Monday, May 27, 2013

Responses to Armed Rebellion in the Early Days of the Constitution

I have already established that the Founding Fathers understood the danger that private armies pose to liberty; that discussions of the militia at the Constitutional Convention were addressed to which level of government would regulate it, and that discussions of armed rebellion were on how to suppress it; that the Federalist Papers repeatedly condemn armed rebellion; that they believed it was possible to check the danger of a standing army without resorting to violence; that when they did affirm the right of revolution, it was by the organized militia, commanded by the states; and that Anti-Federalists were unimpressed, preferring to avoid armed confrontation, rather than to win it.  But in the end, actions speak louder than words.  We should look, not only at what the Founding Fathers said about armed resistance to the government they were founding, but what they actually did when such resistance occurred.*

The Whiskey Rebellion.  This took place 1791-1794, which means that the Second Amendment was actually ratified while it was underway.  The Whiskey Rebellion was a rebellion in western Pennsylvania, and some other parts of Appalachia, against a whiskey tax.  There is no need to go into all the grievances here, or how they were met.  The rebellion began with petitions, conventions, and scattered attacks on revenue officers.  These attacks escalated, culminating (in 1794) with the local militia besieging the house of a federal marshal and the militia leader, a Revolutionary War veteran, being killed.  The rebels threatened to secede, and to march on Philadelphia.  It was at this point that George Washington summoned the militia of New Jersey, Pennsylvania, Maryland and Virginia to suppress the rebellion.  (It being a rebellion against federal authority, he did not need the authorization of the state authorities).  The rebellion collapsed in the face of the militia, but sporadic resistance to the tax continued.  Ten Whiskey Rebels were tried for treason, with two convicted, sentenced to death, but pardoned by Washington.  (Others were tried and convicted for various violent acts under state law).  Wikipedia quotes a legal historian as arguing that the Whiskey Rebellion established the precedent that the federal government was a government of the people, and that violent rebellion against it was therefore unlawful.  But no one, including the Whiskey Rebels themselves, argued that it was authorized by the Second Amendment.

Fries Rebellion.  This incident is less known than Shays Rebellion or the Whiskey Rebellion.  This was a revolt in German-speaking parts of eastern Pennsylvania against a house tax levied to support a military buildup for confrontation with France.  The local militia appears to have fought on both sides, arresting (and later releasing) tax assessors on one occasion, but holding back a crowd seeking to free people arrested for tax resistance on another.  Three men (including John Fries, the ringleader) were sentenced to death for treason.  John Adams pardoned them, not on the grounds that the Second Amendment authorized such rebellions, but that it was not a true rebellion at all, but simply anti-tax riots.  The transcript of the Fries trial is here.

The Alien and Sedition Acts.  It might seem odd to list these under the rubric of armed rebellion, since no armed rebellion took place.  They nonetheless indirectly touch on the subject.  Obviously, these Acts, inf flagrant violation of the First and Tenth Amendments, criminalized any "false, scandalous and malicious writing" against the government.  These were (correctly) perceived by Jeffersonian Republicans, not only as outrages against freedom of the press, but as attempts to suppress the opposition.  Jefferson was sufficiently alarmed by these Acts that he wrote and persuaded the Kentucky legislature to pass the Kentucky Resolution, which appropriately denounced them as an outrage, but went altogether too far, declaring that states could find federal statutes unconstitutional and block their enforcement within the state, and threatening "rebellion and blood" if the Acts were enforced.**  Clearly, then, Jefferson believed that the Alien and Sedition Acts were dangerous enough to possibly justify armed revolution.  But although he cited the First Amendment guarantees of freedom of the press and Fifth Amendment guarantees of due process of law (to protest a section permitting the President to deport any foreigner at will), and quoted extensively from Article I, Section 8 to show that the Acts were not constitutionally authorized, nowhere did he suggest that the Constitution itself authorized armed rebellion.

The Embargo Act.  Thomas Jefferson was obviously the leading proponent of the insurrectionist theory of opposition to government in his day.  Things became different when he was President.  In response to British and French infringements on the neutrality of American ships in the Napoleonic Wars, Jefferson placed an embargo on trade with Britain and France.  The embargo soon proved even less popular in New England than depredations against American ships, and soon smuggling across the Canadian border was rampant.  The militia was notably ineffective in suppressing smuggling, and often sympathetic to the smugglers. Jefferson dispatched gunboats to stop the smuggling, and exchanges of gunfire between smugglers and revenue cutters became common.  So, did Jefferson respond as he had to Shays Rebellion?  Did he express satisfaction that the people still kept up the spirit of resistance?  Did he say that, although the people of New England were wrong in seeing the embargo as oppressive, it would be "lethargy" and the fore runner of death to liberty if they had nonetheless submitted?  When there were, in fact, a few killings, was he pleased to hear that the tree of liberty was being appropriately fed?  Quite the contrary, he declared an insurrection and called on the militia to suppress it.  He also sent in the regular army and navy to support enforcement.  Ultimately, however, he did relent and agree to a repeal of the embargo.  Ultimately, however, Jefferson's general principle of condoning armed resistance to government did not extend to his own government.

I intend to continue further with this topic, but after a break to discuss other, more recent, events.

*Incidentally, here I should address an apparent contradiction in the Constitution.  Article IV, Section 4 authorizes the federal government to protect each state, "on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."  By contrast, Article I, Section 8, Clause 15 authorizes Congress, "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."  It would appear then, that Article IV, Section 4 requires a state to request federal action to suppress a rebellion, while Article I, Section 8, Clause 15 does not.  The difference appears to be that the state must request intervention in case of a rebellion against state authority, but no such request is needed if the rebellion is against federal authority.

**Madison authored the more moderate Virginia Resolution, which limited itself to protesting the Acts as unconstitutional and made the sort of avowals of loyalty that are only necessary when one's loyalty is in doubt.

Sunday, May 19, 2013

Anti-Federalists on Armed Rebellion

The usual insurrectionist narrative on the Second Amendment goes somewhat like this:  Anti-Federalists feared that the federal government (especially its standing army) would become a tyranny.  Federalists reassured them that this would not happen because the citizens were armed and would be able to resist such usurpation.  Anti-Federalists expressed the fear that the federal government would take their guns away so the citizens would not be able to resist.  Federalists therefore agreed on the Second Amendment, that would forbid such a measure.

To address the extent to which this was so, it is necessary to look beyond the more usual sources such as Madison's notes from the Constitutional Convention and the Federalist Papers.  I therefore turn to Bernard Bailyn's The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles and Letters During the Struggle Over Ratification.  This is a two-volume compilation of just what it says, running to nearly 2000 pages.  It is nowhere close to everything out there.  The largest compilation of debate on the ratification of the Constitution runs to about 50,000 pages, so Bailyn's book is at most about 4% of the debate.  However,  even taking just 4% of the debate, a lots of the authors on both sides are saying the same things.  Then as now, certain talking points got circulated over and over by the same team.  It seems reasonable to assume, then, that Bailyn presents a fair overview of the mainstream views on ratification, pro and con, with a few weird or fringy views thrown in for good measure.*

Looking over Bailyn's compilation, then, there is no doubt that Anti-Federalists greatly dreaded a standing army as a threat to liberty.  It is also true that it was a common Federalist talking point to argue that the armed citizens could resist any usurpations by such an army.  So how did Anti-Federalist reply to that?  For the most part, they didn't.  Throughout the entire volume, I saw a grand total of two answers to the argument that the citizens and the states would prevail in an armed showdown with the federal government.

One was by "Brutus," the leading Anti-Federalist pamphleteer in New York.  Indeed, the Federalist Papers  can fairly be seen as an ongoing dialogue between "Publius" and "Brutus," albeit a very uneven one, with Publius writing a whopping 85 letters, as opposed to Brutus' mere 16.  "Brutus" somewhat obliquely addressed the issue of armed rebellion in No. 10.  This letter expresses Brutus' fear of a standing army in time of peace.  He fears either that the army may be used by people in power to impose their will, or that it may overthrow the constitutional government altogether and establish a military dictator.  Brutus concedes that unilateral disarmament is not a good policy, and therefore that armies cannot be safely banned altogether.  He proposes, instead, to allow only the minimum force necessary to guard the borders, with additional troops permitted only in an emergency and only by a 2/3 vote.  Brutus then makes clear that he does condone raising temporary forces to deal with invasions and rebellions, such as the recent rebellions in Massachusetts and Pennsylvania.  Speaking specifically of Pennsylvania, Brutus says, "[A] number of armed men had levied war against the authority of the state, and openly avowed their intention of withdrawing their allegiance from it."  In other words, the Anti-Federalist Brutus no more condones rebellion than the Federalists Hamilton and Madison.  As for what amounts to the right of revolution, Brutus says:
It is farther said, that no danger can arise from this power being lodged in the hands of the general government, because the legislatures will be a check upon them, to prevent their abusing it. 
This is offered, as what force there is in it will hereafter receive a more particular examination. At present, I shall only remark, that it is difficult to conceive how the state legislatures can, in any case, hold a check over the general legislature, in a constitutional way. The latter has, in every instance to which their powers extend, complete controul over the former. The state legislatures can, in no case, by law, resolution, or otherwise, of right, prevent or impede the general government, from enacting any law, or executing it, which this constitution authorizes them to enact or execute. If then the state legislatures check the general legislatures [sic], it must be by exciting the people to resist constitutional laws. In this way every individual, or every body of men, may check any government, in proportion to the influence they may have over the body of the people. But such kinds of checks as these, though they sometimes correct the abuses of government, oftner destroy all government.
Brutus, in other words,  wants some sort of state veto on federal laws.  He does not want states to counter federal power by fomenting rebellion because he believes it carries the danger of anarchy.  And he generally seems to think the same of private citizens formenting rebellion.

The other source is in a speech by Melancton Smith, the leader of the Anti-Federalists at the New York ratification convention.  As part of a general argument that the federal government would be more powerful than the states, Smith said:
But the whole reasoning of the gentlemen [Hamilton] rests upon the principle that the states will be able to check the general government, by exciting the people to opposition: it only goes to prove that the state officers will have such influence over the people as to impel them to hostility and rebellion. This kind of check, I contend, would be a pernicious one, and certainly ought to be prevented. Checks in government ought to act silently, and without public commotion. I think that the harmony of the two powers should by all means be maintained: if it be not, the operation of government will be baneful; one or the other of the parties must finally be destroyed in the conflict. The constitutional line between the authority of each should be so obvious, as to leave no room for jealous apprehensions or violent contests.
In other words, Smith does not want to prevail in an armed confrontation with the federal government. He wants to avoid such a confrontation in the first place.  He recognizes that keeping government in line by the threat of violence leads to civil war and quite probably a ruinous outcome.  If only our insurrectionists of today had equally good sense!

Since "Brutus" and Melancton Smith make the same point about the undesirability of states checking the federal government by inciting rebellion against it, and since both are New Yorkers, the obvious question is whether Melancton Smith was, in fact, Brutus.  Most scholars apparently believe not, and think instead that "Brutus" was Robert Yates, a New York judge and delegate to the Constitutional Convention.

These, it should be noted, are the only responses at all within a 2000 page volume by any Anti-Federalist to the common Federalist argument that the people and the states would prevail in an armed confrontation with the federal government, and both give essentially the same answer -- they want to prevent, not win, such a confrontation.  Other Anti-Federalist writings discuss the topic of rebellion, but all agree with the Federalists -- that rebellion is an even to be suppressed.

And ultimately, actions speak louder than words.  I will next get to actual armed rebellions throughout our history.

Saturday, May 18, 2013

Federalist Paper No. 46 on Armed Revolution

Federalist Papers Nos. 28 and 29 (both by Hamilton) affirm the right to violent revolution against the new government being found.  However, the one most often cited, and at most length, is No. 46, so once again I will cite it at length, and with extensive unpacking.

Let me express gratitude to a debate partner on David Frum's blog for drawing my attention to the following passage from No. 46:
The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other.
My debate partner took this to mean that since ultimate power rests with the people, not the government, since the people should be seen as the superiors of the government, the people retain the right of revolution.  While this letter does later make that point, it is not the point being made here.  The point here is simply that, since both the federal and state governments are agents of the people, transferring power from the states to the federal government is not denying power to the people, but simply transferring power from one set of agents to another.  In other words, the federal government, no less than states, is a government of the people.  Anti-federalist forgot that point at the time; some insurrectionists forget it to this day.

Madison then continues with a long discussion of why the states will generally hold the upper hand (proven wrong, in hindsight), and why the federal government will not be able to bring about the end of the states by any means short of military force.  These discussions need not concern us, until he gets to the subject of military force:
The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.
In other words, he sees no danger of such a thing actually happening.  But let us say Madison was wrong.  The federal government in 1787 did not have a standing army large enough to impose a military dictatorship; today it does; no one seriously proposes to disband it.  So, supposing someone actually intends to use our army to create a dictatorship, how does Madison propose to counter the threat:
Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
 We can start by seriously questioning Madison's assumptions that an army cannot exceed 1% of the population.  Within five years of Madison writing this, the Napoleonic Wars began, and countries began fielding armies on a scale hitherto unimagined.  Some estimates of the armies the US fielded in the Civil War are as high as 10% of the population.  And what about his comment on that "able to bear arms."  Despite the assumption that to "bear arms" simply means to carry a gun, it seems unlikely that he means those physically capable of carrying a gun.  The other meaning of "to bear arms," i.e., military service, seems more likely.  In other words, a standing army cannot exceed 1% of the total population, or 4% of those eligible for military service.

"To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence."  Clearly then, while Hamilton favored a select militia, Madison, believed it would consist of every man and his gun.  But not every man and his gun acting on his own, outside of military structure or government authority.  To the contrary, this militia will have officers and be commanded by the state governments.

"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."  Supporters of the insurrectionist theory like quoting Madison's comment that the American people possess the advantage over everyone else of being armed and thus able to overthrow their government.  They do  not usually quote his next comment, on the existence of subordinate governments, let alone that these subordinate governments appoint militia officers.  This once again refers to the Constitution Article I, Section 8, Clause 16 which authorizes Congress the power "To provide for organizing, arming, and disciplining, the Militia . . . reserving to the States respectively, the Appointment of the Officers."  The fact that Madison expects the militia resisting the federal government to have officers appointed by the states makes clear that he expects any revolution against the federal government to be fought by the militia as described in this clause, and he expects it to be commanded by the states.

"Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it."  Once again, insurrectionists like to cite the part of Madison's quote in which he says that European governments are afraid to trust the people with arms, for fear of overthrow.  But they neglect to mention that he adds, "And it is not certain that with this aid alone they would be able to shake off their yokes."  Madison then goes on, once again, not just to talk about the importance of state governments, but to mention that states appoint militia officers and that these officers are "attached both to them [state governments] and to the militia."

In short, when Madison conceives of a revolution against the federal government, he assumes that it will be fought by the organized militia, as described in Article I, Section 8, Clause 16, and commanded by the state governments.  This is consistent with Hamilton's warning that if "citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair," they are unlikely to prevail, but with state governments to command them, the people will succeed.  It is also consistent with Hamilton's assumption that the select militia, not the general public, will be the ones to resist usurpations by a standing army.

In short, neither Madison nor Hamilton had any use for revolts by every man and his gun.  These were the "rebellions," "insurrections," and "seditions" they believed were properly suppressed.  True revolution would be fought by the state militias, commanded by the state governments, just as had been the case during the revolutionary war.  I will next address how Anti-Federalists responded.

Saturday, May 11, 2013

Federalist Paper #29 on Armed Revolution and the Militia

The next Federalist Paper to affirm the right of armed revolution is No. 29, which is also the only one to discuss the militia at length.  It is often quoted, not only in favor of the right of armed revolution, but also to support the proposition that the right to keep and bear arms is individual and (possibly) that the militia is every man and his gun with no military organization.  But, IMO, it is quoted out of context.  I will therefore have to quote it at length (perhaps in its entirety) with considerable analysis to explain what is going on.
To the People of the State of New York:
THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.
It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS.''
This addresses the provision I have discussed before, the Constitution, Article I, Section 8, Clause 16.  It also makes quite clear that the "militia" are to be "disciplined" and "called into public defense," that they "discharge the duties of the camp and the field," and that power over the militia is given to Congress to ensure "uniformity."  This is hardly consistent with the militia being every man and his gun, outside government authority.
Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper.
Here Hamilton is clearly using "well-regulated" not to mean knowing how to shoot, but regulated by actual laws and regulations.  He is discussing which level of government is to "regulate" the militia, not assuming that every man and his gun will adequately self-regulate.  He is also proposing the militia as an alternative to a standing army, and applauding as good the federal government's ability to command it when needed.

I omit a paragraph in which Hamilton assures his readers that even though the federal government is given no express power of posse comitatus, such a power is implied as Necessary and Proper.  Posse comitatus was the power of the sheriff to summon every able-bodied man and his gun for law enforcement.  Some opponents of the Constitution feared that in the absence of such a power, the federal government would have no alternative but to call up the militia and regularly have a military execution of its laws.  Incidentally, it is fair to ask what the difference is.  The militia consisted of ever able-bodied man and his gun.  Posse comitatus consisted of every able-bodied man and his gun.  The militia had regular training and drill, which (so far as I know) posse comitatus did not, but the men called into action for posse comitatus would hardly forget their militia training.  The only difference, so far as I can see, is that posse comitatus was under the command of the sheriff and the militia was under command of militia officers.  How important was the difference?  Apparently many people in 1787 considered it important.

There was one other concern.  It was that Congress might organize a "select militia" consisting of less than every man and his gun, and that such a militia might threaten liberty.  Hamilton next addresses that issue:
By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse:
"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
 The sections I have italicized are often quoted to support the proposition that the militia consists of every man and his gun outside of any military training or structure.  Clearly Hamilton is using the term "all the militia" to mean all able-bodied men of military age and saying that it is not realistic to expect so large a population to have sufficient training to "entitle them to the character of a well-regulated militia."  He simply wants them to be adequately armed and equipped and assemble them once or twice a year to make sure it is done.  Clearly he thinks it is too much to expect every able-bodied man to belong to any sort of serious military body or have any sort of serious military training.  Rather, he thinks that they should be assembled once or twice a year to make sure they are adequately armed and equipped.  So he does think that people without the military training to be a serious "militia" should be adequately armed, but he appears to see this as a duty under the authority of government rather than an individual right, i.e., he wants to assemble them once or twice a year to make sure it is done.  Less clear is why he considers this important.  Hamilton then goes on to give a quote used to support the argument that the purpose of the militia is to resist tyrannical government:
"But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.''
Thus differently from the adversaries of the proposed Constitution should I reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. But how the national legislature may reason on the point, is a thing which neither they nor I can foresee.
Hamilton, in other words, responds to warnings that Congress might form a select militia, not by saying that a select militia is a contradiction in terms since the militia by definition consists of every  man and his gun, nor by saying that Congress would never be so wicked.  Instead, he thinks it is a good idea.  Choosing a small group, he say, will make it possible to give them sufficient training to make a real military difference.  Furthermore, he say, such a militia will be able to resist and threat from a standing army because it is "little, if at all, inferior to them in discipline and use of arms."  Note, then, that although Hamilton believes the "militia" will resist encroachments by a standing army, he does not mean every man and his gun.  Rather, he means this select militia with sufficient military training.  Hamilton, it should be  noted, fought in George Washington's Continental Army and had a low opinion of fighting abilities of the state militias.  So, if Hamilton did not really think every man and his gun amounted to much as a fighting force, either on behalf of the government if called into service or against it if it became tyrannical, why bother to ensure that every man was nonetheless adequately armed and equipped?  He does not say.  And how do we ensure that the select militia does not become a threat to liberty?  Here Hamilton does answer:
Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia.
 This a reminder, in other words, that the militia are not regular troops.  Though Hamilton favors a select militia, they will be a reserve, living as civilians most of the time and therefore no different than their fellow-citizens.  Though the federal government will regulate the militia (meaning, once again, set the rules by which it operates) and be able to call it into federal service, the states will appoint the officers and can be trusted to choose men who are politically reliable.  This letter cannot possibly be taken to mean that the militia are every man and his gun outside of formal military organization, or that their primary purpose is revolution (even if they can do so, if need be).

Most of the rest of the letter is best characterized as a rant, so I omit it.  People were worried that militia members could be called upon to serve outside their state and feared they might be used to oppress citizens of another state.  Hamilton dismissed the idea as absurd, although he does add, "In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition."  So, in the end, this letter, too, condemns "insurrection" and "sedition" and calls for it to be suppressed.

Next I will address, Number 46, the letter most often cited in support of revolution.

Wednesday, May 8, 2013

Federalist Papers Support the Right to Armed Revolution: No. 28

Although, as I have mentioned, the Federalist Papers repeatedly condemn "insurrection," "rebellion" or "sedition," they do also three times affirm the right of revolution and assure their readers that the people could prevail against the federal government.

The first one to do so is, surprisingly, No. 28, which I quoted before as condemning insurrection and warning that sometimes force would have to be used to suppress it.
If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance.
The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them. The natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small, and of course more competent to a struggle with the attempts of the government to establish a tyranny. But in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!
It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.
The great extent of the country is a further security. We have already experienced its utility against the attacks of a foreign power. And it would have precisely the same effect against the enterprises of ambitious rulers in the national councils. If the federal army should be able to quell the resistance of one State, the distant States would have it in their power to make head with fresh forces. The advantages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself, its efforts would be renewed, and its resistance revive.
We should recollect that the extent of the military force must, at all events, be regulated by the resources of the country. For a long time to come, it will not be possible to maintain a large army; and as the means of doing this increase, the population and natural strength of the community will proportionably increase. When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.
Again, let us unpack this.  Clearly, Hamilton is affirming the right of revolution against any government, including the one he is founding.  At the same time, he doesn't seem too optimistic about revolutions fought by every man and his gun with no further organization.  Quite the contrary, when, "The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo."  Rather, what is needed for revolution to succeed is state governments to direct it.  He then goes on to say that, since the Senate is elected by the state legislatures, they will keep a lookout and and be able to maintain better control than the unorganized public.  (Certain segments of the population at this point will point out that, since state legislatures no longer elect Senators, this safeguard is gone).  He also discusses the greater efficacy of resistance when there are state governments to coordinate it.  And he mentions the size of the United States, which earlier in the same essay he argued would make it easier to suppress insurrections, will make it harder to defeat a true revolution.

In short, Hamilton does not believe that in case the federal government starts to become a dictatorship, revolution will be fought by every man and his gun with no further organization.  He believes it will be commanded and directed by the states, just as had been the case in the American Revolution.  In my next post, I will get to who he expects to be doing the fighting.

Sunday, May 5, 2013

How the Federalist Papers Propose to Counter the Dangers of a Standing Army without Resorting to Armed Force

One common argument in favor of "Second Amendment solutions" is that our government has enough armed might to establish a military dictatorship, and that the only remedy is for private citizens to be sufficiently armed to be able to fight the army to a standstill.

While it is certainly true that Anti-Federalists at the time the Constitution was being debated saw standing armies as threats to freedom, it is also true that they did not see the proper remedy as an armed citizenry ready to resist.  Anti-Federalists (unaccountably, perhaps, to some gun advocates today) did not think an armed showdown between the army and the people was desirable.  What they wanted was not to have a standing army at all.  Several numbers of the Federalist Papers are devoted to arguing that a standing army can be safely constrained without resort to armed force.  The entries are longer, so I will paraphrase, rather than quoting directly.

The discussion begins in Federalist 24.  Here Hamilton takes the perspective of a hypothetical stranger, visiting the US and listening to the outcry against standing armies.  This stranger, Hamilton says, "would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature."  Hamilton then goes on to point out that, although the President commands the army, only Congress has the authority to create an army in the first place.  He appears to see this, in itself, as a sufficient safeguard, as it was said at the time, putting the sword and the purse in separate hands.  Thus, he seems to be arguing that the real danger is not in standing armies, but in private armies controlled by the executive, not authorized by the legislature.  (What he would think of private armies, controlled by groups of private citizens, without any public accountability is never so much as addressed).

He then goes on to propose that if this hypothetical stranger read the Constitution and realized that it actually gave the legislature sole power to create armies, he would assume that the uproar was caused because up until then, standing armies had been forbidden, either by state constitutions or the Articles of Confederation, and so people were alarmed because the US had never had a standing army before.  But this hypothetical stranger would quickly learn that only two states said that standing armies "ought not to be kept up," and that the others merely said they should not be kept without the consent of the legislature, and that the Articles of Confederation forbids standing armies to states, but not the federal government.  So, Hamilton concludes, the fuss is simply silly.  Hamilton is being a bit disingenuous here.  Since the Articles of Confederation forbade states from keeping standing armies, it hardly mattered whether state constitutions allowed them or not.  Furthermore (as he acknowledges), under the Articles of Confederation, federal troops had to be supplied by the states.  Any time the states started seeing the federal army as a threat, they could easily neutralize it by refusing to supply troops.  The parallel provision under the Constitution says that no appropriation for an army shall be for more than two years, i.e., one session of Congress.*

In Federalist 25, Hamilton makes to essentially contradictory arguments why the national defense should not be left to the states.  He argues both that they would shirk their fair share, and that to do so would lead to arms races between the states.  Both cannot happen, but it does seem likely to assume that if states had been allowed military autonomy, one or the other would have.

In Federalist 26, Hamilton expounds at greater length on the same themes as in No. 24.  He begins by pointing out that in England, during the Glorious Revolution, when England enacted its own Bill of Rights that served as a template for the states, it did not ban standing armies, but any army "unless with the consent of Parliament."  In other words, private executive armies were banned, but no restriction was placed on the legislature.  He then repeats the point made in No. 24 that with two exceptions, the states only forbid standing armies without the consent of the legislature and that those two states (Pennsylvania and North Carolina) do not actually ban standing armies but merely say that they "ought not to be kept up."**

Hamilton then goes on to the importance of the two-year limitation for appropriations:
The legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. As the spirit of party, in different degrees, must be expected to infect all political bodies, there will be, no doubt, persons in the national legislature willing enough to arraign the measures and criminate the views of the majority. The provision for the support of a military force will always be a favorable topic for declamation. As often as the question comes forward, the public attention will be roused and attracted to the subject, by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. Independent of parties in the national legislature itself, as often as the period of discussion arrived, the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.
Schemes to subvert the liberties of a great community REQUIRE TIME to mature them for execution. An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose, not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. Is it probable that such a combination would exist at all? Is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? Is it presumable, that every man, the instant he took his seat in the national Senate or House of Representatives, would commence a traitor to his constituents and to his country? Can it be supposed that there would not be found one man, discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? If such presumptions can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person.
If such suppositions could even be reasonably made, still the concealment of the design, for any duration, would be impracticable. It would be announced, by the very circumstance of augmenting the army to so great an extent in time of profound peace. What colorable reason could be assigned, in a country so situated, for such vast augmentations of the military force? It is impossible that the people could be long deceived; and the destruction of the project, and of the projectors, would quickly follow the discovery.
It has been said that the provision which limits the appropriation of money for the support of an army to the period of two years would be unavailing, because the Executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature. But the question again recurs, upon what pretense could he be put in possession of a force of that magnitude in time of peace? If we suppose it to have been created in consequence of some domestic insurrection or foreign war, then it becomes a case not within the principles of the objection; for this is levelled against the power of keeping up troops in time of peace. Few persons will be so visionary as seriously to contend that military forces ought not to be raised to quell a rebellion or resist an invasion; and if the defense of the community under such circumstances should make it necessary to have an army so numerous as to hazard its liberty, this is one of those calamaties for which there is neither preventative nor cure. It cannot be provided against by any possible form of government; it might even result from a simple league offensive and defensive, if it should ever be necessary for the confederates or allies to form an army for common defense.
All right then, once again, let us unpack what Hamilton is saying.  He is arguing that because no appropriation for an army can be for more than two years, after each election Congress will have to reconsider whether the army it has funded is worth keeping and either continue or disband it.   He further argues that, since any plan to establish a military dictatorship will take time, there should be an intervening election.  If the army is larger than appropriate, someone will point out the danger, and the people and states will elect a new Congress that will disband it well before it can actually stage a coup.  Notice once again, that he considers raising an army to be just as legitimate to quell a rebellion as to resist and invasion, and that if the only way to defeat an invasion or insurrection is with an army large enough to threaten liberty, it is an evil that cannot be guarded against.  So apparently he does not consider a rebellion on such a scale as presumptive proof that liberty is already in danger, or that a rebellion on such a scale is necessarily a defense of liberty.

Of course, I can imagine today's insurrectionists dismissing such arguments as outdated.  We already have an army large enough to menace liberty; no one (including the insurrectionists themselves) seriously considers disbanding it; our military has become an interest group capable of defending itself, not just by force, but within the political process.  Clearly, then, the safeguards Hamilton proposed have already failed, and recourse to force is the only way to prevent our government from exercising its inherent tendency to establish a dictatorship.

Well, in fact, although the Federalist Papers condemn "insurrection," "rebellion" and "sedition," the do three times affirm the right of revolution, even against the new government being formed.  The obvious question, then, is how one knows the difference.  The Federalist Papers never say.  However, I believe they contain a clue, one that should give insurrectionists pause.  That will be the topic I discuss next.

The Federalist Papers Condemn Armed Rebellion

Supporters of the insurrectionist school of the Second Amendment do not quote the Constitution Article I, Section 8, Clauses 15 and 16, giving Congress partial authority over the militia.  Nor do they quote the Constitutional Convention on the subject, which consists of a debate whether Congress or the states should have ultimate authority over the militia.  What they do like to quote are the Federalist Papers, which do, indeed, affirm the right of revolution three times.  But they also regularly condemn "insurrection," "rebellion," or "sedition" as evils to be suppressed.

First, the Federalist Papers on the danger of insurrection, rebellion or sedition, and the need to suppress them:

Federalist Paper 21 lists among the defects of the Articles of Confederation that it does not allow for outside assistance against domestic rebellions:
The want of a mutual guaranty of the State governments is another capital imperfection in the federal plan. There is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations. The want of a guaranty, though it might in its consequences endanger the Union, does not so immediately attack its existence as the want of a constitutional sanction to its laws.
Without a guaranty the assistance to be derived from the Union in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions, must be renounced. Usurpation may rear its crest in each State, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret. A successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the Union to the friends and supporters of the government. The tempestuous situation from which Massachusetts has scarcely emerged [Shays Rebellion], evinces that dangers of this kind are not merely speculative. Who can determine what might have been the issue of her late convulsions, if the malcontents had been headed by a Caesar or by a Cromwell? Who can predict what effect a despotism, established in Massachusetts, would have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York?
This seems like an unduly harsh description of debt-strapped farmers resisting dispossession, but it does make a very clear point.  The Founding Fathers did not share a basic assumption of today's insurrectionists.  They did not assume that government was the sole threat to liberty, and that there could never be a threat from people offering armed rebellion.

Federalist Paper 27 argues that there will be no need to fear that the federal government will have to be administered by military force.  Among its reasons, it argues that it is a government that does not have the normal bureaucratic mechanism for governing (which the federal government did not have under the Articles of Confederation), but does have an army will be constantly tempted to govern by military force. The Letter also says that:
The hope of impunity is a strong incitement to sedition; the dread of punishment, a proportionably strong discouragement to it. Will not the government of the Union, which, if possessed of a due degree of power, can call to its aid the collective resources of the whole Confederacy, be more likely to repress the FORMER sentiment and to inspire the LATTER, than that of a single State, which can only command the resources within itself? A turbulent faction in a State may easily suppose itself able to contend with the friends to the government in that State; but it can hardly be so infatuated as to imagine itself a match for the combined efforts of the Union. If this reflection be just, there is less danger of resistance from irregular combinations of individuals to the authority of the Confederacy than to that of a single member
This, incidentally, was not intended to condemn a defect, as today's insurrectionists might expect.  It was intended to commend a strong central government as a good deterrent to political violence.

Federalist Paper 28 goes on to address this subject at some length:
THAT there may happen cases in which the national government may be necessitated to resort to force, cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction.

Should such emergencies at any time happen under the national government, there could be no remedy but force. The means to be employed must be proportioned to the extent of the mischief. If it should be a slight commotion in a small part of a State, the militia of the residue would be adequate to its suppression; and the national presumption is that they would be ready to do their duty. An insurrection, whatever may be its immediate cause, eventually endangers all government. Regard to the public peace, if not to the rights of the Union, would engage the citizens to whom the contagion had not communicated itself to oppose the insurgents; and if the general government should be found in practice conducive to the prosperity and felicity of the people, it were irrational to believe that they would be disinclined to its support.

If, on the contrary, the insurrection should pervade a whole State, or a principal part of it, the employment of a different kind of force might become unavoidable. It appears that Massachusetts found it necessary to raise troops for repressing the disorders within that State; that Pennsylvania, from the mere apprehension of commotions among a part of her citizens, has thought proper to have recourse to the same measure. Suppose the State of New York had been inclined to re-establish her lost jurisdiction over the inhabitants of Vermont, could she have hoped for success in such an enterprise from the efforts of the militia alone? Would she not have been compelled to raise and to maintain a more regular force for the execution of her design? If it must then be admitted that the necessity of recurring to a force different from the militia, in cases of this extraordinary nature, is applicable to the State governments themselves, why should the possibility, that the national government might be under a like necessity, in similar extremities, be made an objection to its existence? Is it not surprising that men who declare an attachment to the Union in the abstract, should urge as an objection to the proposed Constitution what applies with tenfold weight to the plan for which they contend; and what, as far as it has any foundation in truth, is an inevitable consequence of civil society upon an enlarged scale? Who would not prefer that possibility to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics?
It would be hard to find viewpoint further removed from Jefferson's famous remark that the tree of liberty must be periodically refreshed by the blood of patriots and tyrants!  While Jefferson sees occasional (or not so occasional) insurrections as a good thing that keeps government honest, Hamilton such insurrections as "the continual scourge[ ] of petty republics."  And, it must be emphasized, Hamilton's was decidedly the majority view.

Well, one may say, that's Hamilton, who's skepticism about the people's ability to rule themselves was well-known.  But Madion says much the same in Federalist Paper 43.  After noting the federal government's uncontroversial power to protect states against invasion, he adds:
Protection against domestic violence is added with equal propriety. It has been remarked, that even among the Swiss cantons, which, properly speaking, are not under one government, provision is made for this object; and the history of that league informs us that mutual aid is frequently claimed and afforded; and as well by the most democratic, as the other cantons. A recent and well-known event among ourselves has warned us to be prepared for emergencies of a like nature. [Referring to Shays Rebellion].  At first view, it might seem not to square with the republican theory, to suppose, either that a majority have not the right, or that a minority will have the force, to subvert a government; and consequently, that the federal interposition can never be required, but when it would be improper. But theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations, for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State; and if the authority of the State ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the State authority? Besides, there are certain parts of the State constitutions which are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other. Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent the necessity of exerting it.
Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the sword? May not a more compact and advantageous position turn the scale on the same side, against a superior number so situated as to be less capable of a prompt and collected exertion of its strength? Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election! May it not happen, in fine, that the minority of CITIZENS may become a majority of PERSONS, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the State has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of the States, who, during the calm of regular government, are sunk below the level of men [i.e., slaves]; but who, in the tempestuous scenes of civil violence, may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves. In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends. Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of mankind! Should it be asked, what is to be the redress for an insurrection pervading all the States, and comprising a superiority of the entire force, though not a constitutional right? the answer must be, that such a case, as it would be without the compass of human remedies, so it is fortunately not within the compass of human probability; and that it is a sufficient recommendation of the federal Constitution, that it diminishes the risk of a calamity for which no possible constitution can provide a cure. Among the advantages of a confederate republic enumerated by Montesquieu, an important one is, "that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. ''
Let us unpack this a bit.  " Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government."  Apparently Madison believes that federal intervention to suppress an insurrection against a state government can be appropriate even when the number of people supporting it is roughly comparable the the number opposing.  "Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election!"  Madison is clearly saying that a minority of the population, if it has superior military training and organization, may prevail over the majority by force.  Apparently he does not share the implicit view of today's insurrectionists that only government can be a threat to freedom, and that people who offer armed resistance to government are necessarily pure of heart.  In fact, he thinks a minority willing to resort to violence might seize power by force and oppress the majority.  He is also willing to suppress insurrections by a majority disenfranchised by property restrictions on the vote, or by slaves, a viewpoint even the rest of us might find offensive.  He even believes that "an insurrection pervading all the States, and comprising a superiority of the entire force" may still not be "a constitutional right," but an evil beyond remedy, though fortunately unlikely to happen.  (Admittedly, he also seems to imply here that sometimes such a rebellion might be "a constitutional right."  He makes not attempt to determine when it would or would not be so).

Next:  How the Federalist Papers propose to curb the dangers of a standing army without the resort to armed force.

Saturday, May 4, 2013

What Is the Militia, Anyhow?

So, back to the Second Amendment and whether it guarantees a right of armed rebellion.  For starters, I really need to set forth a definition of what the "militia" is.  I have noticed that this is a source of serious confusion when the topic is debated.  The Second Amendment guy will argue that "militia" does not refer to regular troops, but to every man and his gun.  "Well-regulated" does not mean regulated by the government, but self-regulated, i.e., knowing how to use guns.  I respond by pointing out the following provisions in the US Constitution:

Article I, Section 8, Congress shall have the power:
Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Typically I meet with one of two angry reactions.  One is to say that I am interpreting the Second Amendment to refer to government troops, not private citizens.  The other is to say that it is precisely because the government has such a military that private citizens must be allowed to own guns -- to resist it.

But this takes a mistaken view of what the militia is.  It starts out with the assumption that because the militia did not refer to regular troops, it must necessarily refer to every man and his gun with no formal military structure.  When I offer the above quotes (to say nothing of the discussions at the Constitutional Convention), gun rights people assume that militia does mean regular troops and therefore that people outside the militia have the right to own guns in order to resist the militia.  Unstated here is the assumption that there are civilians with guns and there are regular troops, that these are the only options, so that "militia" must refer to either one or the other.  That assumption may be accurate in the US today, but it was not accurate in the 18th Century.

In fact, in the 18th Century, "militia" referred to a reserve military force that did, indeed, consist of every man and his gun.  However, this militia was subject to military discipline.  Its members lives as civilians most of the time, but periodically reported for training and drill.  When they reported for training and drill, they formed into military companies, had officers (usually elected by the rank and file), and were subject to court martial and military penalties for breaches of discipline.  During military emergencies (such as invasion, Indian attack, insurrection, etc), the militia would be called up by their government and operate under the command of their government.  Israel and Switzerland still have such a system to this day.  Such a system guarantees that the military cannot oppress the citizens because the military is the citizens.*

So why don't we have such a system today?  Quite simply, because most people don't want it.  Reporting periodically for militia drill and being called up in case of emergency was burdensome.  Militia discipline was generally allowed to lapse because it was unpopular.  The meaning of the Second Amendment is vague, but the reference to "a well-regulated militia" appears to suggest that it is in some way related to the sort of militia forces that existed in the 18th Century and do not exist today.  What it means in the absence of such forces is anybody's guess.

Disclosure:  I have been too lazy to do any serious research on 18th Century militia laws.  (The fact that such laws existed at all refutes the argument that "well-regulated" had nothing to do with government control).  I can offer this Wikipedia link for some basics.

*Non-citizens, like slaves or Indians in the US at the time of the Revolution, or Palestinians on the West Bank today, are a different matter.

One Theory on What is Wrong with our System

I do not believe this is all that is wrong with our system, but I believe it is a part.

Quite simply, public policy is not a zero sum game.  But partisan politics is.

Obviously in public policy, groups compete for advantage and there will be winners and losers.  But there are plenty of things that hurt everyone.  Say, for instance, starting a stupid, senseless war that drags on and on with no prospect of victory in sight.  Or allowing a weakened economy to collapse.  And there are things that benefit all of us, like effective law enforcement, good infrastructure, and a good education system.  Even where there are winners and losers, there are ways to widen the benefits, or soften the blow.  So public policy leaves plenty of room for cooperation and compromise.

But partisan politics really is a zero sum game.  Every office won by one party is necessarily an office lost by the other.  Perhaps in a multi-party system, the participants can make complex coalitions so that who gains and who loses in any election is not so simple.  But given the binary nature of US politics, there is no other way to see it.  The parties really do compete on a zero sum basis for all available offices.

Most of the time, however, the parties have managed not to think in such zero sum terms because they still saw the objective of partisan politics as public policy.  Even the most corrupt part of our political system, the drawing and re-drawing of election districts was not seen in purely zero sum terms, at least by incumbents.  Rather, they competed on zero sum terms with outsiders to protect incumbent seats, regardless of party.

But somewhere along the line, Republicans really have started seeing partisan politics as an end in themselves and not even remotely as a means of public policy.  They have concluded that defeating the Democrats ranks above any concern for the public good.  They have concluded that so long as they are out of power, any harm they cause will be blamed on the Democratic incumbent, so they should not hesitate to harm the country if it will win elections.

Why this should be so is more controversial.  Mike Lofgren believes that the more dysfunctional Republicans can make government, the more votes they can get for the party that is against government, with the presumed end goal of repealing the New Deal.  Others believe the Republican Party has been taken over by the right wing media that really prefer to stoke outrage over Democrats running things than to win.  A recent survey of the Tea Party (too lazy to find link) suggests that (1) the Tea Party is currently a small majority of the Republican Party and a large majority of its most active and organized members, (2) it is thinking the long game.  The changes it wants are too radical to be politically palatable now; its primary goal is to shift the Overton Window.  Another theory, which I personally holds, is that this is about power, plain, pure and simple.  Republicans have developed a sense of entitlement to power and are unwilling to accept any Democrat in office as legitimate.  They are behaving like an insanely jealous husband -- If we can't govern this country, then no one will.

I am not so naive as to believe that there was ever a golden age in which the parties thought solely about the public good, and that disagreements were purely debates on how to achieve it, untainted by the personal desire for power.  Human nature does not work that way.  But human nature is capable of enough civic virtue that public policy at least enters into the equation and domestic politics is not treated as a zero sum game.