Another (Scandal) Bites the Dust

So, it appears that the IRS scandal is a big dud.  Besides applying extra scrutiny to applications for tax exempt status containing the words "Tea Party," "Patriot," and "9-12," it also targeted groups with the words "progressive," "progress," "blue" and "occupy," and names containing reference to open source software.  The reason it targeted groups saying they were dedicated to open source software was that some of these groups are really commercial and improperly seeking tax exempt status.  It is quite probable that more conservative than liberal organizations received extra scrutiny, but this was not because of ideological bias, but simply because more conservative than liberal organizations were applying.

Still, it would be false to say that there is no problem at all.  A commenter to Kevin Drum explains:

I worked in the field for several years, and while it'd be pretty easy to convince me that some of these organizations deserve closer scrutiny, the IRS' "screening" has been wildly disproportionate. Groups that are unquestionably above board have been in limbo for years, unable to start fundraising in earnest, because the IRS refuses to finally approve or reject their application for 501(c)3 status.

He goes on to say that the Tea Party is probably experiencing the same problem -- some of its applications for tax exempt status are legitimate; some are not.  The problem is that office in charge of deciding which organizations are legitimate lacks the resources to address the issue properly, so they cast a very broad net and unduly delay many organizations whose applications are legitimate.  In other words, just because the IRS was not being partisan does not mean that all is well.  It means that the problem is structural -- the IRS is poorly equipped to give proper and timely scrutiny to questionable applications.

I would also add, the problem is also with the laws the IRS is enforcing.  A 501(c)(4) organization is a "social welfare" organization.  Although not allowed to endorse candidates or engage in openly partisan activities, it may engage in "civic," "educational," or "issue" activities that look very much like lobbying or grass roots lobbying.  Some of them are simply PAC's (political action committees) under a very thin veneer of civic action.  Nor is this limited to the right -- moveon.org is a 501(c)(4) organization, as are many others. Drawing the line between "educational" or "issues" advocacy, which is allowed by the tax code, and partisan or candidate activity which is not, is going to mean making hopelessly fine distinctions that make no sense to anyone.  Any attempt to enforce it will necessarily mean relentless and heavy-handed scrutiny.  The other alternative, of course, is to give up and not attempt to enforce the rule.

It would be nice if the initial impression that the IRS was violating the rights of right wingers led to some sort of impetus for reform.  Maybe there should be more resources devoted to enforcement to allow a less heavy-handed approach.  Or some sort of guidance should be offered.  Or maybe (God forbid!) the law should be changed to eliminate the distinction between partisan and issue-oriented.

Oh, well.  I can dream, can't I?

Why I Favor Violating the Rights of Right Wingers

Well, what I had hoped for has come to pass.  The Obama Administration has infringed on the liberties of right wingers.  I have reluctantly concluded that there is no other way to get civil liberties onto the radar screen.  All presidents have a tendency to want to expand their own power.  This tendency is trans-partisan and should not be too surprising.  Indeed, it was one of the original assumptions when the Constitution was first drafted, that the executive (as well as the other branches) would seek to aggrandize its power.  It was also assumed that the other branches would be equally protective of their own prerogatives and therefore hold each other in check.  There were two things the Founding Fathers failed to take into account.  One was political parties.  If the same party controlled both the Presidency and Congress, members might be more interested in pursuing partisan advantage than in maintaining institutional prerogatives.  One may say that this is short-sighted, that political power alternates between parties quite regularly, and that Congress should not want the President to have unchecked power once the other party comes to power.  But, alas, people tend to be short-sighted on these things.  The other, more baleful thing they failed to foresee was the national security state, with interests of its own apart from elective government, and with its ability to play on people's fears of foreign threats.

Ever since 9-11 (and possibly even before) the dynamic worked as follows:  Every President, regardless of party, wants to expand the government's eavesdropping powers. If a Republican holds the White House and Republicans control Congress, they will happily give the President unlimited power, confident that he will never abuse it.  If the Democrats control Congress, regardless of the party in the White House, they will not dare check the President's eavesdropping powers for fear of being labeled soft on terrorism.  Ah, but if a Democrat holds the White House and Republicans control Congress, right wingers will fear they might be targets of surveillance and act to block it.  That was what happened after Timothy McVeigh blew up the Oklahoma City Federal Building.  Bill Clinton wanted expanded surveillance powers to watch right wing private armies.  Right wingers freaked out, fearing that more mainstream organizations would be next, and blocked the expansion.

Unfortunately, this dynamic has failed until now.  Two things (I suspect) have kept conservatives from freaking out over the massive powers of surveillance that the government has.  One was that they were started by a Republican and therefore must be all right.  The other is that the assumption thus far has always been that these powers will only be directed at someone else, and so conservatives have nothing to fear.  Now several things have happened to make them less confident.

One is that the IRS has apparently been singling out "Tea Party," Patriot" and other conservative names for extra scrutiny when groups apply for tax exempt status under Regulation 501(c)(4).  As I understand it 501(c)(4) is a loophole in the tax code that allows "civic leagues and other corporations operated exclusively for the promotion of "social welfare", such as civics and civics issues" to receive tax exempt status and does not have to report donors.  While some such organizations are genuinely devoted to "charitable, educational, or recreational purposes," others are simply lobbying organizations by another name.  While organizations that support a particular candidate or party are not tax exempt, "issues" advocacy groups can be.  Some of the largest and most powerful lobbying and think tank organizations in the country are tax exempt under 501(c)(4).  Apparently with the founding of the Tea Party, the IRS experienced a huge flood of applications for such status and started singling ones with Tea Party sorts of names out for special scrutiny to see if they were really political organizations in disguise.  This was despite having approved tax exempt status for many larger and more powerful advocacy organizations, left and right, in the past.  So, was this proper or improper, persecution of conservatives, or an attempt to prevent abuse of the tax code.  I don't think we have the information yet to know. There is no evidence yet that the IRS has done anything illegal, but ample evidence that the law does not give the IRS enough guidance how to handle such requests.

Next, it turned out the Obama Administration obtained the phone records, first of an AP reporter and then of  a Fox reporter, and their contacts.  Both reporters appear to have published leaks that the Administration had legitimate national security reasons to want plugged.  In both cases, the Administration obtained a warrant to search for the reporter's phone records, so no laws were broken.  But to prosecute a reporter for publishing a leak, as well as the leaker who made it, is simply not done.  And, in fact, the Obama Administration did not prosecute the reporter, but did obtain a warrant by indicating (almost certainly falsely) that it might.  In other words, although the Administration did not technically break the law, it stretched it to the extreme fraying point.  Also, given that it treated the AP reporter and the Fox reporter the same way, it seems reasonable to assume that a general war on leaks, not partisan animus, was the motive.

My impression is that right wingers were inclined to applaud when the Obama Administration stretched the law to get telephone records on the AP reporter, but a Fox reporter was a different matter altogether.  Similarly, Democrats are eager to investigate the IRS targeting of the Tea Party, probably at least in hopes of expanding the investigation to earlier possible improper targeting of liberal groups.  My impression, frankly, is that right wingers would be entirely happy to pass a law broadly expanding the government's power to subpoena reporters' telephone records, so long as Fox News, the Washington Times, the National Review, the Weekly Standard, talk radio, and other conservative outlets are exempted.  They might also be quite happy to make a rule that conservative advocacy group could have tax exempt status, but liberal ones could not.  But that isn't going to happen.  Obvious ideological targeting will neither pass constitutional muster nor be acceptable to the broader public.  So if right wingers want to protect themselves from intrusive government, they will have no choice but to protect others as an accidental side effect.

It was against this backdrop that revelations about NSA information collecting on telephone and online information were made.  In other words, the right was primed to be suspicious and fear that after all, they and not just terrorists might be targets.  Kevin Drum, in a column that (alas) I can no longer find, comments that any unchecked surveillance program is dangerous, and that just because there is no evidence yet that the NSA has been data mining Occupy Wall Street does not prevent some future administration from doing so.  But I say, if you want this thing brought under control, forget about Occupy Wall Street.  Point out that it could be used to data mine records of the Tea Party.  Then we will get some action!

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.

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.

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.

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.

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.