October 1, 2010

talkin’ bare armed blues (F29)

Posted by Andrew under constitutional law, Federalist | Tags: , , |
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Jeff: My problem is that your plan gives Congress control of our state militias, the very things that prevent federal tyranny.  Without them, what power do the states have if the federal government should attempt to effect by force of arms what by law or right it could never effect?

Alex: We don’t propose to disband the militia.  I’m not sure if you read the proposed document, or just the horror stories from the collection of folks that reason only so far as required to prevent honest discourse.

Jeff: The word “militia” sits there in the text, but it clearly does not refer to those bodies that have, up to now, been composed of men willing to fight for their home country, the state within which they live and work and raise families.  The “militia” of the proposed Constitution are bodies controlled by the federal Congress.  They might continue to live in their respective states,  but with whom will their loyalties abide?  The federal Congress demands their attention, and regulates their training.

Alex: It’s not like they’ll be swept up and taken to some federal brainwashing camp whereat they’ll forget all familial and community affections.  The whole nature of the militia is that they are local, and can be gathered where they already are, if need be.  They’ll still be living and working in their home country.  It stands to reason, then, that their loyalties will remain local.

Jeff: And I expect, then, that the Federalists will be sure to establish a standing army to whup up on my local militia.

Alex: But that’s where. . .

Jeff: And thus the federal power can freely ascend to tyranny. . .

Alex: Hold on, the militia. . .

Jeff: …because you will march your professional armies clear over the countryside.  I know my liberty tree cries ‘feed me Seymour,’ but its appetite is for both sides of a fight – the patriots and tyrants.  Liberty requires a credible threat to the powers that be.

Alex: Let me in here, Jeff.  That exact fear is precisely what I’m trying to address.  It is what the proposed Constitution, written by men with just your concern, intends to guard against.  In the first Article, five subsections address the federal land and naval forces, and our state-based militias.  The last of those, section 8.16, grants Congress power to organize, arm, and discipline the militia.

Jeff: Oh, great relief!  Why should that provision calm my concern?  The power to regulate our local militias is the power to do so poorly – to set them up to fail against the federal army.

Alex: And, if I may continue, section 8.15 allows Congress to call on the militias to execute laws, suppress insurrections, and repel invasions.

Jeff: You’re making me no more comfortable.

Alex: Now, you know a standing army could not march from one part of the continent to another when little emergencies require execution, suppression, or repulsion.  You know, full well, that the federal government will rely on local forces that can be whipped up and brought to action instantly and locally.  Don’t you see, then, that the federal government will have an incentive to train the militia units to the highest standard?  If a small band of troublemakers would cause damage to their neighbors and ignore duly enacted laws, the general government would be much more disposed to call up local forces to quiet the situation than to send a central army to remote wildernesses.  Further, using local militia will assure the remaining community that such needful force is against a common enemy, and not the result of federal whim. Remember your reflections after the militia responded to Mr. Shays?  “The interposition of the people themselves on the side of government has had a great effect on the opinion here.”  For all these benefits, the general government will have an interest in assuring the high quality of those militias, and will well regulate them to do so.

Jeff: And I’m supposed to just assume the federal government won’t just co-opt the militiamen into the central army?

Alex: You don’t have to assume it.  Section 8.16 lays it clearly out that the states will appoint officers to their respective militias.  Besides, we haven’t even formed an army.  But let me quote what I wrote before:

“. . .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.”

Jeff: Well and good.  I’ll take your point.  But training is not, really, all there is to it.  In our own day we’ve seen the progress of military machinery.  What inequity in force should happen if the citizens that join militias are denied the same arms available to your federal army?  What prevents Congress from disarming the militia?

Alex: Everything I’ve said should explain why Congress would never disarm the militia.  And, again, those very same, well regulated militiamen are the surest prevention to a standing army.

Jeff: Well, you need to put that in a . . .

Alex: I know, I know, a bill of rights.  I’m telling you, though, you are not going to get your way with an amendment against standing armies.  General Washington can publically praise the militias all he wants; we both know he will have his professional army too.  But I’m willing to work with you, assuring that the first Congress will propose an amendment that the militia will, indeed, be well regulated, and not a sloppy ragtag of ill-prepared and off-target amateurs.

Jeff: That will never be disarmed?

Alex: And never disarmed.  For the purpose of a well regulated militia, the people’s right to bear arms shall not be infringed.

Jeff: I still want language that emphasizes the purpose of the militia.  Look, our republican government requires that people, belonging to a state, have a unit of force that is, in the end, loyal to that state and those people.  If the federal government should ever begin to act outside the dictates of our law or reason, that force is the last protection for these states that consented to the general government.  It ought be clear, then, what these militia, and the arms we secure, are purported to protect.

Alex: Ok, fine.  A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Jeff: Alright, I’m thirsty. Fraunces Tavern?

Alex: My turn to buy.  I want to hear your thoughts on how bare a right it will be if bearing arms is, one day, akin to the mere sword today.


 

June 8, 2010

Seditions, Insurrections, and Rebellions: Federalist No. 28

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Funnily enough, right after we got done pooh-poohing Hamilton’s idealism in F27, he opens F28 with a proclamation against being overly idealistic.  He himself denigrates “those political doctors, whose sagacity disdains the admonitions of experimental instruction.”  He must have gotten some negative emails between December 25, 1787, and December 26, 1787 (the dates of F27 and F28, respectively).*

Anyway, F28 picks up on F27’s themes by addressing worries about Shay’s Rebellion and its ilk.  The rule of law in America has apparently come a long way between 1787 and 2010, as Publius is very emphatic that armed insurrections are an inevitable part of life—just like “tumours and eruptions from the natural body.”  (Ew.)  Today we are obviously far more worried about lone actors or small terrorist sleeper cells than we are about armed rebellion by a sizeable minority.  In the 1780s, though, everyone was more freaked out about a Civil War-type scenario than they were about some random person losing it and shooting up the local post office.  As events turned out, of course, these civil war worries were well-founded.

The most interesting and relevant part of F28 to us modern readers is where Publius is discussing the relationship between the federal and state governments.  In addition to the brilliant system of horizontal checks and balances among the branches of the federal government, the balance of power runs vertically in our country, too.  Hamilton’s theory is that anytime the federal government “invades the public liberty,” the state governments will be ready and waiting to jump in and stand up for the people’s rights.  That’s kinda-sorta applicable today, I guess; but historically more often it’s the federal government who has had to stand up to the states to induce them to respect the public liberty (ala the civil rights movement in the 1960s).

That aside, I wonder how Publius thought his theory would play out?  By what means, exactly, could the state governments defend their citizens against perceived encroachments of the federal government (both then and today)?  Any way besides armed rebellion?

* Publius churned out the Fed Papers a tad quicker than we are managing to blog our way through them.  [Sorry to take so long on this one, APO]

 

February 28, 2010

the farmer and the biz-man can be friends

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In the Fury of Democracy post a couple down, I wondered about the difference between an aristocratic, old wealth versus a meritocratic view of the national leader class.  A few pages after those that prompted that question, Professor Ferling gave me a word for the former: squirearchy.

And this latest section of Ferling’s A Leap in the Dark prompts another, similar question: which is the more egalitarian, Hamilton’s vision of an industrial, merchant society, or Jefferson’s collection of minimally governed self-sustaining yeomen?

One can make the case for each.  A commercial society is (kindof)  inherently egalitarian, profits are status-blind, and so on.  Self-sufficient farms are egalitarian in the sense that they allow a family to live largely off the social-status grid; one need not be connected to grow sweet potatoes.  And they are, from Ferling, “uncorrupted by the snares of capital.”

For the cons of each, here is Ferling:

Jefferson foresaw, correctly, that the world Hamilton wished to create would consist of considerable pain, including widespread exploitation of white workers, among them very young children, unspeakable urban squalor, and the emergence of a commercial and industrial plutocracy that would ravage the promise of individual liberty that had been the cornerstone of the republican ideology of the American Revolution.  However, the world that Jefferson hoped to sustain was not without pain.  It included abused slaves, who lived without hope under the most abominable circumstances, and many free persons who eked out a living from timeworn lands while paying homage to a squirearchy that monopolized political power.

In any event, it strikes me as a good American History exam question: the respective visions of Hamilton vs Jefferson, which is the more egalitarian?

 

February 23, 2010

the fury of democracy

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A few Federalist essays have described a benefit to the scope of federal elections; in quick summation: with a nation-wide pool of candidates free from local squabbles, the very best policy and governance thinkers will rise to federal office.  (Each Publius has offered the argument; Jay in F3, Madison in F10, and Hamilton in F27.)  It has been, on my first impression, a meritocracy argument. And it is, tonally, a very different argument for national leadership than another theme that Professor Ferling describes in A Leap in the Dark. In the chapters covering the Articles of Confederation and the Constitutional convention, Ferling describes the creeping fear – buyer’s remorse? – that the Nation may swing from one problematic pole (monarchy) to another (hasty democracy). Ferling describes the eagerness of many delegates “to limit democratic impulses.”

I always think it’s worth remembering the neoclassicism flowering at the end of the Enlightenment; and, more importantly, really, the historiographical context. Then, as now, students of Greek history learned that while, yes, Athenian democracy was an important human development, the institution ultimately brought Athens down because the demos couldn’t govern. By the time I reached college, the story was that the voting poloi’s livelihoods relied overwhelmingly on war – so they voted for war all the time. And they voted myopically. And with blinders. The point being, the masses were not good at governing. Our Founders had basically the same understanding of that history, which reinforced a general notion that you don’t want straight democracy.

And so, this different theme regarding the makeup of the national leader class has a slightly different feel than meritocracy. Ferling writes that most founders, forgetting that they were upstarts by Londond’s standards, regarded the post-war Congress as a bunch of scrubs, elected by unthinking populist-driven localities. I actually think Sarah Palin may be a bit of an analogy.

Also, it was interesting to read about that fear now, during the Great Recession. The policies passing through state governments, so fear-provoking to several founders, sometimes resulted in creditors losing their claim to money because of debtor-friendly relief laws. Shay’s Rebellion started as a foreclosure protest. The big deal, among nationalists startled by these developments, was the need for a federal government that could protect property. The states, they felt, were unable to stand up for property rights (of creditors and land owners) against popular sentiment for debt-relief and redistributionists.

Ferling offers a few quotes:

“Our chief danger arises from the democratic parts of our constitutions.”

The “people … should have as little to do as may be be about the Government.”

The “evils we experience flow from the excess of democracy.”

Randolph urged checks against “the turbulence and follies of democracy” and maintained that ways must be found to restrain “the fury of democracy.”

The Constitution “embraced what Madison subsequently called the ‘republican remedy’ against radical change.” The factions (F10) would prevent any hasty, democratic policy-making. Here is Ferling:

Indeed, Madison boasted proudly that the system would “refine and enlarge the public views,” resulting in national policies “more consonent to the public good than if pronouced by the people themselves.”

…But somewhat cryptically he also explained why this new national government would not be susceptible to the sort of substantive changes that had occurred in several states. Few of the “new men” so visible in state politics, Madison said, were likely to rise to this higher level. The “vicious arts by which elections are too often carried” in the states would be unavailing in the national electoral systems by this convention. …National officials would be “a better class” of society….Madison’s communication, first to the majority that attended the convention, then to like-minded nationalists throughout the county, was that the way had been found by which to make radical change difficult, if not impossible. Change at the state level would be impeded by the national government. At the national level, the separation of powers and numerous checks and balances erected within the proposed new constitutional system were to constitute purposeful barriers to change. …If this Constitution went into effect, the “changeableness” that had been set afoot by the American Revolution would henceforth be unlikely or, at best, would occur at a glacial pace.

Fewer of the “new men” would rise to national leadership. In the context of these few quotes, that fear of the new man is a much different driver, regarding national leadership, than the big pool, meritocracy driver.

A meritocracy implies an egalitarian playing field and one in which particular talents are recognized with all other things being equal. The bigger the net, the better chance of finding the right fish. There is something quite different to the notion that we need national leaders to keep a status quo.

I cannot help but think of Hamilton and Madison. Hamilton, a foreign bastard, could become a national leader because of meritocracy. Madison, the wonk-gentleman, typifies the landed interests prominent among most other founders.

They both predict, in their Federalist essays, a finer breed of national leaders. But, I wonder if their assumptions and motivations for that leadership were quite unalike.

 

January 17, 2010

the federal government pulling our heartstrings (F27)

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Alexander Hamilton and Thomas Jefferson were both a bit fanciful; and, reading Federalist 27 along with some contemporaneous Jefferson letters, I saw two idealistic pictures indeed; but painted with very different presuppositions.

Hamilton’s two main points in F27 are that people will love (really, love) the federal government; and, if not, the federal government will be better than regional governments in quelling rebellions.  He begins by refuting the “presupposition that the people will be disinclined to the exercise of federal authority in any matter of an internal nature.”  But why would folks be so disinclined towards federal government? “Unless we presume at the same time that the powers of the general government will be worse administered than those of the State government, there seems to be no room for the presumption of ill-will, disaffection, or opposition in the people.”

In other words, the federal government will work so smoothly that folks will naturally regard it fondly.  Hamilton reminds us why, summarizing the ways that the papers have argued the “general [federal] government will be better administered than the particular [state] governments”: (1) of the larger national selection pool from which federal politicians can be selected; (2) state legislatures will choose able Senators; and (3) the national forum of leaders will be more free from faction than local politics.

So, “until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the Union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members.”

A charming aspect to Hamilton’s F27 is his notion that the more entrenched the federal government becomes in the daily life of Americans, the more they will love the government.  I’ll quote at length, as this is Hamiltonian idealism at its most poignant.

I will, in this place, hazard an observation, which will not be the less just because to some it may appear new; which is, that the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. …The inference is, that the authority of the Union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the familiarity and comprehensiveness of its agency. The more it circulates through those channls and currents in which the passions of mankind naturally flow, the less will it require the aid of the violent and perilous expedients of compulsion.

But, what if the springs of the human heart ossify and the communities of America fall out of affection with the federal government?  If rebellions do arise, a strong federal government will be best in preventing and disarming them.

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? …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.

It is interesting that Hamilton is using the insurmountability of the federal government as a factor in favor of the new Constitution. The argument stems from quite a different set of assumptions from those that formed the dream of, say, Jefferson’s blood-fed tree of liberty.  Jefferson penned the letter to William Smith that gives us the tree of liberty, by the way, about one month before the New York Packet published Hamilton’s 27th Federalist. He had just received a copy of the proposed Constitution.

I do not know whether it is to yourself or Mr. Adams I am to give my thanks for the copy of the new constitution. I beg leave through you to place them where due. It will be yet three weeks before I shall receive them from America. There are very good articles in it: & very bad. I do not know which preponderate.

The oft-quoted bit in Jefferson’s letter, about the tree of liberty, comes in his response to world-wide rumors about America being in a state of anarchy; stemming, according to Jefferson, from an overreaction to Shay’s Rebellion - the “single instance of Massachusetts.”    That uprising, consisting mainly of poor farmers angry with their debts and taxes, became the National centerpiece for those that wanted to chat up a stronger centralized government than the Articles of Confederacy provided.  Jefferson saw that talking-point developing, and worried that the rebellion would be blown out of proportion and manipulated.

Yet where does this anarchy exist? Where did it ever exist, except in the single instance of Massachusetts? And can history produce an instance of rebellion so honourably conducted? I say nothing of it’s motives. They were founded in ignorance, not wickedness. God forbid we should ever be 20 years without such a rebellion. The people cannot be all, & always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. We have had 13. states independent 11. years. There has been one rebellion. That comes to one rebellion in a century & a half for each state. What country before ever existed a century & half without a rebellion? & what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon & pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is it’s natural manure. Our Convention has been too much impressed by the insurrection of Massachusetts: and in the spur of the moment they are setting up a kite to keep the hen-yard in order. I hope in God this article will be rectified before the new constitution is accepted.

Earlier in 1787, Jefferson remarked similarly in a letter to James Madison:

I hold it that a little rebellion now and then is a good thing, & as necessary in the political world as storms in the physical. Unsuccessful rebellions indeed generally establish the encroachments on the rights of the people which have produced them. An observation of this truth should render honest republican governors so mild in their punishment of rebellions, as not to discourage them too much. It is a medicine necessary for the sound health of government.

And a month later, in a letter to Abigail Adams: “I like a little rebellion now and then. It is like a storm in the Atmosphere.”

Abigail had been updating Jefferson on the Shay’s happenings.  Apparently the updates left Jefferson cliff-hung:

They were the latest I had seen or have yet seen. They left off too in a critical moment; just at the point where the Malcontents make their submission on condition of pardon, and before the answer of government was known. I hope they pardoned them.

Jefferson’s seat-edged excitement feels to me a bit like a child awaiting the end to a bedtime story; and that’s a point I take away from this exchange: Jefferson was distanced from the actual rebellion  he praised.  Would he have been so happy with uprisings if they unsettled Monticello while he was home?

By the way, and to conclude with a return to F27, I think Hamilton’s best argument is in his final two paragraphs.  In a league of state-entities such as that under the Articles of Confederation, legal enforcement relies, really, only on force.  It is analogous to international law, where shame and force are the only bindings to the “law.”  In a unified government as proposed in the Constitution, the states and citizens are bound to a legal structure with several mechanisms apart from force with which to enforce laws.

 

December 10, 2009

F26 and the Golden Mean

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F26 continues Publius’s argument against restraining the federal government’s ability to provide for the national defense (principally by means of maintaining a standing army). He focuses in this essay on how the Constitution provides checks and balances within the federal government itself, which he argues are sufficient in and of themselves to restrain the army’s power—thus, no need to restrict such power by tipping the balance of federalism more towards the states.

I haven’t thought a lot about the connection between the Constitution’s checks and balances and the Aristotleian concept of the Golden Mean, but F26 draws the parallel pretty explicitly. The first paragraph mentions that war (specifically, in this case, the Revolutionary War) rarely gives rise to moderation in the public mind. “That happy mean” between “the energy of government” and the “security of private rights” is a “delicate and important point.” And war is a blunt instrument. It is bound to land us too far on one side or the other of the delicate balance. Publius offers a scary anti-vision where the USA bounces from one failed Articles-of-Confederation-like governmental structure to another, and then to another (as he puts it, “one chimerical project to another”), never actually settling in the felicitous middle.

Aristotle says that the virtues are those qualities which are warped by either deficiency or excess.  E.g. courage: someone who lacks all courage and constantly runs away is a coward, while someone who fears nothing is rash.  In this way the virtue of courage depends on a “mean” between two extremes.  (See Nichomachean Ethics, Chapter 2.)  Similarly, F26 seems to argue that if we have too little governmental power on the one hand, our social contract breaks down, and we may as well dispense with the states and nations completely and govern on the county level. The evils of the other extreme, too much governmental power, hardly need to be described, since the audience has only recently emerged from a war against what they perceived to be absolute monarchy. Constitutionally forcing Congress to re-evaluate military funding every two years, Publius argues at length, strikes the perfect balance in the standing army debate, because “it is impossible that the people could be long deceived; and the destruction of [a project to undermine the civil government] would quickly follow the discovery.”

It’ll be fun to watch future Federalist Papers for other instances of such “golden means” being struck by the proposed Constitution.  No question the ancient Greeks were a big influence on the Founding.

 

October 5, 2009

note to the future

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Eventually we will get to Federalist 77. When we do, we ought come back to this point and counterpoint from Seth Tillman and Jeremy Bailey.

On first glance of F77, Hamilton seems to be urging the Senate’s role in decommissioning executive appointees.  That’s a bit of a puzzle, as a student of Hamilton’s wouldn’t presume him to make such a case.  Tillman urges a re-reading, focusing on the word “displace,” and the contemporary meanings of the term.  That Hamilton argues for the Senate’s advisory role in displacing an appointee is not so strange if that word means “replacing.”

Bailey responds with support of the standing notion that Hamilton really did argue for limits on executive removal powers.

That said, we’ll likely hold our blogging tongues until we reach that conundrum.

 

September 25, 2009

little, cold wars (F25)

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Hamilton continues the national army argument with F25.  Perhaps it is his romantic attachment to arms (see, below, the last lines of his letter, at age 15, to his buddy Ned), but he really brings out the gems when arguing for the army, beginning with some projections on the lack of a national army.

As some states, facing threats in greater proportion, would ramp up defenses; other states might ramp up simply not to be outdone by their neighbors.  I imagined a cold war of muskets and canons among the early American states while reading Hamilton’s column:

The States, to whose lot it might fall to support the necessary establishments, would be as little able as willing, for a considerable time to come, to bear the burden of competent provisions. The security of all would thus be subjected to the parsimony, improvidence, or inability of a part. If the resources of such part becoming more abundant and extensive, its provisions should be proportionally enlarged, the other States would quickly take the alarm at seeing the whole military force of the Union in the hands of two or three of its members, and those probably amongst the most powerful. They would each choose to have some counterpoise, and pretenses could easily be contrived. In this situation, military establishments, nourished by mutual jealousy, would be apt to swell beyond their natural or proper size; and being at the separate disposal of the members, they would be engines for the abridgment or demolition of the national authority.

On the notion that a national army is preferable to several state forces, the following is exemplary of Hamilton’s rhetoric of what would seem common sense (I’m reminded of Lincoln, here).  Isn’t it better to have an army against which we are guarded?

As far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.

Apparently the anti-feds argued that we should perhaps only allow a standing army in time of conflict; or to not allow the Nation to raise an army during peace.  To the former, Hamilton figures it will always be possible to plead conflict (Hamilton: “Indian hostilities, instigated by Spain or Britain, would always be at hand.” He’s probably right – think of post-WWII defense-spending rhetoric.)  To the latter, Hamilton wonders why America ought to be the only nation “incapacitated by its Constitution to prepare for defense.”

—

I was interested to read the following bit about a standing army as opposed to the militia.  Still a novice in American history, I didn’t know much about the revolutionary-period militias.  I reckoned they were what made up our army.  Nope.

I’m about through with another Modern Scholar lecture series – this one is Joseph Ellis’ lectures on “founding brothers,” riffing from his well-regarded book.  Just this morning, I listened to Ellis’ lecture on the war.  One of his takeaway points was that we didn’t need to win, we just needed the British lose (the lecture also analogizes the strategic character of the Revolutionary War to that of Vietnam); and the British lost because they didn’t realize soon enough what they needed to go after.  Rather than seize any geographical spot, they needed to destroy the revolutionary army.  And, perhaps because Howe didn’t pursue Washington across New Jersey, the British lost their chance to really crush the American army.

Ellis urges that it is a myth (and was an early developed myth) that rag-tag militias won the war.  The specifics of military history and strategic lessons aside, it was interesting to learn that there was a politics to the militia/army distinction; and to whom the credit for winning belonged.  Connecting the dots, it makes sense: the army was national, the militias were state-mustered.  I suppose I should have been a bit more on top of that history after Heller.

In any event, Ellis argues that Washington and Hamilton certainly embraced the conclusion that the army, not the militia, won the war (by not getting crushed; thus, by existing).

Which all makes this fit right in:

Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind.

—

Finally, Hamilton argues that it does not matter what we put down as rules.  Pointing to Shays’ Rebellion, he figures that the states will produce armed forces regardless of processes dictated by law: “how unequal parchment provisions are to a struggle with public necessity.”

Perhaps I’m feeling easily moved, but Hamilton seems to have really put out some solid rhetoric with F25.

–

…I’m confident, Ned that my Youth excludes me from any hopes of immediate Perferment, nor do I desire it, but I mean to prepare the way for futurity, I’m no Philosopher you see and may be justly said to Build Castles in the Air, my Folly makes me ashamed and beg youll conceal it, yet Neddy we have seen such schemes successful when the Projector is Constant. I shall Conclude saying I wish there was a war.

 

September 7, 2009

“A Fatal Instrument to Overturn the Public Liberties”: The Anti-Federalist View of the Standing Army

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“The man who reproves another for a fault, should be careful that he himself be not guilty of it.”  — Brutus,  Essay IX, 17 January 1788, in a rebuttal of Federalist Paper 24

Some off-blog discussions with Andrew got me curious about whether the Anti-Federalists truly deserved F24’s bile.  Purely as rhetoric for its own sake, the Paper’s strong language could serve as a check to current political discourse – but if Publius’s criticism was actually warranted, it would pack even more of a punch.  So I dusted off my copy of The Anti-Federalist, which is actually an abridged version of The Complete Anti-Federalist, edited by Herbert J. Strong.  Even within the constraints of the abridged version, the Anti-Federalists have lots and lots to say about the evil of standing armies!  Interestingly enough, the majority of anti-standing army essays seem to have been written after F24.  Apparently Publius’s angry expostulations set off quite the firestorm of reaction on this particular topic.

But I’m getting ahead of myself:  first, as to whether the cold rage of F24 fell upon deserving heads:  I would say, in the end, no.  Of the Anti-Fed writings that predate F24’s 12/21/87 publication, consider the following:

In despotic governments, as well as in all the monarchies of Europe, standing armies are kept up to execute the commands of the prince or the magistrate, and are employed for this purpose when occasion requires:  But they have always proved the destruction of liberty, and [are] abhorrent to the spirit of a free republic. . . .  A free republic will never keep a standing army to execute its laws.  It must depend upon the support of its citizens.

– Brutus, Essay I, 18 October 1787, writing, as Publius does, “To the Citizens of the State of New-York”

Patrick Henry also weighed in, somewhat less coherently (but we forgive him, since this is only the transcription of a speech rather than a considered piece of writing):

Did you ever read of any revolution in any nation, brought about by the punishment of those in power, inflicted by those who had no power at all?  You read of a riot act in a country which is called one of the freest in the world, where a few neighbours cannot assemble without the risk of being shot by a hired soldiery, the engines of despotism.  We may see such an act in America.  A standing army we shall have also, to execute the execrable demands of tyranny:  And how are you to punish them?  Will you order them to be punished?  Who shall obey these orders?

– Speech to the Virginia State Ratifying Convention, 5 June 1788

There is anger and fear here, but both Brutus (whoever he was) and P. Henry also appeal to reason and to a sober consideration of the examples of history, as Publius himself loves to do in his more didactic moments.  Even more tellingly, the United States has historically always refused (and continues to refuse to this very day) to deploy its military on American soil.  So in that sense, the Anti-Feds have won out.  In short, Brutus and Henry voice entirely legitimate objections, and it is hardly fair of Publius to label them unprincipled or disingenuous or sinister.

Brutus was apparently of the same opinion, because in a mid-January 1788 address to the New York citizenry, he devotes a good bit of space to laying out a blow-by-blow refutation of F24, which he prefaces with the following:

A writer, who is the boast of the advocates of this new constitution [take that, Hamilton!], has taken great pains to shew, that this power [of maintaining a standing army] was proper and necessary to be vested in the general government.  He sets out with calling in question the candour and integrity of those who advance the objection, and with insinuating, that it is their intention to mislead the people, by alarming their passions, rather than to convince them by arguments addressed to their understandings.  The man who reproves another for a fault, should be careful that he himself be not guilty of it.  How far this writer has manifested a spirit of candour, and has pursued fair reasoning on this subject, the impartial public will judge, when his arguments pass before them in review.

– Brutus, Essay IX

Hamilton, unlike the Anti-Feds, pretty much deserved this kind of dressing down.  And what is more, Publius really set himself up for a hypocrite’s fall with F24’s over-reaction.

All that said, The Ham still can’t be beat for pure rhetorical beauty.  And even if the words of F24 weren’t entirely disingenuous, I still wish more of today’s politicians and talking heads would take them to heart.

 

September 3, 2009

Meanwhile, abroad…

Posted by Andrew under constitutional law, Federalist, history | Tags: , |
1 Comment 
About a week before Publius’ 24th Federalist column appeared in the December 19 1797 edition of ___ , Thomas Jefferson wrote to his fellow foreign minister, John Adams.  The two wrote to each other frequently, at least once or twice a month.
They were fellow diplomats – Jefferson in Paris, and Adams mainly in London – and the less-experienced Jefferson frequently solicited Adams’ council.  Thus, the letters read a bit like the dialogue down a hallway between a new accountant and his appointed mentor.  Do you think we ought to pay the principal on this loan to avoid bad credit with other nations?  And, because it is Adams and Jefferson, the work-talk is interspersed with things like, “How do you like our new consitution?”
That was how Jefferson ended a letter on November 13, 1787, and then he answered his question: some problematic items “stagger all [his] dispositions to subscribe” to it.
Specifically, (1) the House of Representatives seemed to Jefferson inadequate to manage the new country and its foreign affairs; (2) the Presidency appeared set to become a perpetually reelected postition; and (3) even if not reelected, the President might grab perpetual power with his Constitutionally granted force of the military.  Generally, wrote Jefferson, “all the good of this new constitution might have been couched in three or four new articles to be added to the good, old, and venerable fabrick …”  (Jefferson to Adams, Paris, November 13, 1787)
1787 and Jefferson already shared talking points, from across the Atlantic, with those naysayers that Hamilton blasted a few weeks later in F24.
On December 6, 1787, Adams answered Jefferson’s last paragraph (he answered the work-related questions a few days later).  First, he disagreed with Jefferson’s take on the Articles of Confederation.  That aside, Adams well summarizes for we later readers his debate with Jefferson: “You are afraid of the one – I, of the few.  We agree perfectly that the many should have a full fair and perfect Representation. – You are Apprehensive of Monarchy; I, of Aristocracy.  I would therefore have given more power to the President and less to the Senate.”
Indeed, this is a powerful summary of a major early debate in American government: what better preserves the people’s voice, a strong legislature or stong executive?  And what of the notion that Andrew Jackson was the first popular President (in that he transformed the Presidency into that office that best represents the people).  It appears that Adams has seen that possibility.
Adams counters Jefferson’s fear that a President might be perpetually reelected with “so much the better.”  Elections, he writes, “have been so often tryed, and so universallyt found productive of Horrors, that there is great Reason to dread them.”

About a week before Publius’ 24th Federalist column appeared in the December 19 1797 New York newspapers, Thomas Jefferson sat down to write his fellow foreign minister, John Adams.

The two wrote to each other frequently, at least once or twice a month.  They were fellow diplomats — Jefferson in Paris, and Adams mainly in London — the less-experienced Jefferson frequently soliciting Adams’ council.  Thus, the letters read a bit like the hallway  dialogue  between a newly hired accountant and his appointed mentor.  A typical subject: Do you think we ought to pay the principal on this loan to avoid bad credit with other nations?  But, because it is Adams and Jefferson, the work-talk is interspersed with things like, So, “How do you like our new consitution?”

That was how Jefferson ended a letter on November 13, 1787.  He answered his question: some problematic items “stagger all my dispositions to subscribe” to it.

Specifically, (1) the House of Representatives seemed to Jefferson inadequate to manage the new country and its foreign affairs; (2) the Presidency appeared set to become a perpetually reelected postition; and, proving that opposition taking points spread like LA wildfires even before the internets, (3) even if not reelected, the President might grab perpetual power with his Constitutionally granted force of the military. Did the line perk Hamilton’s ears across the Atlantic, and spur the young and prolific essayist into Federalist 24?

Generally, wrote Jefferson, “all the good of this new constitution might have been couched in three or four new articles to be added to the good, old, and venerable fabrick …”

On December 6, 1787, Adams answered Jefferson’s last paragraph (he answered the work-related questions a few days later).  First, he disagreed with Jefferson’s take on the Articles of Confederation.  That aside, Adams well summarizes for we later readers his debate with Jefferson: “You are afraid of the one – I, of the few.  We agree perfectly that the many should have a full fair and perfect Representation. – You are Apprehensive of Monarchy; I, of Aristocracy.  I would therefore have given more power to the President and less to the Senate.”

Indeed, this is a powerful summary of a major early debate in American government: what better preserves the people’s voice, a strong legislature or stong executive?  (And what of the notion that Andrew Jackson was the first popular President, in that he transformed the Presidency into that office that best represents the people.  It appears that Adams had already contemplated seen that possibility.)

Adams counters Jefferson’s fear that a President might be perpetually reelected with “so much the better.”  Elections, he writes, “have been so often tryed, and so universallyt found productive of Horrors, that there is great Reason to dread them.”

In light of Lily’s post below, I’m interested in the civic debate between these two.  As we know, they became biter enemies a decade later.  Or did they?  Sure, they didn’t talk – but was their division really between them, as individuals, or between the parties (factions, in Madison’s phraseology) that formed about them?  One wishes that they continued to write to each other through the election of 1800.  Perhaps, had they, we would have an example of intelligent, political debate; three words that so rarely fall together.

Letters: Jefferson to Adams, Paris, November 13, 1787; Adams wrote back about three weeks later.

 

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