Thursday, January 30, 2014

Another Debt Ceiling Increase, Another Opportunity for Crisis

So, with the need to raise the debt ceiling looming, Republicans have a big question to ask -- should they provoke yet another crisis by once again demanding a ransom?  The strategy served them reasonably well the first time, but the last two times it has not gone so well for them.  The question, then, is why not.  I can see two possible answers.

The first one, to the more procedurally minded, is the first debt ceiling crisis was stand-alone, while the other two had too many distractions.  Raising the debt ceiling in and of itself is unpopular, and refusal to raise it tends to poll well.  Other Republican tactics to get there way, not so much.  So the early 2013 debt ceiling crisis was sandwiched in between tax increase negotiations and sequester negotiations and tended to get overlooked in the shuffle.  The later 2013 debt ceiling crisis happened at the same time as the government shutdown, so people tended not to distinguish too clearly between them.  (That was why I favored a shutdown).  But this next debt ceiling crisis, like the first one, will be stand-alone, so there will be no danger of people conflating it with something else.  And the thought that government can raise its debt ceiling at will is just not popular.

The second, for more substantive types, is that concessions Republicans demand in return for raising the debt ceiling tend to be highly unpopular.  This makes eminent sense.  After all, if Republicans want to do something popular, they have no need to take the economy hostage to get it done; it can easily be achieved by the usual legislative process.  When Republicans resort to extraordinary measures, it means they are trying to pass something that stands no chance by ordinary measures.  The first time around, public opinion polls showed raising the debt ceiling was unpopular, but as the message slowly sank in just how dangerous refusal to raise it could be, public opinion began to noticeably shift.  Every time Democrats and pundits warn of the dangers of refusing to raise the debt ceiling, Republicans dismiss it as mere alarmism.  What they may not realize is that the more unpopular the measure they are proposing, the more credible the claims of catastrophe if the debt ceiling is not raised.  First of all, if Republicans demand something very unpopular, people are more inclined to think the worst of them and believe they really would threaten to bring disaster on the economy.  Second, the more unpopular the measure, the more drastic the threat needed to get it passed.  So if Republicans demand something really outrageous, like turning Medicare into a voucher system or Social Security into a 401-k, it seems credible that it would take some pretty drastic threats to get such measures passed.

Republicans may very well think they have the substantive advantage this time.  Obamacare is uniquely unpopular right now, so Republicans may very well see holding the debt ceiling hostage to repealing it as a winning issue.  Alternately, they can instead demand ending risk corridors which backstop insurance companies that do not have enough young people enrolled, in hopes of inducing a death spiral of ever sicker enrollees and higher premiums.  But neither approach is likely to be as successful as Republicans think. Losers under Obamacare have gotten more attention than winners because people having their policies cancelled is more news-worthy than people getting insurance.  But if Republicans seriously attempt to repeal Obamacare now, there will be a huge outcry from people whose insurance will be threatened as a result, and suddenly the winners will get a lot more attention.  Alternately, Republicans think denouncing risk corridors as a "bailout" for insurance companies will be popular, but Democrats need only paint such a move as an attempt to raise premiums (which it is) and it will quickly prove  not to be a winning issue.

In short, I don't think yet another debt ceiling crisis will go well for Republicans, in either procedural or substantive terms.

Sunday, January 5, 2014

The Ku Klux Klan, our Most Successful Armed Rebellion

No discussion of guns and the right of armed rebellion would be complete without a look at the only genuinely successful example of such an insurrection in US history -- the Ku Klux Klan.  This is, after all, the only time in our history in which irregular resistance of the every man and his gun type successfully defeated the US military and persuaded it to back down.

I can imagine at least some defenders of a Second Amendment right of armed rebellion taking offense at this statement.  Am I calling them racists or comparing them with the Klan?  The answer is no, although the fact that the Klan is the only example of a successful rebellion of the kind they romanticize should cast some doubts on their romanticization or irregular rebellion.  At the very least, it should cast doubts on the underlying assumption that everyone who offers irregular resistance to the federal government is necessarily a good guy.  Plenty of bad guys offer armed resistance as well.  But that is not my primary focus here.  My primary focus is two-fold.

First of all, the Klan had its defenders, both among contemporaries and later historians, particularly the Dunning School in the early 20th Century.  But if any of the Klan's defenders justified its actions by arguing that members were simply exercising their Second Amendment rights of armed rebellion, then I, for one, have never seen that argument.  Most of the Klan's defenders have spoken more in terms of necessity, self defense, and having no other recourse.  As a typical example, "When a people find themselves persecuted by aliens under legal forms, they will invent some means outside of the law for protecting themselves; such experience will typically lead to a weakening of respect for law and a return to more primitive methods of justice."  So said Walter Fleming, a Dunning School historian of the early 20th Century. There are numerous similar examples, but I do not care to go to the work of hunting them down.  All defend the Klan's actions by some sort of appeal to necessity.  None suggest that such actions were authorized (or at least facilitated) by a Second Amendment right to keep and bear arms.  And all acknowledge that the Klan had some downsides, that its violence got out of hand and exceeded what was strictly necessary for self-defense, but sometimes lapsed into settling personal scores.  Naturally, today's Second Amendment insurrectionists never even acknowledge that such a thing could happen.

Second, one can ignore the Klan's racism and look at it in solely tactical terms as what appears to have the best chance of success engaging in armed rebellion against the US government.*  I see the following factors as significant:

The Klan was a highly popular movement.  It has been estimated that in some areas, as many as two-thirds of all while men participated.  And certainly few doubt that most white southerners supported the Klan's ends, though not necessarily its means.  Again, this casts doubts on the inherent virtue of people who engage in armed rebellion against the US government, or of the public at all.  But otherwise insurrectionist would presumably like this factor.  It means that extremely widespread armed opposition can defeat the federal government.  Insurrectionists might not like my other conclusions as much.

The Klan had limited objectives.  It was not seeking to overthrow the US government, or to secede again.  In some cases, it sought to overthrow Reconstruction state governments, but most of the time it just wanted to end federal occupation and direction of their states.  It seems most unlikely that any larger objective would have succeeded.

The Klan had many powerful political allies in the North.  The northern Democratic Party as a whole had no use for the Reconstruction, occupation of the South, or racial equality.  They simply wanted to defeat secession, bring the Southern states back in, and wash their hands of the whole matter.  This outlook was widely held among the Northern Democratic public and in Congress.  Democrats in Congress either denied that any reign of terror was going on, or insisted that black people brought it on themselves with their "insolence."  They saw federal occupation of the South as illegitimate and what happened there as a matter of states rights.  Even many Republicans regarded a powerful federal government as inherently oppressive and wanted out.  Once again, it is far from clear that the Klan would have succeeded without strong political allies in positions of power.

The Klan hit soft targets.  The Klan's racism can be ignored in a purely tactical discussion of its success, but I do not see how its choice of soft targets can be.  The Klan did not take on the Union Army directly.  It terrorized black people and white Republicans (northern and southern).  In this, it was fairly typical of guerrilla resistance movements in general, which begin by hitting soft targets, and only move up to harder ones as they become stronger.  And in the case of the Klan, its choice of targets was closely related to its strong political supporters.  Most Northerners did not care if the Klan killed black people, or even white northern Republicans.  But if it had taken on the Union Army directly, Northern opinion would have been outraged by this act of open rebellion and have supported a severe crackdown.

So, if the Klan is to be taken as typical, it suggests four factors that would make armed rebellion against the federal government most likely to succeed.  The movement will need strong popular support, at least in a given region.  It will have a better chance of success if its objective are less ambitious than the overthrow of the federal government.  Its chances are better if it does not limit itself to military means, but has plenty of allies in the corridors of power.  And at least at the outset, it will probably not be strong enough to take on the US military directly and will have to start with soft targets.  And this last should be particularly troubling to "Patriots" who see themselves as the good guys in such a struggle.  Choosing soft targets doesn't make one look like good guys, but it is the most effective way to avoid being slaughtered.

Saturday, January 4, 2014

Armed Rebellion and Declarations of Secession

Ordinances of secession were brief and gave little detail.  Some Southern states also passed Resolutions or Declarations of Secession that set forth their reasons in greater detail, although a majority apparently did not.

Georgia did not give any general theory in favor of secession on general principle, but identified specific grievances against the North.  In terms of Constitutional grievances, there were basically three:

  • The Constitution did not give states any power to exclude slavery from the territories, yet they had been doing it since the Missouri Compromise in 1820, and the Republican Party was dedicated to preventing any further expansion of slavery whatever.*
  • States were required under the Constitution (Article IV, Section 2, although the Declaration did not say so) to extradite criminal fugitives from other states, yet the Northern states did not extradite their abolitionists.
  • The same article required the extradition of fugitive slaves, and the North did not comply with that provision either.
Nothing in the Declaration indicated that the Constitution authorized states to secede, let alone that it authorized individuals to engage in armed resistance.

Mississippi does not mention the Constitution at all,except to say that hostility to slavery predates the Constitution and can be found in the Northwest Ordinance.  It then lists all the various ways Northern states have shown their hostility to slavery, up to and including electing a Republican President.  "There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union, whose principles had been subverted to work out our ruin." And furthermore, "Utter subjugation awaits us in the Union, if we should consent longer to remain in it. It is not a matter of choice, but of necessity. We must either submit to degradation, and to the loss of property worth four billions of money, or we must secede from the Union framed by our fathers, to secure this as well as every other species of property. For far less cause than this, our fathers separated from the Crown of England."  Nothing in this Declaration suggests that the Constitution allows either secession or armed rebellion.

South Carolina was quite a different matter and was at some pains to argue that secession was constitutional. It began with a statement that the federal government had violated the constitutional limits of its power.  It then went back to the American revolution.  The Declaration of Independence declared the colonies to be "FREE AND INDEPENDENT STATES; and that, as free and independent States, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do."  The Articles of Confederation provided "that each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not, by this Confederation, expressly delegated to the United States in Congress assembled."  The treaty of independence recognized each state by name as "free, sovereign, and independent states."  It emphasized the Constitution as "Articles of Union" that all states were free to adopt or reject and as creating a federal government as their "agent."  It also emphasized the limited powers of the federal government and maintained that the Constitution is a "compact," i.e., a contract that all parties are free to withdraw from if the other parties do not keep the bargain.  Unlike Georgia and Mississippi, South Carolina did cite specific clauses of the Constitution as having been broken, i.e., the criminal extradition clause and the Fugitive Slave Clause. But nowhere does the South Carolina Declaration cite the Second Amendment, either directly, or by saying that the right to keep and bear arms implies a right of armed rebellion.

Texas differs from the other states in that it really was (uncontroversially) an independent republic that voluntarily surrendered its independence to join the United States.  As a result, Texas appealed less to any possible constitutional right of secession than its history as an independent republic that voluntarily joined the US and should therefore be free to go.

Florida did not publish a formal Declaration of Session, but did prepare one that was not published.  Its only reference to the Constitution is to complaint that Northern states are not meeting their constitutional obligations under the Fugitive Slave Clause and that they are sorry to withdraw from any Northern brethren who have kept their constitutional obligations.

So, in short, of eleven states that seceded, four published formal declarations giving the reasons for their secession, and Florida had an unpublished declaration.  Of all of these, only South Carolina made a serious argument that secession was constitutional, and none referred to the Second Amendment, the right to keep and bear arms, or a constitutional right of armed revolution.  I do not intend to explore in great detail other Confederate defenses of secession as constitutional, other than that I have read some, and most follow the essential reasoning of the South Carolina Declaration -- that the Federal Union is a voluntary association of states that anyone may withdraw from at will.  If anyone claimed to be exercising Second Amendment rights, I certainly am not aware of it.  More to the point, if there had been any such claim, someone the Second Amendment movement would undoubtedly have cited it.  That there has not been such a citation I take as proof that none exists.

*There was the awkward business of the Northwest Ordinance, which forbade slavery north of the Ohio and was adopted by the very first Congress under the Constitution. It spawned a veritable cottage industry attempting to explain it away.

Armed Rebellion and the Rubber Hits the Road: The Civil War and Ordinances of Secession

So, after a period of distraction, I am back to my old subject, the Second Amendment and armed rebellion. I was initially inspired to post on the subject by David Frum in his own discussion of the subject.  In past posts, I addressed how the subject was discussed at the Constitutional Convention, how the Federalist Papers condemned armed rebellion, how they proposed to deal with the dangers of a standing army without armed rebellion, and even when they affirmed the right of revolution, it was in the context of state militias commanded by state governments, not every man and his gun.  Finally, I addressed the Anti-Federalists' lack of enthusiasm for armed rebellion and how the Founding Fathers reacted to actual armed rebellion against their government.

I should probably while I am at it throw in a post on the Mormon Rebellion of the 1850's and carefully study all the pronouncements of the day, to see if even one of them suggests that the Mormons' actions were justified by the Second Amendment.  But, to be honest, it seems like more trouble than it is worth, so I will stick to the greatest acts of armed resistance to the US government, the Civil War and the Ku Klux Klan afterward.

When the various states seceded from the US, they published Ordinances of Secession.  These Ordinances are not much, simply statements that they are seceding, but they are at least a starting point.
  • South Carolina declared that its prior ratification of the US Constitution was repealed.  No theory of the right of secession is given here, but implied is that the states came into the Union voluntarily and could leave voluntarily.
  • Mississippi, not being one of the original 13 states that ratified the Constitution, cited the Constitution to release all officials from their oaths to uphold the US Constitution (required by Article I, Section 7) and said that rights under federal law remained in force to the extent not contradicted by the Ordinance.
  • Florida simply declared secession
  • Alabama attributed secession to the election of Lincoln, "by a sectional party, avowedly hostile to the domestic institutions and to the peace and security of the people of the State of Alabama, preceded by many and dangerous infractions of the constitution of the United States by many of the States and people of the Northern section" and called for a convention of the slave states to found a new union.
  • Georgia, another of the original 13 states, had much the same resolution as South Carolina.
  • Louisiana, though not one of the original 13 states, also rescinded is ordinance adopting the US Constitution in 1811 and declared all federal laws not inconsistent with secession still in effect.
  • Texas referred to the US Constitution as a "compact" that Texas had ratified in 1845 and declared that the federal government was not keeping the terms of the compact, and that Texas was therefore withdrawing.  In true Western, frontier style, it did not satisfy itself with an ordinance of secession by a convention, but submitted to ordinance to the people for referendum.
  • Virginia said that their ratification of the US Constitution stated the condition that they reserved the right to withdraw it if the powers of the federal government were "perverted to their injury and oppression."  Since the federal government's powers had been so perverted, Virginia was withdrawing.
  • Arkansas said that they had previously passed a resolution to "resist to the last extremity" any attempt to coerce a seceding state, and also that Arkansas had voluntarily adopted an action joining the union and was now voluntarily revoking it.
  • North Carolina, another of the original 13 states, said that ordinance adopting the US Constitution was withdrawn.
  • Tennessee declined to express an opinion on the "abstract doctrine of secession," but "asserting the right, as a free and independent people, to alter, reform, or abolish our form of government in such manner as we think proper, do ordain and declare that all the laws and ordinances by which the State of Tennessee became a member of the Federal Union of the United States of America are hereby abrogated and annulled."    It then released all officials from their oath to uphold the US Constitution and declared all US laws still in force to the extent not contradicted by the ordinance.
Finally, although neither Missouri nor Kentucky seceded, both apparently had ordinances of secession that were not adopted.
  • Missouri declared, "Whereas the Government of the United States, in the possession and under the control of a sectional party, has wantonly violated the compact originally made between said Government and the State of Missouri, by invading with hostile armies the soil of the State, attacking and making prisoners the militia while legally assembled under the State laws, forcibly occupying the State capitol, and attempting through the instrumentality of domestic traitors to usurp the State government, seizing and destroying private property, and murdering with fiendish malignity peaceable citizens, men, women, and children, together with other acts of atrocity, indicating a deep-settled hostility toward the people of Missouri and their institutions," it was therefore seceding.
  • Kentucky had a similar but longer declaration, declaring that the US government had exceeded its limits under the powers enumerated in the Constitution and generally denouncing the war underway as an act of despotism.
It should be noted that, with the exception of Mississippi citing Article I, Section 7 requiring state officials to take an oath to uphold the US Constitution, none of these ordinances contain any specific cites to the US Constitution. All the Ordinances are brief and none set forth any theory in detail.  Nonetheless, South Carolina, Georgia, Louisiana, Virginia and North Carolina all imply that they voluntarily entered the Union and are free to leave at will.  Texas is explicit on the subject.  Arkansas, which seceded late, only after Lincoln had started to use force, denounced that force as tyranny and used it as grounds for secession. Missouri and Kentucky did not secede, but offered Lincoln's use of force as justification for secession.  And Tennessee did not claim constitutional authorization for its action, but appealed to a natural right of revolution.

What none of these ordinances cited was a constitutional right to keep and bear arms, carrying with it an implied constitutional right of armed rebellion.