This clever juxtaposition of the Article I word of “armies” and the Second Amendment’s preamble on militias by Akhil Reed Amar in his latest book on the Constitution, The Unwritten Constitution, serves to illustrate the concept of America’s unwritten Constitution through deed and action (“We the People .. do ordain and establish…”) that Amar seeks to impart in the second chapter of his book. In this case, the national draft is a constitutional exercise of Congress’ power to raise armies granted in Article 1 because of the enactment played out in the adoption of the Fourteenth and Fifteenth Amendment. After the Civil War, the Union Army played a vital role in reestablishing republican government in the southern states that had rebelled against the constitutionally elected government of the United States and the states that had remained loyal to the Union. 

 

Amar’s argument is that the events and acts that lead up to the proposal and ratification of the Constitution and its amendments compose part of the unwritten Constitution that, interwoven with the actual written Constitution, makes up the foundational fabric of American law. He examines the principle by proposing that the Reconstruction Congress reinterpreted the expectations of the Founders underlying the militia system. The militia system had been established by the Founders to be locally-based and under the control of the States in order to preserve the People’s freedoms and liberties from centralized tyrants. However, by the 1860’s, the militia system had been turned into an instrument of resistance against the federal government and Civil War erupted, turning the Founder’s experiment in republican government on its head. The Union Army, an Army which was composed of conscripted soldiers up until the end of the Civil War, helped to bring the Reconstructed South into the Union, and part of their readmission was the ratification of the Fourteenth Amendment. 

 

So because of the events and actions behind the adoption of this important Amendment, the Constitution was reconstructed and the Army, an institution of suspicion in late 18th century America, was given a new place of trust and prominence because of its role in freeing the slaves and the hold slavery had on the liberties and humanity of all Americans.  

Not So Eerie Parallel

The analysis of John Yoo’s problem with Elena Kagan reminded me of something I attribute to the Watergate scandal, specifically G. Gordon Liddy. The paraphrase was something like ‘The President can not give an unlawful order’.  I can’t find the quote, I might have it attributed to the wrong person. To be fair I’m basing it on 30-year-old memories but I was quite struck by how there could exist a class of person who was so willing to follow a leader regardless of direction, whether into battle or over a cliff. It is these men who allow their hyper-loyalism to distort their duty to the country; if I had to guess I would say that in their minds the President _is_ the country and what is right for one is automatically right for the other.

In political discourse it has become easy for the newly elected to delude themselves with “I won therefore I must be right” which taken to the logical extreme can become ‘might makes right’, the damage being to the idea that the entire constituency is the source of power not just the subset of people who agree with you and vote.  If tolerence is supposed to be a virtue it must be getting lonely of late.  Governing without regard to the minority has long been recognized as another form of tyranny; occurring in a democracy only makes it a minor tyranny whose overthrow is only an election away – but a tyranny still. 

True patriots do not ask, “If you are not with us, you are against us”, which relies on demagoguery and fear to quell dissent.  A true patriot asks, “Is this what is best for the country as a whole?”  We are not a country of one mind in complete agreement, of which our founding father’s were quite aware, and to progress down the road of history will require those who rule to show respect for the opinions and beliefs of the minorities being ruled, how else to have the respect of the people – for if you show the people your scorn for them, you no longer are deriving your power from them and have begun to take the well-worn steps down the despot’s road.

American Localism

In his book Timely Renewal, James W. Lucas makes a particularly effective case for decentralization of government power and placing governance as close to the people, in geographic terms, as possible. Arguing that large federal government (and its associated suffocating regulations and debt) and large corporations (and their anti-competitive monopolies) have brought declining creativity, productivity and standards of living, Lucas argues for a return of “American localism.” Large-scale nationalism and mercantilism have killed the spirits of entrepreneurism and local community. The natural relationships among humans have been severed as integration at greater and ever larger scales abstract us from one another at ever increasing levels, leading to dysfunction and dehumanization. Is it any wonder Congress is so polarized and entrenched?

Politics and economics “as if people matter” demands decentralization and devolution of power. Lucas writes:

Progressive, anti-globalization activist David Korten considers it “to be a near-universal truth that diversity is the foundation of developmental progress in complex systems, and uniformity is the foundation of stagnation and decay…. Our challenge is to create a locally rooted planetary system biased toward the small, the local, the cooperative, the resource-conserving, the long-term, and the needs of everyone.” Strong local economies “encourage the rich, flourishing diversity of robust local cultures and generate the variety of experience and learning that is essential to the enrichment of the whole.” (David C. Korten. When Corporations Rule the World, second edition. San Francisco: Berret-Koehler Publishers, Inc. and Kumarian Press, 200-, pp. 240-241.) A key principle in achieving these ends is that “governance authority and responsibility are
located in the smallest, most local system unit possible to maximize opportunity for direct, participatory democracy.” Such communities are strongest when they have strong social capital, for which locally owned businesses are a key element. (Korten, pp. 245, 251.)

The author quotes another historian William Appleman Williams, who proposed replacing the institutions of “American empire” with a federation of regional communities. “The price of liberty is not so much vigilance as involvement. If you want to rest, vote for a dictator. The crucial arena for such citizen groups is and will remain the states. That is where social movements have to be build.”
(Lucas, pp. 60-61)

Lucas reminds us that simple arithmetic shows that states are more representative of and responsive to citizen needs than the federal government. “The 435 members of the national House of Representatives have on average more than 700,000 constituents in each of their districts…. In contrast, the more than 7,000 state legislators represent on average just over 50,000 constituents each.”

Those who pine for government activism should return their efforts to the States. The federal bureaucracy has become so bloated and the Congress so plodding that change at the federal level takes decades of tireless lobbying, advertising, politicking, and horse-trading. It took 100 years to pass so-called “universal health-care.” However, the states are close to the people, both in heart and geography, and there are less people across a state for which to account in the eventual compromise, making conversation more natural and participation for the average citizen possible (big money campaigns at the local level are not of concern). Change can be tried with greater ease and nimbleness, and any potential failure is contained in its scope to the state at hand. Success of experimentation is then rewarded by other states seeking to emulate the model, latching onto the successful government involvement.

Those who love freedom and limited government clamor for a more vibrant federal-state balance as well. Jefferson said, “unless the mass retains sufficient control over those entrusted with the powers of their government, these will be perverted in their own oppression, and to the perpetuation of wealth and power in the individuals and families selected for the trust.” Remembering that the federal government was put in place for continental defense and cooperation, the balance of an energetic federalism has the added benefit of diffusing power across a broad number of institutions, separated by thousands of miles, making coordination difficult, even in this age of the Internet (state governments cannot coordinate to call a federal Constitutional Convention, it seems, never mind some effort more complex).

In his book, Lucas does a fantastic job of tracing the rise of federal involvement, control, and centralization. While his book is more focused on proposing constitutional amendments that would allow the People to take control of that document and reduce the tendency of the Supreme Court to continue sitting as a perpetual constitutional convention, Timely Renewal has highlighted the root of the current problems. I will look at some of those in the blog posts ahead, but first I’d like to take a sidebar to examine what this blog has repeatedly called out as the source of the modern-day federal-state imbalance of power – the Seventeenth Amendment.

Our Consolation must be this, my dear, that Cities may be rebuilt, and a People reduced to Poverty, may acquire fresh Property: But a Constitution of Government once changed from Freedom, can never be restored. Liberty once lost is lost forever.
–John Adams
Regarding the siege of Boston; Letter to Abigail Adams – Philadelphia [July 7th, 1775]

I am for a government rigorously frugal and simple, applying all the possible savings of the public revenue to the discharge of the national debt; and not for a multiplication of officers and salaries merely to make partisans, and for increasing by every device the public debt on the principle of its being a public blessing.
–Thomas Jefferson
Letter to Elbridge Gerry (statesman and diplomat) [1799]

Democracy is messy business because humans are messy. We hear continued lamentations over how antiquated our Constitution is (although it was good enough to rise up the most powerful and prosperous nation in history) and how dysfunctional our Congress is, yet somehow we continue to govern ourselves in freedom and respect for the law. We have seen compromise win out time and again over the past ten years, in this time of supposed hyper-partisanship and “extremists” of each Party acting as terrorists (Biden’s words, not mine). The debt ceiling / deficit reduction compromise is the latest case in point. It is by no means perfect, but no compromise is. No one likes it, because every side had to give up something they desperately believe in. And it is only the first step in a very painful and protracted journey to get our financial house in order. But none of this changes the fact that our Constitution and, even if somewhat belatedly, Congress works as designed (or amended – see the Seventeenth Amendment).

If the federal government’s spending spree of the past ten years (and, truth be told, of the past fifty) proves anything about our Constitution, it’s not how antiquated it is. The lesson to be drawn, to those with eyes to see past their own petty paradigms and presumptions, is just how right the Founding Fathers were and how relevant their counsel still is. The Constitution in Article 1, Section 8 lays out the parameters of federal power, and the specifics were limited in their application to the whole (through the general welfare clause) so that Congressmen could not play favoritism. It is our excursions beyond the bounds of the Constitution that have gotten us into financial trouble:

• Social Security
• Medicare / Medicaid / Universal health care
• The Department of Education / No Child Left Behind
• The Department of Energy

These behemoth social welfare programs have squeezed our spending for the business the federal government should be about according to the Constitution:

• Defense
• Regulation of interstate commerce
• International affairs
• Scientific exploration
• The Post Office (and, by extension of the principle, building out and supporting the interstate infrastructure)

We have strayed from the Constitution’s bounds, but it still provides the governing superstructure for us to successfully resolve our differences in a peaceful way. The fact that our political process has become more slow and more prone to gridlock is indicative only of the many different areas of governance that Congress has stuck its nose in over the years that cannot be managed on such a large level. Regulation, the police power, health care, education – these are matters for the states because these are the things people are most passionate about. These are the things that impact their lives most day-to-day and the need for decision-makers to be close to the people is real. Also, these are areas where people with different worldviews (metanarratives) most violently disagree, so providing options among states is important. If people don’t like what one state is doing, they can fairly easily move to other states. It is easier to gain consensus and move into action at the state level. The machinery is more nimble and smaller scale.

The scale of the federal government is needed on matters of collective, continental interest.

Despite apocalyptic reports of the media, I see shoots if the next wave of bipartisan compromise taking root and growing. Those who have hysterically been wringing their hands over partisan gridlock over the past X number of years either do not understand how Congress works or are so impatient for results and action in the short-term that they are blinded to the realities of the nature negotiation and compromise – it takes time. Sometimes years and more than one attempt.

The country has real and growing problems to contend with at the federal level. Tough problems to solve because real people will be impacted by the decisions. But something must be done or the entire country will be compromised. So people keep trying. Witness: Just in the past week, we have seem bipartisan statements in the areas of immigration and the federal deficit.

• Immigration: the Utah Compact
• The federal deficit commission reported, and 11 member, a majority, approved its plan.

While there these are only the opening for negotiations on these two topics, these are important first steps that will start a process that is older than Washington itself. We need to remember this fact as the emotional roller coaster over these two issues threatens to overwhelm all objective sanity.

Representative Rob Bishop has introduced the so-called Repeal Amendment in the House of Representative as a proposed amendment to the Constitution. The idea is to give the states a mechanism to preserve federalism from their end:

The U.S. Constitution, as drafted by the Founders, designed a system that created a balance of power between state and national government. That original balance has eroded as the federal government has accumulated more and more power in Washington. The Repeal Amendment will help restore the spirit of the Tenth Amendment by strengthening the ability of States to protect those powers “reserved to states”—as outlined in the Bill of Rights.

This is a much more practical alternative to the nullification option proposed by Texas-based constitutional lawyer Jon Roland.

While I have not vetted the text of the proposed amendment or seen much analysis of how projected ability in enabling its objective, here is the wording submitted by Representative Bishop:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

The Balkinization blog held a symposium the past week on Bruce Ackerman’s new book, The Decline and Fall of the American Republic. Stephen Gardbaum wrote one of the reflections on Ackerman’s book, and he also provides a nice recap for the uninitiated:

Bruce Ackerman’s The Decline and Fall of the American Republic is a profoundly important constitutional wake-up call. It presents a powerful, multi-layered, yet highly accessible argument that the body politic faces the serious and unprecedented structural risk of presidential extremism and lawlessness — and a series of new checks and balances that offer the rare combination of pragmatism and originality.

I have not read Ackerman’s book yet, so I cannot comment on it (I will remedy that oversight soon). However, I would like to comment on Gardaum’s essay, Empire Rises. Gardaum agrees with Ackerman’s assertion that the presidency has turned out to be the branch that has proven the most dangerous to republican government, but, unlike Ackerman, he does not want to let the Framers off the hook. He contends that the Framers had all the evidence they needed to draw the right lessons. They simply decided to institute a strong executive:

I think the Framers’ error went beyond this wrong guess to the governmental structure that they established. This structure was inherently and latently flawed at the outset in the way that has come to pass, not precisely of course but generally – and the knowledge to have avoided this was available to them at the time. For the republican revolution that they wrought was not entirely without precedent. The first took place in 510 B.C. when Rome expelled its last king and established the republic. The new republican constitution split both the executive and legislative branches of government into two or more. It replaced the king with two magistrates, the consuls, who were jointly endowed with full executive power, and separated/divided legislative power among several citizen assemblies. The Roman Republic, which became a superpower along the way, lasted for just under five hundred years before it fell when a concentration of power in just one person – Augustus – effectively returned the state to a monarchy under the Empire. In deliberately rejecting the plural executive of the Roman Republic, a far larger version of which was tried and failed during the Articles of Confederation, the Framers hewed too closely to the monarchical structure of government they were nominally rejecting. They effectively replaced the king with a president, and the distinctive British conception of separation of powers between King and Parliament with the analogous one between President and Congress. Hamilton’s Federalist 69 on the differences between the powers of King George and (likely) President George – including an absolute versus a qualified veto of legislation – is arresting in its strained, almost scholastic reasoning and “methinks he protests too much” quality.

I think modern technology, the Party system, and the nature of modern warfare have enabled the presidency to become much more powerful than even Hamilton could have imagined, but the seeds of the imperial presidency were enabled by the Constitution. I have often wondered at the vast number of similarities between the American presidency and the British constitutional monarchy of the eighteenth century. If this analogy is truly the root of the Framers’ conception of the presidency, then the implications for American constitutional principles are vast, e.g., the congressional power to “declare war” truly is only a legislative function and the authority — indeed, the expectation — to wage war rests with the executive. In seventeenth-century Britain, the legislative check on war-making was the power of the purse.

To provide true legislative oversight of the executive, the parliamentary system might, in some delicious irony, be the most effective structure. Without its separation of powers, parliamentary government provides the legislature the ultimate structural control of the executive: the Government comes from and answers to the majority of Parliament.

“We could say [the government is] spending like drunken sailors. But then that would be unfair to drunken sailors. Sailors are out spending their own money.”
–President Ronald Reagan

The Fourth Amendment, in many respects, is the closest thing to a right to privacy that can be found in our federal Constitution. This Amendment has become the bulwark of personal security and liberty in our country, even as we struggle to understand the limits our security should place on our liberty and the imposition that technology places on both. But in Chapter 4 of his book The Bill of Rights, Akhil Reed Amar argues that the Founders were not primarily building an individual right to security and privacy in the Fourth Amendment, rather they were providing another tool for civil juries to keep oligarchical and repressive governments in check.

Let’s walk through Amar’s development of his argument because, even if we do not wish to adopt the Founders’ interpretation of the Fourth Amendment — after all, there is a place for a right to privacy in our constitutional structure — there are principles the Founders’ view of the Fourth Amendment have to teach us.

The Fourth Amendment reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The use of the word “people” in this Amendment rings with echoes of the context of the other Amendments employing this word — the First, Second, Ninth, and Tenth Amendments. This is the clarion call to the sovereignty of “We, the People of the United States.” Amar imagines what the Amendment might mean for us if we take this popular sovereignty perspective alone in its interpretation:

On one reading, the amendment’s language of “the people” could be read as reminding us that we must be especially watchful of government efforts to use search-and-siezure powers to interfere with people’s political activities — circulating petitions (literally the people’s papers), attending political meetings (with the literal persons), assembling in a constitutional convention (which might be seen as a house of the people), and so on. But without more, this reading seems a bit too cute; surely, the main “houses” to be protected here are private abodes, not public assemblies.

Amar argues that the 1763 English case Wilkes v. Wood must have served as an influence for Madison:

Wood involved a famous cast of characters — both the target of the government, John Wilkes, and the author of the opinion, Lord Chief Charles Pratt (soon to become Lord Camden), became folk heroes in the colonies…. Wilkes, a champion of the people and a member of Commons, had used the press to communicate with his constituents and criticize George III’s ministry and majesty. When the government reacted by trying to use general warrants to suppress his political activity, breaking into his house and rummaging through his personal papers, Wilkes brought suit in Wood and successfully challenged the legality of those warrants. Wilkes also brought suit to challenge the “seizure” of his “person.” (The government had imprisoned him in the Tower of London.) In a companion case to Wood, the lord chief justice ordered Wilkes released on habeas corpus on the ground of his Parliamentary privilege from arrest.

Madison quickly turns from the “political to the personal, from the ‘the people’ out-of-doors in conventions and suchlike to “persons” very much indoors in their private homes.”

Yet even here, in taking the familiar talk of individual rights, we must be wary of anachronism and must not automatically assume that the right was essentially countermajoritarian. As with virtually every Bill of Rights provision thus far examined, the Fourth Amendment evinces at least as much concern with the agency problem of protecting the people generally from self-interested government policy as with protesting minorities against majorities of fellow citizens. A self-dealing and oligarchic government, after all, could threaten rights of the people collectively by singling out certain persons — opposition leaders like John Wilkes, for example — for special abuse. To counter this and other threats, the Fourth and Seventh Amendments armed civil juries, drawn from “the people,” with special weapons to protect both individual persons and the collective people against a possibly unrepresentative and self-serving officialdom.

Reflect, for a moment, on the fact that the Fourth Amendment actually contains two different commands. First, all government searches and seizures must be reasonable. Second, no warrants shall issue without probably cause. The modern Supreme Court has intentionally collapsed the two requirements, treating all unwarranted searches and seizures — with various exceptions, such as exigent circumstances — as per se unreasonable. Otherwise, the Court has reasoned, the requirement that a neutral magistrate verify probable cause ex ante would be obviously frustrated — the special safeguards of the warrant clause would be all but meaningless.

But this conflation of the warrant clause with the probable cause clause is not what the amendment says and effectively rewrites the amendment by adding a second sentence: “Absent special circumstances, no search or seizure shall occur without a warrant.”

Amar invites us to rethink our assumptions:

To begin rethinking, consider the paradigmatic way in which Fourth Amendment rights were to be enforced at the Founding. Virtually any search or seizure by a federal officer would involve a physical trespass under common-law principles. An aggrieved target could use the common law of trespass to bring suit for damages against the official — just as Wilkes brought a trespass action against Wood. If the search or seizure were deemed lawful in court, the defendant would prevail; but if, as in Wood, the search were found lawful, the defendant government official would be held strictly liable. There was no such thing as “good faith” immunity.

The problem with the Supreme Court’s modern approach is that the proper role of the jury is displaced, and the role of citizens to act as a check on the professional judiciary and powerful magistrates has been hijacked. General warrants are too, well, general, and the ability of juries to review facts and determine appropriate awards and damages for cases in which they deem rights were violated is compromised. As in our loss of understanding of the militia, the modern jury is a sad shadow of its former energetic self and fundamental structural principles of the original Constitution have been lost.

For hundreds of years, human society has ordered itself around the institution of marriage. Men provided safety, security and sustenance for women, women ordered the household so that men could work out in the community, and the home the man and woman built provided the place for children to be raised in accordance with the expectations and standards of the community. Marriage has not been first and foremost about the happiness of the spouses. That has been a byproduct of a husband and wife reaching for their better selves and working together to become more than the sum of their parts, but the primary purpose has been one of social order and securing the propagation of society.

This all started to change in the twentieth century when women in Europe and the United States went into the workforce and changed the balance and characteristic of the home. Then with the advent of birth control and the Supreme Court decisions of the 1960s that institutionalized the right to privacy in the U.S., the link between marriage and the propagation of society was irreparably broken. Marriage was no longer necessarily about social order. The individual happiness of the people in the marriage was the first order concern of the institution. No-fault divorces became the laws of the land in the states, and everyone accepted the new conventional wisdom without much thought as to the ultimate logical conclusion.

So we should not really be surprised that the definition of marriage has been increasingly challenged over the past twenty years, now to the point where it is a question of equality under the Constitution. Of course it has nothing to do with equality because everyone is perfectly free to marry anyone of the opposite sex. Yet the question remains – if marriage is first and foremost about the happiness of the individual and no longer the primary concern of society, then what right does society have to restrict who can and cannot be married? And there you have it – the competing values that are at play in contemporary debates over the definition of marriage.

Those who defend the traditional understanding of marriage between one man and one woman see marriage still as the fundamental bedrock and foundation of society. Social order is protected by marriage, so society has an obvious interest in ensuring its health. Nevertheless, proponents of traditional marriage lost the debate before it really started. Once the link between marriage and propagation was severed in our minds, the primary reason for marriage to serve as a societal institution was lost.

Those who advocate for the expansion of marriage for same sex couples see the purpose of marriage as serving the personal interests and happiness of the parties of the marriage. It is a contract that can be entered and exited when it no longer suits the needs or interests of one of the spouses. Society has no business getting involved; the government should “stay out of the bedroom,” etc. Nevertheless, proponents of expanding the definition of marriage, along with all the rest of us, have lost the sense in which society is vested in the health of marriage. The future of humanity is bound up in the institution of marriage, and that fact can’t be changed, no matter how hard we try to ignore it.

The currents of history feel like expanding the definition of marriage is inevitable, but even if that plays out, society needs to simultaneously find a way to reunite marriage with childbearing and childrearing. Children with two loving parents who are plugged in and responsible are the best cure to inner city crime and gang activity, suburban drug abuse, and substandard education across the board.

In any case, our fundamental misstep in this debate as a people was to allow the discussion to become federalized. Marriage and family have been regulated by the states since the inception of the Republic, and the federal Constitution delegates no authority to the federal government in the area of marriage. Allowing each state to decide for itself how to order and structure marriage would prevent the mistakes we have made with abortion — politicizing the issue, removing any room for democracy to drive debate and compromise, and smothering presidential elections with social issues that should not be the concern or purview of the U.S. president.

Are we so afraid of losing control that we can’t trust each other to come to the right answers? Is the constant, unending struggle for the political machinery in order to dictate and impose our own beliefs the only resolution to the question? God save us from ourselves if it is. The Founders, once again, knew better.