Contingent Power in the 21st Century Against the Backdrop of Hegel’s Philosophy of Right – Trump and Twitter as Two Sides of the Same Coin?

2.1 The One That Matters Is Me, I’m the Only One That Matters^[10]

When Trump posted the Tweets which eventually led to his deplatforming, he was the sitting US President and therefore the US head of state. Even though Hegel’s ideal state is not headed by a republican president but a monarch,^[11] one central element of Hegel’s specific concept of a monarch, namely his position within the constitutional system, allows for the fruitful drawing of parallels. This is true for the US President in particular, for the office unites being the head of state with being the head of government and Commander in Chief,^[12] thus vesting in its holder a wealth of powers not incomparable with those of the Hegelian monarch.^[13] Furthermore, the office of the President also conveys a symbolic and integrating aura under the presumption that its holder could rise above the partisan division of society and speak for the people as a whole.^[14] Yet, there are non-negligible differences, the most obvious being the election – which might contribute to the partisan division itself^[15] – and the political accountability of the US President.^[16]

The key prerequisite for informing the assessment of acts of present-day heads of states with the help of the Hegelian concept of a monarch lies in what the Hegelian monarch is not. Put succinctly, he is not a despot.^[17] Instead, he is bound by the constitution. He must adhere to the counsel he receives, his leeway is reduced to how he dots the ’i’ in ‘ich will’ when he makes the final decision.^[18] Therefore, the Hegelian monarch is not supposed to be an idealized philosopher king. As a matter of fact, this determination would have conflicted with Hegel’s objective to conceive of and describe the existing state as an entity that is in itself rational,^[19] for he had to observe that monarchs he knew were not exceptionally strong, neither physically nor mentally.^[20]

While it is true that this Hegelian monarch embodies the state as a whole in actualizing it through his personhood and subjectivity,^[21] he does so only as a moment of the whole. The other moments besides subjectivity are also contained in his princely power:^[22] The requirement to adhere to the decisions of his counselors represents particularity, his being bound by the constitution represents universality.^[23] This embedding of subjectivity in the boundaries of universality and particularity corresponds with the development of right throughout the Philosophy of Right. If the subjective will posited itself as universal, acted, without having an external universal as its determination, all deeds would be contingent on the subject’s particular convictions alone. The substance of what is universally right cannot be based on the particular conviction of any singular individual alone, for it is human to err. And monarchs are – necessarily – human, so they err, too.^[24] Hence, the monarch only has to add the natural subjective element to the objective substance of the law, and he must do so entirely unmoved by contingent whims and caprice.^[25] If, however, the monarch did not observe the constitution and his particular will ruled in lieu of the law instead of within legal boundaries, he would – in contrast to Hegel’s idea of the state – be a despot.^[26]

2.2 Electoral Contingency – I Am the Chosen One^[27]

At first glance, Hegel’s advocating the rule of a hereditary monarch^[28] seems like a surprising foreign body in the Philosophy of Right, for one might expect a philosopher of the Enlightenment at least to deem the democratic republic an acceptable form of government. Hegel himself conceded that his concept of the monarch is the hardest to grasp through ratiocination,^[29] leaving ample room for doubt. Even though some scholars went as far as to fill it in with the suggestion that Hegel cannot have genuinely arrived at the conclusion that the head of a rational state must be a hereditary monarch through the application of his logic,^[30] it is still worthwhile to take Hegel’s statements at face value and regard what the selection of the head of state by means of his natural birth could entail.^[31]

In light of how Trump became President and especially how the run-up to his presidency deepened the partisan rift within the American people,^[32] there is something captivating about Hegel’s skeptical account of the electoral determination of the head of state. When a constitution is good enough to accommodate even the clumsiest of monarchs, why bother electing someone, why risk the division of the people into factions who bitterly fight over who shall represent them? Why not have the most contingent method of selection imaginable – birth – decide? These questions, again, tie in with Hegel’s rejection of the particular arbitrary will as the decisive factor. If individual citizens cast individual ballots, they cannot give their decision any substance above their conviction, above their particular impression which candidate they deem better suited for the office. They might err. What is more, Hegel argues that elections transform the state powers into private property, lead to loss of sovereignty and ultimately to the downfall of the state. His criticism hinges on the determination that the rational state, like the family^[33] and unlike civil society, is not based on the whim, opinion and the arbitrary will of the many.^[34]

Regarding Hegel’s stern opposition to elections, a striking contrast becomes evident. On the one hand, a singular human being – the monarch – must be determined as contingently as possible to counteract pointless division. The contingency in the selection of the monarch also sets him apart from public servants who are not chosen by birth but on the basis of their ability.^[35] On the other hand, the reason as to why there must be a head of state at all is that the ultimate decision must be made by a singular human being. Hegel deemed this necessary because the well-being of the people shall not be surrendered to pure contingency. Rather, human rationality must be instilled in the decision – instead of leaving the decision to the flight of birds or the likes thereof.^[36] Therefore, contingency in decision-making is not per se bad or undesirable but it can serve its purpose if put to use in the right context. A context within which Hegel saw contingency as beneficial rather than detrimental to the rationality of the state is within a constitutional framework that does not allow for contingency to be the last authority. Hence, Hegel’s disdain for elections and his conviction that it does not matter who becomes the head of state corroborate the assumption that the rationality of the state hinges on a constitution that does away with contingency as far as possible. In light of this, it can be ascertained that Hegel did not want to lay the well-being of the people of his ideal state into the hands of any single human being who had to be chosen on the basis of particular abilities. He wanted to put it into the hands of a constitution that provided against the caprice of the people who are tasked with putting the constitutional order into actuality.

3.1 Found, Not Made

The constitution, as becomes abundantly clear from the strong emphasis placed on it for the conservation of the state, is the fulcrum of the rational state. In essence, the Hegelian constitution establishes the state as the actuality of the ethical idea^[37] by means of an organizational arrangement that differentiates the powers of the state without opposing them to each other, allowing for both the generation and conservation of the universal.^[38] This universal is the law, more specifically the laws, of the state – including the constitution itself – which necessarily comprises both rights and obligations of individual citizens.^[39] This interdependence of rights and obligations follows from the determination of the state as the actuality of concrete freedom. It necessitates the reciprocal recognition of individuality and particular interests on the one hand and the universal on the other. Individuality and particular interests must be recognized as they transcend into the interest of the universal, therefore, there must be rights. In turn, individuality and particular interests must recognize the universal as their substantive spirit and act in its interest as their ultimate end. Hence, there must be obligations.^[40]

In parallel with the law in general,^[41] a constitution that actualizes this intricate interplay of individuality, particularity and universality cannot simply be made.^[42] It must be a reflection of the self-consciousness of the people whose freedom it is supposed to institute. Consequently, once a group of individuals has overcome being a mere atomistic crowd as a result of the development of an implicit consensus regarding fundamental values and has therefore become a people,^[43] all making of a constitution is only the changing of the constitution thus created.^[44] In this regard, the legitimacy of a constitution stems from its acceptance by the people. If anyone tried to impose another constitution on a people, be it the most rational constitution ever contrived, they would be destined to fail as long as it is not in accordance with the consciousness of the rational as it exists within the people.^[45]

One cannot conclude, however, that Hegel envisaged a comprehensive mechanism to directly translate an implicit consensus of a people as to how the state should be arranged into positive – constitutional – provisions. He states that a people cannot be deceived about its substantive basis, the essence and the specific character of its spirit, but it is deceived by itself about how it knows this spirit and how it assesses its acts.^[46] Public opinion thus falls short of representing the spirit of the people.^[47] Hegel relegates, as Habermas puts it, public opinion into the sphere of mere opinion.^[48] This is based on the assumption that divided societies do not allow for the emergence of a true public opinion, its precursor rather remaining in the stage of being the subjective opinion of the many^[49] which is no potential source of the universal. In accordance with his rejection of the election of the monarch,^[50] Hegel also rejects the casting of votes as a means to determine – or approximate – the universal will of the people. If individual citizens cast individual ballots, they all vote on the basis of their particular, arbitrary will. Therefore, the electoral formation of the universal is bound to fail because the arbitrary wills of the many cannot transcend their particularity in the process.^[51] Moreover, Hegel assumed that universal suffrage would generate too little political interest anyway because the effect of every single vote would be inconsiderable. Therefore, citizens would ultimately become indifferent to their right to vote and thus place the few remaining voters in an unduly powerful position.^[52]

Still, Hegel wanted the people to exert influence, even though he was convinced that the highest civil servants could act in the state’s best interest on their own.^[53] He even stated that there might be no greater worldly spectacle on Earth than a monarch adding to the authority of the state, which is at first entirely in his hands, another and indeed the basis, namely the incorporation of the people as an essentially influencing component.^[54] The middle ground between granting the people democratic means of influence and not having their interests represented at all is the intermediation through estates. Their deputies exert influence in the legislative process on the people’s behalf^[55] – with the qualification that these representatives are, sure enough, not elected by the people.^[56]

Along with the representation of the interests of the respective spheres of society in the legislative process, another core aspect of Hegel’s Philosohy of Right speaks in favor of determining that the interests of the people are crucial for the law of the state. Namely, the development of objective spirit through the echelons of ethical life as a whole. Before the particular interests of the people are sublated in the universal interest within the objective institutions of the rational, constitutionalized state, they undergo a process of universalization in the institutions of civil society, more precisely in the state based on need.^[57] It is in this realm that people experience the necessity of the recognition of others as equally free persons in order to realize their own particular interests. In a modern society based on the division of labor,^[58] the subsistence of everyone is dependent upon the participation of others in an economic exchange of factors and goods which can only come to fruition if others are recognized as persons having free will. Otherwise, it would be impossible to enter into contracts^[59] for essential goods. Since all parties enter into these exchanges in order to realize their particular interests, it becomes evident that institutions of mutual recognition are conducive to their particular ends. Individuals must want to conserve these institutions if they want to subsist. As a result, the substance of their respective subjective wills is aligned, out of mere necessity. It is then an easy matter for the legislative power of the state to protect these beneficial institutions by means of recognizing them as universally valid and giving them statutory existence.^[60] Hence, legislation in the Hegelian state – both constitutional and downstream – is, more often than not, a matter of finding rather than making.

3.2 It’s in the Way That You Use It

No matter how rational a constitution might be, it is always exposed to the unpredictable forces of the world. The state is not a piece of art, it is the actuality of freedom and must therefore exist in a realm of contingencies and arbitrariness because it could not do any good if it were a mere utopia.^[61] The actualization of the constitution and the law in general is dependent upon individuals^[62] who give their subjective will the substance of the universal. The question whether the individual or the state power that is constitutionally designated to give the law existence will satisfy this need, however, is afflicted with an element of uncertainty. After all, it is impossible to eliminate the contingency and the arbitrary in human decision-making altogether.^[63]

While contingency does not only enter the application of law when officials give in to their caprice and thus abuse their power but is a necessary element of the law entering into existence, Hegel envisaged remedies against civil servants placing their arbitrary will above the law. Hierarchical organization, answerability and the counterbalancing forces of the corporations are supposed to forestall the abuse of power.^[64] Another safeguard against the risk that state officials might abuse their power can be seen in the assured satisfaction of their particular needs. The satisfaction of their subjective ends, however, must be sacrificed. They shall find satisfaction only in the fulfillment of their duty.^[65] From this follows that Hegel saw the possibility that the universal as conveyed in general norms might fall short of being given actuality through the application to concrete cases because state officials might simply ignore the universal in favor of their subjective ends. For civil servants, he foresaw safeguards. For other state officials, the case is more difficult.

As was already pointed out,^[66] Hegel wanted the monarch to be bound by the constitution in a way that eclipses his particularity.^[67] What follows is that the monarch must observe the constitution. This is self-evident. It is also obvious that the constitution lacks actuality as long as the monarch, who constitutes one of the state powers on his own, does not observe it. This is not a substantial danger to the state as a whole as long as the other state powers react and make him comply with the constitution.^[68] But there is no guarantee that the other state powers will react accordingly. If the competent officials collectively refuse to actualize the constitution, there is no constitution in actuality. A constitution has to be put to use by people.

4.1 So Don’t You Ever Abuse It

Without going into too much detail regarding the exact statements Trump made from when it became clear that he had been defeated in the 2020 US presidential election up until his ban from social media on January 8th, 2021, it can be considered a fact that he disregarded the result of the election without any substantial evidence and that he did not shy away from encouraging an angry mob to march to the Capitol in order to keep senators from confirming the result of the election.^[69] Notwithstanding that Hegel did not hold democratic elections in high esteem,^[70] they are a fundamental building block of the US constitution and they most certainly reflect the consciousness of the rational as it is present in the American people.^[71]

The denial to concede the election and the attempts to stay in power in disregard of the constitution, no matter the collateral damage, are a prime example of a problem Hegel described in his Philosophy of Right. Quite contrary to the Hegelian idea, the head of state who is supposed to be unmoved by caprice^[72] ignored his position in the organism that is the state, acted as if he were independent of the other state powers and thus left the organism as a whole to its fate, namely – as Hegel figuratively puts it – to perish.^[73] That is, if the other state powers cannot find a way to rein in the rogue part of the organism and reestablish the unity of the state powers by forcing the rogue power back into its position.^[74] Regarding the head of state, specifically, if his particular will rules in lieu of the law, there is no rational constitution in actuality at all but only despotism.^[75]

The fact that Trump acted through speech alone cannot be used in his defense. Hegel despised the notion that words shall be mere wind when those who uttered them are confronted with the detrimental effects of their speech. On the one hand, individuals demand that their speech is respected and held in high esteem as the property of their spirit, but on the other hand they are so quick to indicate the irrelevance of speech once their own speech becomes a problem.^[76] Put simply, speech has effects. Speech acts are acts. Therefore, crimes can be committed through speech. Hegel compiled a list of such crimes. Incitement to insurrection is on this list. Of all things, disparaging public officials, first and foremost the monarch, is on the list as well.^[77]

Freedom of speech in the sense of purely negative freedom to say whatever one pleases is therefore not the Hegelian concept of freedom of speech. It would be surprising if it were, too, because any purely negative freedom would not be in line with Hegel’s general understanding of freedom. If one has to respect other individuals in order to be able to contract and obtain the goods needed to survive,^[78] it would be inconsistent if one could negate the personality of these same people by saying the cruelest things about them^[79] just because they come to mind. The universal rules that are objective in the institutions of civil society cannot simply be thrown overboard.

What is more, the most basic rule is the following: Be a person and respect all others as persons.^[80] Making an argumentum a fortiori, the same principles hold true vis-à-vis the state. The individual has rights against the state, but obligations as well.^[81] Only the subjective will that respects these universal principles is free, for the subjective will that does not respect these principles is directed against freedom – and it might not even know it. Thus, in order to actualize the constitution against the head of state who refuses to give it existence and directly attacks freedom itself instead, albeit in the name of freedom, the other state powers have to react and try to reintegrate the rogue state power into the harmonious organism that is the state.

4.2 They Want to Impeach Me (I’m Not Worried!)^[82]

The US constitution holds a process in place that is supposed to fulfill the purpose of reintegrating the office of the President into the state organism, namely impeachment. Impeachment, that has its legal basis in Art 2 s 4 of the US Constitution which states that ‘[t]he President […] shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors’, fulfills that purpose by allowing for the replacement of the person holding the office with another individual. Due to his incitement of the attack on the Capitol, the House of Representatives impeached Trump for the second time during his presidency.^[83] Even though many Republican senators articulated that Trump played a relevant role in the storming of the Capitol and acknowledged that his acts were wrong, they still did not vote for Trump’s conviction in the impeachment trial. Most based their decision on a jurisdictional issue – the trial took place after the President had eventually left office. The consequence is that he could be elected President again.^[84] This is a perfect example that even well-devised constitutions rely on individuals who have to actualize it. If partisan affiliations seemingly supersede the common good, the chance at actualization dissipates.

5.1 Knights in Shining Armor?

While those constitutionally competent to rein in a President whose conduct got out of hand seemed to be in a gridlock, operators of social media platforms were obviously much more flexible to react to objectionable content on their platforms. When they decided to ban Trump from using their services after the attack on the Capitol, they brought a spiral of ever more controversial communication to a sudden halt. As one might suspect, as of April 2021, 88% of Republican or Republican-leaning American adults opposed this decision while 81% of Democrats or Democratic-leaners welcomed it. All in all, approval and rejection are split roughly in half.^[85] For those who approve and those who could have been targeted by Trump’s continued attacks, social media operators might appear as the knights in shining armor who saved not only individuals but maybe even the US from the dire consequences the unbounded communication of the then President could have entailed.

A look at the long-standing symbiosis between social media operators and Trump, especially regarding Twitter, however, calls for a more differentiated view.^[86] Platforms do, for the most part, not generate their own content. They rely on users to provide content other users find interesting. The ultimate end of social media operators is the maximization of revenue which they reach by means of showing as many advertisements to users as possible. This necessitates that there are users on the platform and that there is content which users find engaging enough to stay on the platform and keep looking at more and more advertisements.^[87] Therefore, platforms operate in the system of needs.^[88] They grant others the freedom to use their platform because they have to do so if they want to maximize their revenue. If it benefits their particular ends, it is reasonable for platforms to grant more leeway to users who attract more attention to the platform – and Trump attracted a substantial amount of attention.^[89] What is more, in the system of needs, reputation is an indispensable asset, for people will be reluctant to enter into transactions with people who are not trustworthy. Behaving neutrally towards political content, at least in the perception of the general – and especially the Republican-leaning – public,^[90] seems less of a risk towards one’s own reputation than positioning oneself as the entity that gets to judge what can be said and what cannot. This is true especially for the US whose national identity is based on freedom of speech^[91] understood primarily as the solely negative freedom to be allowed to say whatever one pleases without outside – more precisely government^[92] – interference.

That is, of course, until continuing to carry certain political content becomes a danger to one’s revenue because people might turn away from the platform in disgust. Or, more optimistically, until one acknowledges that the conduct that is beneficial towards one’s own particular economic ends might be detrimental to external interests. Say, the universal interest in functional public discourse or the particular interest of others not to fall victim to violence incited on the platform one operates. The problem platform operators encounter if they want to embrace their active role regarding content on their platform is that, at least in the US, there are for the most part no clear rules on how to decide. They might find themselves in less of an uneasy situation if Congress simply passed a law on which content must be kept online and which content must be deleted, who must be deplatformed and who must be left alone. Even though Internet exceptionalism ranks high among lawmakers around the world, national states can enforce their law and also realize their constitutional values vis-à-vis people no matter whether they act offline or online. The US only chose not to. Of course, the US did not simply suspend the validity of its constitution in online constellations. But it took a giant step back from giving it existence online in s 230 Communications Decency Act. This law does not only exempt people online, including platform operators, from liability for third party content but it also expressly allows for the restriction of access to or availability of content platform operators find objectionable, ‘whether or not such material is constitutionally protected’.^[93] People can thus not confidently trust in having their constitutional rights – including freedom of speech – realized online while social media operators were thrust in a position to either quasi-constitutionalize, try to make reasonable decisions based on their particular convictions or relish their far-reaching freedom to do as they please.

In this respect, Hegel’s criticism of Kant regarding the moral standpoint^[94] seems to find confirmation. For years leading up to the eventual ban, Trump had been communicating glorifications of violence on social media. ‘[W]hen the looting starts, the shooting starts’ in response to riots in Minneapolis after the death of George Floyd is just one of many examples.^[95] It might be that the Owl of Minerva only took flight at dusk when Trump’s presidency was coming to an end or that reputational motives suddenly showed effect. It is, however, clear that universal rules that reflected more than the subjective assessment of arcane decision-makers in the platform-operating firms – most saliently their CEOs – could have contributed to making the decision more transparent and acceptable to the general public. This is not to say, however, that the decision definitely infringed Trump’s freedom.

As was already presented,^[96] for Hegel, freedom certainly does not mean the absence of bounds to the immediate translation into action of every impulse or of whichever thought comes to mind. Freedom means the ability to realize self-imposed ends not against the ends of others but within a social structure that allows for the mutual recognition of the ends of each other as a necessary precondition for the realization of one’s own ends. Only the free will that grants others the same space to realize their ends as it needs for itself can legitimately demand having space granted by those who could otherwise smother its every attempt to realize itself. This legitimate demand is, however, not enough to vindicate trust that others will act accordingly – unless the demand is embedded in a social structure that stabilizes mutual recognition among its participants.^[97] This stabilizing function should be exerted by the state, performed by means of a generally valid normative system.^[98] In turn, the people bound by this normative system can lay their trust in the state since they can observe that it maintains their particular spheres and the entitlement, authority and welfare of these spheres.^[99] If the state fails to realize this interplay between different free individuals, social media operators might be in the right when they give this differentiated notion of freedom existence. Even if, for lack of a universal will they routinely adhere to, the stabilization of the freedom of those affected by Trump’s communication is a fluke.^[100]

5.2 Social Media’s Own Global Constitution?

In light of the power social media operators have over their platform and the great leeway they were given in matters concerning what should be allowed on their platforms, the question whether these operators need to be bound by a quasi-constitutional set of rules in order to legitimize their conduct arises. After all, they are ‘the New Governors’^[101] when it comes to online speech and their importance for public discourse must not be underestimated. Moreover, it can be safely stated that social media operators want to go by their own globally applicable rules, even though they do reference international or even national human rights frameworks.^[102] But before one jumps to the conclusion that they want to establish a self-righteous order for the sake of realizing an extensive claim to power, it needs to be acknowledged that there simply is no global constitution they could base their conduct on and that having to implement the laws of every single country in the world^[103] on one’s platform^[104] is not desirable from an economic point of view. Are national polities at fault and can social media operators – at least in the field of speech regulation – relieve possible constitutional horror vacui? Realistically, it is highly doubtable whether there even could be a genuine global constitution. While social media are not and will never be states but are only private actors among many in civil society, they could still impose an organizational arrangement that differentiates between functions such as rule-making and decision-making and that strives to create universally valid rules that stipulate both rights and duties for users.^[105] Moreover, attempts at organizing ‘platform powers’ in different moments of the whole have also played a part in the ban of Trump from Facebook. The Facebook Oversight Board, a platform council that mimics the adjudicative authority in states, ruled that Trump shall not be banned indefinitely but his deplatforming shall be reassessed within two years.^[106] Such institutions can contribute to the transparency of decisions and thus enhance decision-making and legal certainty for cases concerning the platforms as a whole.^[107] Even if the basis of legitimacy for any such institution is, as with all constitutionalization of social media platforms, not strikingly evident.

At first glance, a legitimizing factor could be seen in the – purportedly contractual – assent to the unilaterally drafted rules every single user expresses when they join social media platforms. Thus, the basis of legitimacy seems not unilateral but bilateral – and the sheer number of bilateral contracts causes the unilaterally drafted rules to apply to the actions of billions of people. But these contracts suffer from a crucial shortcoming^[108] which makes their aptitude to serve as a basis for a global quasi-constitutional framework highly doubtable. A state cannot, according to Hegel, be founded on a contract because it would be based on the arbitrary will of the many.^[109] This demur could also apply to the quasi-constitutional legal orders on online platforms if they shall be applied independent of state legal systems. The problem with the contrat social is namely that it mixes up the common will of a number of people and the universal will that can only be brought forth in a legislative process within a state. Contractual relations cannot reliably transcend the particular interests of the contracting parties. Hence, contracts only reflect one element that is sublated in the state as the idea of freedom in actuality. The element of trust as sublated from the realm of the family in the rational state is missing entirely. Under these conditions, rules that govern speech online can be a byproduct of the exchange between user and platform operator, but they cannot legitimately claim to be universal. What is more, there can be no safeguard against them being detrimental to society as a whole, for example if they do not arrange for the preservation of the public sphere as a place for political and general education^[110] and for the formation of opinions.^[111]

Since there is no shared identity of users that would enable them to speak up and claim ‘we are the users’, one is inevitably left with a multitude of people – obviously – ascertaining that each of them is I, the user. Under these conditions, the making of a quasi-constitution seems impossible, for there is no rule that could determine whether the newly drafted rules are legitimate. After all, a constitution cannot simply be made.^[112] On a social media platform where everyone tries to do as they please, there is no constitutional order but only an atomistic crowd,^[113] bound not by law but by technologically imposed limits alone.^[114] As long as this crowd does not overcome its atomization and develops a common understanding of what ought to be and what not, there can be no constitutional order because all constitutional legislation is based on an existing order^[115] and cannot make something from nothing.^[116] As long as there is no we, the users, it is questionable whether any social media platform can be constitutionalized in a manner that users find acceptable.

This is contrasted by the prevalent approach to not only institutionalizing and thus constitutionalizing the exercise of power social media operators have but also creating frameworks for the exercise of freedom, most importantly frameworks that weigh free speech against the interests of those who are harmed by speech. This prevalent approach is the unilateral drafting of rules. Meta Platforms, Inc,^[117] for example, takes the approach of drafting rules its product policy team deems ‘good’ and ‘thoughtful’, rules that ‘make […] sense’.^[118] Hence, the company obviously strives to create rational rules in a manner that provides everything for the users, nothing by the users. But rationality alone is not sufficient for the legitimate imposition of rules on anyone. Hegel illustrated this by the example of Napoleon’s attempt to impose a constitution more rational than their own on the Spaniards. The endeavor was destined to fail because the Spaniards did not want this constitution.^[119] Hence, even if the rules drafted by social media operators and teased out by more-or-less independent councils were the most rational set of rules in the world, they could not be legitimately imposed on users – and much less on non-users. The ultimate litmus test for a legitimate constitution is not whether it is in itself rational – but whether it is accepted by those who are bound by it. Thus, as long as there are sets of rules that convincingly purport to reflect the universal will of a people, these rules should be put to effect. If social media operators are thrust in a position where they have to quasi-constitutionalize, their rules might never feel like more than second-best. Users might reluctantly accept them, but they will not feel fully represented.