is to be done with mavericks who are suspicious of corrals? Marginalization always works well, and one way to accomplish it is to insist on high-toned but essentially vacuous distinctions between responsible (read: "acceptable") forms of criticism and irresponsible (read: "unacceptable") forms. And the precise forms are not determined by decree or plot: they are determined by debates and discussions held out in the open. A flexibility is built in; various forms of opposition are tested, and those forms that emerge as useful and attractive to people who can keep opposition tame and contained are the forms that continue to receive hearings. At first and perhaps for a few years such people will suffer harsh criticism from other courtiers and tame intellectuals. Many forms of criticism and opposition will not survive; others will, and they define permissible opposition.
In the End of Democracy symposium, parameters have been drawn. Hereafter anyone who is not at least as cautious in expressing himself as the symposiasts will be subject to the criticism, "Even the First Things symposium didn't say that." In a letter in the January issue, John Leo, a contributing editor at U.S. News and World Report, complains that the symposium "plays into the hands of people who wish to lump us with cranks and violent extremists." He has misunderstood everything. If the symposium is successful, it will wrench the best arguments from the mouths of "cranks and extremists" and fashion them into state apologetics.
For decades, there have been discussions in this country about the legitimacy of the government. When I was a youngster, roadside billboards reading "Impeach Earl Warren" were perhaps the most dramatic, but by no means the earliest, manifestation of those discussions; the Watergate hearings imprinted another generation.
But during the Bush/Clinton regime [of 1989-2001], with the virtual unleashing of the EPA and the Department of the Interior against Western landholders, and the meaning of the Permanent Regime's gun regulation so transparent, the discussion has heated up and more Americans have begun to take it seriously.
Vigorous questioning of the legitimacy of the state should strike terror in the hearts of tyrants. The effect of the Neuhaus symposium if Polite Totalitarianism has any vitality at all is to seize the terms of that discussion, to sand its rough edges, and to replace its ferocity with domesticity.
Hereafter, discussions of legitimacy must be couched in warm "responsible" terms. Anyone who attempts to discuss the issue in hearty terms, terms more manly than those consistent with the craven, apologetic, "shucks-we-don't-mean-no-harm" voice of the symposiasts, will be recognized at once as an extremist yahoo. Such yahoos, of course, are not to be taken seriously, and the media are permitted to regard them as "dangerous" and as not having quite the same access to civil rights that approved critics might enjoy. More important, those stigmatized as dangerous cranks will lose their hearing among souls who might have been sympathetic to their cause. Such souls as might be somewhat cautious by temperament or financially vulnerable to reprisals will see in the captured dialogue a socially and intellectually approved, nondangerous outlet that appears to articulate their concerns.
The symposiasts are aware of a real danger to the state. No one had to tell Neuhaus of the danger that wider-spread discontent might involve. No one had to give him an assignment to "deal with it." Indeed, no one had to choose him. He is merely one of any number of courtier journalists who might have seen the need for the work of the symposium and done it. All that was needed was for there to be courtier journalists, intelligent, informed, and devoted to the survival of the American political experiment. Think of him as an entrepreneur who saw an intellectual opportunity and exploited it.
That is exactly how Polite Totalitarianism functions: ordinary, unofficial citizens do the work of the state. They are self-directed. That is why Polite Totalitarianism is so successful: it takes individual talents and entrepreneurial gifts and puts them in the service of the state. It is Liberty's evil twin, a spirit of contradiction; the Mephistophelian theme parodies Faustian creativity.
The symposiasts have detected a danger to the state; and their writings are doing the mighty work of heading it off. They are not merely putting a lid on a bubbling caldron; they are the lid.
That was foreseeable.
What might happen
Even tyrannies do not grow linearly. There are periods of growth and advancement; there are periods of plateauing and consolidation; sometimes there are even periods of decline. None of them should be misread as reversals of fortune. 
Parallels abound. Athletes suddenly cannot make jumps that were easy for them yesterday; artists become blocked; great saints undergo periods of spiritual aridity. When such periods pass, growth, advancement, and creativity are restored, indeed renewed, and those who have persevered through the hard times emerge stronger and more vital than before.
I cannot say what will become of this debate or even, definitively, what it "means." I can say what might come of it.
As I indicated at the outset, it is always a good thing when people's attention is directed from the minutiae of politics to the mighty themes of political thought. It is good for free men to be exposed to discussion of the moral and natural law, of justice and legitimacy, and of the source of human authority.
One possible outcome of this discussion, one I regard as very unlikely, is that once the issue of legitimacy is unbottled, it may escape the control of the tame media. It could happen that malcontents, instead of being marginalized by this attempt to move discussions of legitimacy uptown, will be emboldened to make their case more forcefully and will gain a hearing. Something similar, according to some observers, happened to Gorbachev and the Soviet Union.
At the same time, it is just the kind of debate the Dark Suits love to watch, because of what it tells them about the population they rule. It may come to nothing. It may come under such attack that First Things's supporting foundation may lose its appeal and its donor-base may dry up. Or it may be just a fad: like some new Internet access suppliers, the discussion may emerge as an important player, or it may close up shop overnight.
I regard it as more likely, however, that the discussion will have an outcome similar to what seems to be happening in other government undertakings. I observe that there are many on the Right saying that certain economic limits are being reached. The state cannot continue to expand; the drain on resources is reaching a breaking point.
That may or may not be true, but there are many saying it. There are those in positions of political influence who share that view, whether they came by it on their own or by listening to talk radio or by reading marginalized periodicals. Such men are directing their talents toward saving what can be saved and jettisoning as much of the rest as is necessary. They are undertaking a sorting process.
One theme in the sorting process is "devolution." The distribution of welfare is to become the province of the states. The supposed authority to redistribute wealth is not being challenged, merely the mechanics of the redistribution. Similarly, there is talk of eliminating this or that government ministry, but very little talk of abolishing the constituent agencies, and none of revoking the edicts of the abolished ministries. In short, this development is like so many of the changes and chances of government: it modifies the specific shape of tyranny without in the least reducing it.
These "reformers" seem also to be addressing governmental goofiness. They recognize that when a school tells a 5-year-old girl that she cannot distribute her Christmas cards, the doctrine of separation of church and state as it is now construed comes into disrepute. And that when a 6-year-old boy kisses a 6-year-old girl on a playground and is suspended from school for sexual harassment, an important item on the state-feminist agenda loses whatever frail credibility it was building. And that when an EPA regulation that was invoked to preserve the habitat of some rodent results in an outbreak of fire that destroys the homes of nearby property holders and the habitat of the rodents, the prestige of environmental totalitarianism is also scorched. Petty tyrannies of this sort, which abound in the Bush/Clinton regime, not only infuriate victims and observers but make the state appear ridiculous. And governments, like Jack Woltz, cannot afford to be made to look ridiculous.
I believe that something similar to what passed for welfare reform is happening at other levels of government. A "Judicial Reform Act" could restructure the entire federal judiciary at once or redefine the Supreme Court's appellate jurisdiction; neither would require an amendment to the Constitution. Either could "devolve" the jurisdiction we are used to seeing exercised by the federal courts to the state courts under supervision similar to that to be practiced under the new welfare system.
There are already signs that the symposium has had what it must consider a salutary effect: during the recent hearings before the Supreme Court in the matter of assisted suicide, not one justice not even R.B. "Miss Gulch" Ginzberg asked questions friendly to the idea. Any decision against assisted suicide a unanimous one more clearly than any other will signal that the state has heard the warnings of the First Things symposium and begun making appropriate changes.
And the symposium will have achieved at least one of its goals: we will all be able to breathe a little more easily, seeing once again that the system works.
And in the view of some of us, that is one of many things that are wrong with it.
© 1996, 1999 by WTM Enterprises. All rights reserved.
To Mr. Neff's first article,
"This government is illegitimate."
To the sidebar,
"Charles Colson's fear and trembling."
See the letter to the editor, with Mr. Neff's reply.
Return to the "Illegitimacy" table of contents.
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NOTES 1. Russell Hittinger, "A Crisis of Legitimacy"; Robert H. Bork, "Our
Judicial Oligarchy"; Hadley Arkes, "A Culture Corrupted"; Charles W.
Colson, "Kingdoms in Conflict"; and Robert P. George, "The Tyrant State."
[Back] 2. Both Ayn Rand (in her March 1964 Playboy interview) and Leonard
(in a July 1970 Notes from FEE) assert without argument that as
as outright censorship has not been imposed, the time for massive civil
disobedience or revolution has not arrived. In a brilliant essay, "On Civil
Obedience" (Libertarian Forum, July 1970), Murray Rothbard observed that
as long as Rand and Read counseled against genuine rebellion, they were
unlikely ever to see their writings or speech censored: their dissent could
remain uninterrupted precisely because it didn't cause trouble and was
valuable in bamboozling America and the rest of the world into thinking
that ours is a free society. He might have added that they could also keep
a few fire-eaters among their followers from applying their political views
consistently and arriving at less compliant conclusions. [Back] 3. This may be taken literally. Mary Shelley, the author of
was, after all, the daughter of the man who holds the distinction of having
written the first treatise on anarchism in English, William Godwin. [Back] 4. Let us not forget that it was Bush of Arabia's neoconservative drug
czar, William Bennett, who first targeted ownership of so-called assault
rifles for a new round of regulation in an effort to divert attention from
his failed campaign against drugs and redefine it as a campaign against
gun ownership. [Back] 5. This is not to say that tyrannies do not suffer reversals of fortune.
But the signs I have listed are not infallible signs that reversal is in
the works. That judgment requires more proofs than we now have. [Back]
1. Russell Hittinger, "A Crisis of Legitimacy"; Robert H. Bork, "Our Judicial Oligarchy"; Hadley Arkes, "A Culture Corrupted"; Charles W. ("Chuck") Colson, "Kingdoms in Conflict"; and Robert P. George, "The Tyrant State." [Back]
2. Both Ayn Rand (in her March 1964 Playboy interview) and Leonard Read (in a July 1970 Notes from FEE) assert without argument that as long as outright censorship has not been imposed, the time for massive civil disobedience or revolution has not arrived. In a brilliant essay, "On Civil Obedience" (Libertarian Forum, July 1970), Murray Rothbard observed that as long as Rand and Read counseled against genuine rebellion, they were unlikely ever to see their writings or speech censored: their dissent could remain uninterrupted precisely because it didn't cause trouble and was valuable in bamboozling America and the rest of the world into thinking that ours is a free society. He might have added that they could also keep a few fire-eaters among their followers from applying their political views consistently and arriving at less compliant conclusions. [Back]
3. This may be taken literally. Mary Shelley, the author of Frankenstein, was, after all, the daughter of the man who holds the distinction of having written the first treatise on anarchism in English, William Godwin. [Back]
4. Let us not forget that it was Bush of Arabia's neoconservative drug czar, William Bennett, who first targeted ownership of so-called assault rifles for a new round of regulation in an effort to divert attention from his failed campaign against drugs and redefine it as a campaign against gun ownership. [Back]
5. This is not to say that tyrannies do not suffer reversals of fortune. But the signs I have listed are not infallible signs that reversal is in the works. That judgment requires more proofs than we now have. [Back]