War is a Racket! Waring myths and Smedley Butler

A few years ago I read "War is a Racket" by Smedley Butler. He was a leader in my Grandfather Holte's and Great Grandfather Carpenter's generation, A Marine General, and a great human being. I remember people from his generation, they were patriotic, no nonsense, and many of them were extremely honest. Of course there are always the aristocrats, but the tradition of the USA military derives from Lucius Quinctius Cincinnatus, more the legends about him than entirely the reality and our own militia tradition.

For most career military, military service was about serving the country. Of course for aristocrats serving the country was also about seeking honor and glory, often in service to a future business and politics career, but for many of our people service came first and personal profit a distant second. Smedley Butler was of that sort. As were both my Grandfathers. My Grandfather Holte served in WWI and my other Grandfather died in a plane crash in 1938, the same year that Amelia Earhart disappeared over the Pacific. They didn't serve in the military to get rich, to get famous, or to steal from others. They did it to serve the country. My Grandfather told me that he joined the Army because his Uncles and cousins, who had served in the Army in the Spanish American War convinced him that it was the right thing to do. But as a Flag Officer Smedley Butler and others learned that not everyone connected with the USA military felt that way.

Police as Occupying, Standing Army

In my re-reading of the Federalist Papers and the Constitution what stands out is the legitimate fear that many people in this country had of standing armies. One of the reasons for that fear is that the British sent troops to the United States, not just to police our border with the Indians or defend forts, but to police our cities. It was the military that put down demonstrations, arrested thieves, arrested dissidents and policed the Streets. When the Founders talked about the dangers of "standing armies" they were only partly worried about wars conducted abroad but far more worried about troops acting as standing armies of police, occupying and carrying out oppressive laws in the name of the crown.

The Declaration of Independence has these passages:

He has erected a multitude of New Offices,

and sent hither swarms of Officers to harrass our people, and eat out their substance.

It sounds like King George was sending in swarms of Police to patrol our streets. And in the case of Boston, that is exactly what he was doing.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

So what is a police force but a "standing army?" I'm not saying that police force are bad. Neither are standing armies necessarily bad.

In the Federalist Papers Hamilton goes into discussion at length on how the Constitution was aiming at preventing the creation of Standing Armies around the country in the States by forcing States and the Federal Government to work together. Indeed he believed that the constitution prohibited the states from keeping standing armies. The Constitution was aimed at preventing not only the federal Government from behaving tyrannically, but also state Governments. And key to that was prohibiting Standing Armies and limiting the separate power of states to keep them:

As Hamilton notes in Federalist 25:

“The framers of the existing Confederation, fully aware of the danger to the Union from the separate possession of military forces by the States, have, in express terms, prohibited them from having either ships or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions." [Federalist 25]”

The Framers didn't want States or the Federal Government to have large standing armies for the reasons listed in the Declaration of Independence.

"Independent and Superior to Civil Power"

The Declaration of Independence continues:

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws;

giving his Assent to their Acts of pretended Legislation:

By Civil power the founders meant the power of courts and legislature. Military power is the power of administrative law and combines judicial and executive powers in the same person. Military power is bureaucratic and by extension bureaucracies also provide a jurisdiction for judging that is "independent and superior" to civil power.... unless the check of appeal to ordinary courts is available and realistic. A recent decision by the Supreme Court made a distinction between interpreting the law and rewriting the law in a decision against the EPA [UTILITY AIR REGULATORY GROUP v. EPA ]. Without Judicial and legislative oversight over bureaucracy "pretended legislation" tends to substitute for actual regulation. And that is what was happening to the American Colonies in the 1760's and 70's.

And the authors of the Declaration also objected to arbitrary power and impunity for the officers and soldiers of the British military who were quartered in our cities.

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

Declaration of Independence [http://www.archives.gov/exhibits/charters/declaration_transcript.html]

By "Mock trials" as my friend explained, the Declaration was referring to the substitute of "Administrative Law" for "ordinary courts" and jury trials. In Administrative courts, such as the Military has, where trials were conducted by persons who often were the same persons as the prosecution and defense. Hence the expression "mock trial"s.

This quartering was without compensation, mandatory, and essentially was a tax or requisition against the citizens forced to take soldiers into their quarters. It was thus very onerous to citizens. And again, because there was no effective legislative or judicial oversight over the military, they could engage in theft and minor crimes with impunity -- and did.

Authors being Hypocritical

Sadly our own founders were hypocrites on some of this

The Declaration of Independence represents a people resisting slavery and oppression. US politicians were loudest about slavery, partly because they were intimately familiar with it. They understood liberty as an inalienable right largely because they were experts at alienating it and infringing the liberties of minorities and slaves in their home districts and States. Part of the origins of our modern police force were:

"The institution of slavery and the control of minorities, however, were two of the more formidable historic features of American society shaping early policing. Slave patrols and Night Watches, which later became modern police departments, were both designed to control the behaviors of minorities. For example, New England settlers appointed Indian Constables to police Native Americans (National Constable Association, 1995), the St. Louis police were founded to protect residents from Native Americans in that frontier city, and many southern police departments began as slave patrols. In 1704, the colony of Carolina developed the nation's first slave patrol. Slave patrols helped to maintain the economic order and to assist the wealthy landowners in recovering and punishing slaves who essentially were considered property." [http://www.plsonline.eku.edu/insidelook/brief-history-slavery-and-origins-american-policing]

Relationship of Police to Standing Armies

Thus police as standing armies is not a new phenomena. Privatized policing isn't new either. It was abandoned for good reasons. This article notes that policing in America has always had two tracks:

"The development of policing in the United States closely followed the development of policing in England. In the early colonies policing took two forms. It was both informal and communal, which is referred to as the "Watch," or private-for-profit policing, which is called "The Big Stick” (Spitzer, 1979)." [History of Policing Part 1]

The article then notes:

"The watch system was composed of community volunteers whose primary duty was to warn of impending danger. Boston created a night watch in 1636, New York in 1658 and Philadelphia in 1700. The night watch was not a particularly effective crime control device. Watchmen often slept or drank on duty. While the watch was theoretically voluntary, many "volunteers" were simply attempting to evade military service, were conscript forced into service by their town, or were performing watch duties as a form of punishment. Philadelphia created the first day watch in 1833 and New York instituted a day watch in 1844 as a supplement to its new municipal police force (Gaines, Kappeler, and Vaughn 1999)." [History of Policing Part 1]

The Watch members were essentially militia, drafted to local service. But not particularly well trained.

"Augmenting the watch system was a system of constables, official law enforcement officers, usually paid by the fee system for warrants they served. Constables had a variety of non-law enforcement functions to perform as well, including serving as land surveyors and verifying the accuracy of weights and measures. In many cities constables were given the responsibility of supervising the activities of the night watch." [History of Policing Part 1]

The constables were essentially their officers. Also not particularly well trained. To remedy that, professional police were substituted for militia over a period of time:

"These "modern police" organizations shared similar characteristics:

(1) they were publicly supported and bureaucratic in form;

(2) police officers were full-time employees, not community volunteers or case-by-case fee retainers;

(3) departments had permanent and fixed rules and procedures, and employment as a police officers was continuous;

(4) police departments were accountable to a central governmental authority (Lundman 1980)."

[History of Policing Part 1]

In the South Modern Policing grew out of the before mentioned Slave Patrols as these were reshaped to reflect "modern" notions of policing but kept their core function of oppressing blacks (before and after slavery ended) and enforcing the power of land-owners. [ibid] But North or South the development of policing:

"More than crime, modern police forces in the United States emerged as a response to "disorder." What constitutes social and public order depends largely on who is defining those terms, and in the cities of 19th century America they were defined by the mercantile interests, who through taxes and political influence supported the development of bureaucratic policing institutions. These economic interests had a greater interest in social control than crime control. Private and for profit policing was too disorganized and too crime-specific in form to fulfill these needs." [History of Policing Part 1]

Essentially these bureaucratic police departments were modeled on the British model of standing armies. The Constitution was created in part to regulate standing armies. And the tension between our chaotic local policing system and the Federal Design is driving much of our current climate. "Keeping Order" may be important, but if citizens are treated as if they were in occupied territory, then that is tyranny as enumerated in the Declaration of Independence.

Doctor Gary Potters in his 6 part series (quoted from part 1) describes how policing has tended to be oppressive, corrupt and with only the pretense of rule of law. He describes the evolution of policing from it's Slavery Enforcement and border repression roots to it's use in prohibition, to crush worker rights up the current time.

Further Reading & Sources:

Declaration of Independence

History of Policing [http://plsonline.eku.edu/insidelook/history-policing-united-states-part-1]

History of Policing and Slavery: [http://www.plsonline.eku.edu/insidelook/brief-history-slavery-and-origins-american-policing]

More history of Policing (worth reading):

Maintaining Illusion of Rule of Law

Police as Strike Breakers/Army

Advent of Prohibition

Wikersham, Reform and Taylorization anti-reform

Cosmetic Reforms and Militarization

The Collective in the Federalist Papers

Introduction

There are too many references to the "collective" in the Federalist papers [I counted 26] for me to do anything but laugh when I hear the sophistry of the Randian types in their collective equation of collective and democracy and the collective animosity of insults aimed at the concept of collective action. Now the collective in their writings is an ideology, but that is a strawman because we Americans have never seen our government as a false choice between collective and individual except under the influence of foreign writers like Rand or Nietzche. To prepare for this post I downloaded the entire Federalist papers in text form so I could do word searches and word counts. I counted 26 references to collective and collective actions in the Federalist Papers. I would prefer to go into a detailed explanation of each of the references in context. But for this post I'll try to cover all 26. This is for future reference so don't stress too much in reading it.

Collective Action is also a plea for Unity

In Federalist 6 is the first reference to Collective. It's part of a plea for Union versus chaos titled:

Concerning Dangers from Dissensions Between the States For the Independent Journal.

In it he writes, admittedly warning of the dangers of collective animosity:

"The causes of hostility among nations are innumerable. There are some which have a general and almost constant operation upon the collective bodies of society. Of this description are the love of power or the desire of pre-eminence and dominion--the jealousy of power, or the desire of equality and safety."

In Federalist 9, continuing his theme of "The Union as a Safeguard Against Domestic Faction and Insurrection For the Independent Journal", Hamilton refers to the artificial and arbitrary distinction:

"A distinction, more subtle than accurate, has been raised between a CONFEDERACY and a CONSOLIDATION of the States. The essential characteristic of the first is said to be, the restriction of its authority to the members in their collective capacities, without reaching to the individuals of whom they are composed. It is contended that the national council ought to have no concern with any object of internal administration. An exact equality of suffrage between the members has also been insisted upon as a leading feature of a confederate government. These positions are, in the main, arbitrary; they are supported neither by principle nor precedent."

You see echoes of this argument in current debates, where "States-Rights" proponents suggest that the Federal Government only be responsible for those responsibilities of government that are the jurisdiction of the country as a whole "in their collective capacity." As he notes the distinction between what is enumerated as a collective responsibility and what is or ought to be left to the States on their own is "in the main, arbitrary." This passage supports notion that whatever is in the general interest of the United States should be addressed in the capacity of the United States as a collective. That doesn't mean we ought not to adjust the constitution to spell out the respective roles of Local communities, states and Federal government.

In Federalist 15 "The Insufficiency of the Present Confederation to Preserve the Union"

Hamilton does inveigh against;

"The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist."

This quote comes close to supporting a civil liberties position, but since most Libertarians are blind to the meaning of the term "corporate" in this context, it is stating a common principle of our commonwealth that all our rights and privileges are there to protect our rights and happiness as individuals. This was true of the Articles of Confederation, and those great pretend Civil Libertarians of the Right would shift individual rights to corporate or property rights of the "right peopel" (aristocrats) now. SCOTUS does this when it defines Corporations as people with more rights than natural persons.

Hamilton also makes an appeal to the rule of law that shows how we transfer power to individual rights and responsibility to obey the law by shifting guilt for breaches to the individual through the use of courts. I'm taking the liberty of providing the whole quote again because I love it so and it is so important to know:

"Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation."

We are seeing the fruit of this with the misbehavior of those standing Armies we call police forces at the current time.

"This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms. The first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced."

He's saying that courts need to have the power to act against individuals and enforce their decrees. But that judges are far less likely to employ armies to enforce the law. Indeed most courts are dependent on the executive.

"Sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it.

Hamilton is referring to Governments versus Governments and is making a recommendation for the principle that no person (including magistrates and their executive authority) be above the law. That is an individual duty and an important principle of a republic. But he's also warning of the consequences of governmental offices having impunity.

He continues in Federalist 16 referencing the collective:

"It seems to require no pains to prove that the States ought not to prefer a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. And yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. Such a scheme, if practicable at all, would instantly degenerate into a military despotism; but it will be found in every light impracticable. The resources of the Union would not be equal to the maintenance of an army considerable enough to confine the larger States within the limits of their duty; nor would the means ever be furnished of forming such an army in the first instance. Whoever considers the populousness and strength of several of these States singly at the present juncture, and looks forward to what they will become, even at the distance of half a century, will at once dismiss as idle and visionary any scheme which aims at regulating their movements by laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to them in the same capacities. A project of this kind is little less romantic than the monster-taming spirit which is attributed to the fabulous heroes and demi-gods of antiquity."

Of course what the Government did do was to rename "army" into "police, FBI, Secret Service, etc...." and enlist the States into collaborating on it's projects through money, shared project and shared resources. So in this case, again Hamilton is referring to things the Right Wing, when they aren't scheming to build just such institutions, claim to fear. The States need not fear having their movements regulated. Just us common citizens.

FEDERALIST No. 23 The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union

In Federalist 23 Hamilton excoriates the failures of the Articles of Confederation. Making it possible for the Federal Government to demand resource, but making the actual delivery of those resources voluntary.

"The experiment has, however, demonstrated that this expectation was ill-founded and illusory; and the observations, made under the last head, will, I imagine, have sufficed to convince the impartial and discerning, that there is an absolute necessity for an entire change in the first principles of the system; that if we are in earnest about giving the Union energy and duration, we must abandon the vain project of legislating upon the States in their collective capacities; we must extend the laws of the federal government to the individual citizens of America; we must discard the fallacious scheme of quotas and requisitions, as equally impracticable and unjust. The result from all this is that the Union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments."

In this passage he uses collective almost in the fashion described by the anti-Communists who found collective decision making by committee as maddening as our founding fathers did. But the objection is to notions like 100% agreement before something becomes law and excessive strictures on the taxing power. Those were objections to the Articles of Confederation that Hamilton refers to repeatedly in his writings here. And we see this clarified in Federalist 27.

In Federalist 27 "The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered."

He refers to "Collective" in referring to the potential of sedition by persons and governments from the States. In this collective power is a good thing:

"The hope of impunity is a strong incitement to sedition; the dread of punishment, a proportionably strong discouragement to it. Will not the government of the Union, which, if possessed of a due degree of power, can call to its aid the collective resources of the whole Confederacy, be more likely to repress the FORMER sentiment and to inspire the LATTER, than that of a single State, which can only command the resources within itself? A turbulent faction in a State may easily suppose itself able to contend with the friends to the government in that State; but it can hardly be so infatuated as to imagine itself a match for the combined efforts of the Union. If this reflection be just, there is less danger of resistance from irregular combinations of individuals to the authority of the Confederacy than to that of a single member."

And then he continues later extolling the collective power of union over the collective power of factions or States:

"One thing, at all events, must be evident, that a government like the one proposed would bid much fairer to avoid the necessity of using force, than that species of league contend for by most of its opponents; the authority of which should only operate upon the States in their political or collective capacities. It has been shown that in such a Confederacy there can be no sanction for the laws but force; that frequent delinquencies in the members are the natural offspring of the very frame of the government; and that as often as these happen, they can only be redressed, if at all, by war and violence."

In Federalist 31, "Concerning the General Power of Taxation"

He refers to Taxation and the necessity for the Federal Government to be able to collect taxes directly:

"As theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the States in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes."

In Federalist 31 Madison weighs in using the term "Collective"

"The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL, not the FEDERAL character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a NATIONAL government."

Madison in Federalist 40 "Powers to form a Mixed Government:"

Madison talks of how the Federal Government will and ought to have a mixture of national and Federal roles:

"....In some instances, as has been shown, the powers of the new government will act on the States in their collective characters. In some instances, also, those of the existing government act immediately on individuals. In cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the Indians; of claims under grants of land by different States; and, above all, in the case of trials by courts-marshal in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate; in all these cases the powers of the Confederation operate immediately on the persons and interests of individual citizens...."

In FEDERALIST No. 46,

"The Influence of the State and Federal Governments Compared From the New York Packet. Tuesday, January 29, 1788." Madison warns of the dangers to the Collective well being of the Country from parochial concerns for the collective well being of their own state:

"Every one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the State, to the particular and separate views of the counties or districts in which they reside. And if they do not sufficiently enlarge their policy to embrace the "collective welfare" of their particular State, how can it be imagined that they will make the aggregate prosperity of the Union, and the dignity and respectability of its government, the objects of their affections and consultations? For the same reason that the members of the State legislatures will be unlikely to attach themselves sufficiently to national objects, the members of the federal legislature will be likely to attach themselves too much to local objects. The States will be to the latter what counties and towns are to the former. Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual States."

FEDERALIST No. 58

Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands Considered Madison:

On the same principle, the more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation. The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will forever admonish them that, on the contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic.

In this passage, the infirmaries of collective meetings is described. And the reasons for the error. Representation can seem democratic when in fact is is oligarchic and directed from behind the scenes. And note Madison refers to the word "democratic" as a positive property of society.

In Federalist 59 and 60 Hamilton talks of elections. In his concept the State Legislatures would be choosing Senators and those legislators would:

"As to the Senate, it is impossible that any regulation of ``time and manner,'' which is all that is proposed to be submitted to the national government in respect to that body, can affect the spirit which will direct the choice of its members. The collective sense of the State legislatures can never be influenced by extraneous circumstances of that sort; a consideration which alone ought to satisfy us that the discrimination apprehended would never be attempted. For what inducement could the Senate have to concur in a preference in which itself would not be included? Or to what purpose would it be established, in reference to one branch of the legislature, if it could not be extended to the other? The composition of the one would in this case counteract that of the other. And we can never suppose that it would embrace the appointments to the Senate, unless we can at the same time suppose the voluntary co-operation of the State legislatures. If we make the latter supposition, it then becomes immaterial where the power in question is placed whether in their hands or in those of the Union."

Again the constitution was seen as a collaborative government where States would be to the Feds as Counties and Municipalities to the States. The goal was to moderate "passions" of the house by having a Senate that reflected State Legislatures and would thus be a bit immune to any excessive influence from Federal Authorities. And Madison weighed in with a similar argument

Madison or Hamilton in Federalist 63 "FEDERALIST. No. 63, The Senate Continued"

This one took some close reading to figure out because of the complex logic of the writing. It opens with Hamilton explaining the importance of having a Senate with a longer term of office than the House. He talks about the "defects" of the House of Representative and "desideratum" of the Senate with regard to one another

"I add, as a SIXTH defect the want, in some important cases, of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility. This remark will, perhaps, appear not only new, but paradoxical. It must nevertheless be acknowledged, when explained, to be as undeniable as it is important."

... and in the process he notes two principles of responsibility

"Responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents. The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation."

The author (Hamilton or Madison) is saying that one body should be more deliberative and able to form measures over a period of time.

"The importance of the latter description to the collective and permanent welfare of every country, needs no explanation. And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years. Nor is it possible for the people to estimate the SHARE of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years."

Hamilton wanted a Congress where the representatives would serve for 6 to a dozen years or more. He would not have been happy with term limits. The two year limit on militia wasn't to limit planning. It was because the Framers wanted the Army to be small and temporary if it needed to be big. These two founders envisioned a collaborative system where it didn't matter whether a cause was Federal, State or local as long as the scope was Federal, State or local. Later they would disagree about Federal power versus State power but that reflected failures do to unresolved conflicts not original vision. Long term projects such as roads, canals, rails and similar would be precisely where Madison would eventually issue his veto. But his Veto was issued in order to prod a constitutional amendment. He never got the amendment. His issue was sectarian advantage and the fact that some projects being sought by Senators and House members were being sought without the kinds of constitutional authority that the constituted charter (constitution) mandated and thus were liable to be too arbitrary, sectarian and not wholly in the national interest. Later Sectarianism would even divide that argument. But Madison stated the issue in his veto:

"The power to regulate commerce among the several States" can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress." [http://constitution.org/jm/18170303_veto.htm]

A constitutional Amendment was needed. Probably would have passed. And never was. Congress couldn't even agree on how to regulate money. But the Federalist papers were pretty clear on how congress should have functioned.

Madison or Hamilton then goes on to explain the attributes of (indirect) democracy and praise the concept behind the Senate:

From these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions. The true distinction between these and the American governments, lies IN THE TOTAL EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE CAPACITY, from any share in the LATTER, and not in the TOTAL EXCLUSION OF THE REPRESENTATIVES OF THE PEOPLE from the administration of the FORMER. The distinction, however, thus qualified, must be admitted to leave a most advantageous superiority in favor of the United States. But to insure to this advantage its full effect, we must be careful not to separate it from the other advantage, of an extensive territory. For it cannot be believed, that any form of representative government could have succeeded within the narrow limits occupied by the democracies of Greece.

The wording of the passage does seem to indicate that Hamilton or Madison wanted at least one body of the legislature, the Senate, to exclude direct representation. Specifically he wanted the Senate to exclude the representatives of local districts in their "collective" capacity from deliberating on long term projects where (as happened) the short term and parochial needs of individual congressmen would defeat long term planning efforts. On this subject the anti-federalist did have a point too since they warned of the Senate becoming an Aristocratic body and it nearly became one in the late 19th early 20th century.

John Jay weighs in next,

FEDERALIST No. 64 The Powers of the Senate From the New York Packet. Friday, March 7, 1788. JAY

"they have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures. This mode has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors."

So again we see that the founders don't seem to have liked the "people in their collective capacity" being manipulated by politicians and wanted a staid, aristocratic Senate that would make decisions more sedately. Of course in reality those aristocrats often make decisions on the basis of private needs and secret factions. But yes, the founders didn't like direct democracy mostly because they knew people could easily be manipulated by greedy grifters and the politicians they could buy.

FEDERALIST No. 66

Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered From the New York Packet. Tuesday, March 11, 1788.

"The security essentially intended by the Constitution against corruption and treachery in the formation of treaties, is to be sought for in the numbers and characters of those who are to make them. The JOINT AGENCY of the Chief Magistrate of the Union, and of two thirds of the members of a body selected by the collective wisdom of the legislatures of the several States, is designed to be the pledge for the fidelity of the national councils in this particular."

And later

"he truth is, that in all such cases it is essential to the freedom and to the necessary independence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity; and the security to the society must depend on the care which is taken to confide the trust to proper hands, to make it their interest to execute it with fidelity, and to make it as difficult as possible for them to combine in any interest opposite to that of the public good."

Again "collective" is not a dirty word in this comment.

FEDERALIST No. 76

The Appointing Power of the Executive From the New York Packet. Tuesday, April 1, 1788.

"It will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a SELECT assembly of a moderate number; or in a single man, with the concurrence of such an assembly. The exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else. When, therefore, mention is made in the subsequent reasonings of an assembly or body of men, what is said must be understood to relate to a select body or assembly, of the description already given. The people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men."

And:

"A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body."

FEDERALIST No. 78

The Judiciary Department From McLEAN'S Edition, New York. HAMILTON

"This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community."

FEDERALIST No. 83

The Judiciary Continued in Relation to Trial by Jury From MCLEAN's Edition, New York. HAMILTON

The excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. The strongest argument in its favor is, that it is a security against corruption. As there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, there is room to suppose that a corrupt influence would more easily find its way to the former than to the latter. The force of this consideration is, however, diminished by others. The sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing officers, and, acting individually, may be supposed more accessible to the touch of corruption than the judges, who are a collective body. It is not difficult to see, that it would be in the power of those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. In the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men who had been chosen by the government for their probity and good character. But making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained.

And later

"The propositions which have been made for supplying the omission have rather served to illustrate than to obviate the difficulty of the thing. The minority of Pennsylvania have proposed this mode of expression for the purpose ``Trial by jury shall be as heretofore'' and this I maintain would be senseless and nugatory. The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer. Now it is evident that though trial by jury, with various limitations, is known in each State individually, yet in the United States, AS SUCH, it is at this time altogether unknown, because the present federal government has no judiciary power whatever; and consequently there is no proper antecedent or previous establishment to which the term HERETOFORE could relate. It would therefore be destitute of a precise meaning, and inoperative from its uncertainty."

FEDERALIST No. 85

Concluding Remarks From MCLEAN's Edition, New York. HAMILTON

"I should esteem it the extreme of imprudence to prolong the precarious state of our national affairs, and to expose the Union to the jeopardy of successive experiments, in the chimerical pursuit of a perfect plan. I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?"

Hamilton is saying that "collective bodies" are both risky and beneficial structures. And later

"Every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest. We may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. Many of those who form a majority on one question, may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. Hence the necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the compact; and hence, also, an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act. The degree of that multiplication must evidently be in a ratio to the number of particulars and the number of parties."

In Conclusion

I did this work to make debate a little easier by providing some "common reference" for others to use. I have my opinions but I hope everyone reads the Federalist Papers and forms their own opinions. I'm going to reference this post in other posts. So I forgive anyone who skips it!

Militia Second Amendment and Democracy

In an earlier post I argued:

"In Switzerland, the purpose of the second amendment is on display. It's cantons are each prepared against invasions that nobody in Switzerland ever expects to happens, but they are prepared to keep their neighbors neighborly. The concept behind the second amendment was invented in places like Switzerland. The purpose of the second amendment was to avoid a standing army by having a strong militia. (http://www.snopes.com/politics/guns/switzerland.asp).

In Switzerland all the males are drafted. In the USA we have the National Guard, and then we have militia which often are no better than USA Nazi or fascist Brownshirts. I believe we need to bring back a nationally organized militia to avoid the brownshirts and to strengthen democracy. If we want that, maybe we need to imitate the Swiss."[Thoughts on Defending Democracy]

Since writing that article I started re-reading the Federalist Papers, especially enjoying the writings of Alexander Hamilton and I started understanding what he was really driving at. I've criticized him in the past but now I'm starting to appreciate him and wish he hadn't been murdered in 1804 by Aaron Burr. The man was brilliant, and he's been blamed for things that he tried to forestall. One of those things is the twin risks of a standing army and no standing army (chaos). He sought to create a collaborative government that would enlist existing States and local government in making a Federal Government that could keep the peace, improve and defend the country. His vision was in dialogue with the other founders, sometimes opposed sometimes congruent. That is why he switched sides in 1800. And doubtless why he was murdered. He had real integrity and that got him killed.

Federal Government Militia & 2A according to the Constitution

Article 1 Section 8 spells out these provisions for the militia:

"The Congress shall have Power To ... provide for the common Defence and general Welfare of the United States [US Constitution (COTUS) Article 1, sect 8];

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years [US Constitution (COTUS) Article 1, sect 8];

To provide and maintain a Navy;[ibid]

To make Rules for the Government and Regulation of the land and naval Forces; [ibid]

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; [ibid]

People think that "Militia" is the specific division of the Military and that somehow Army, Navy, Airforce, etc... are separate institutions. But in the framer's vision, at least that of Hamilton, Militia was seen as an expression of a collaborative structure intended to protect the States from each other and the people of the States from Tyranny: The Military as a Whole.

"The framers of the existing Confederation, fully aware of the danger to the Union from the separate possession of military forces by the States, have, in express terms, prohibited them from having either ships or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions." [Federalist 25]

Indeed Article 1, Section 10 of the Constitution says:

"No State shall ... keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power..."

On the contrary the President is the one given that authority to carry out the laws of Congress:

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States" [Constitution Article 2 Section 2 http://constitutionus.com/]

The constitution requires a division of effort and collaboration:

"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;" [Constitution Article 1 Section 8]

As I said collaborative. Even the appointment and training of the militia, which was delegated to the States was to be under the "discipline" prescribed by Congress. This is why the National Reserve is structured the way it is. The Constitution envisions collaborative government, not a rigid top down hierarchy, nor a chaotic temporary association of States.

Thus it is congress that has this powers:

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers"....[ibid]

Necessary for the Security of a Free State

Then of course we have the 2nd Amendment:

"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." [2nd Amendment]

This is a vision for collaboration. States are to be part of this, but Congress has the "General Role". Like an army with many colonels or divisions guided by a General Staff and a General. The President and Congress were intended to provide a general role for the military.

The Second Amendment is much more than a license to carry weapons for rednecks and insurrectionists. It is part of a vision of a collaborative government that would be able to "preserve the peace" and involve everyone.

But what constitutes the attributes and requirements for the "security of a free state" and why would a well regulated militia be one of them?

Collaboration with the States

To answer that question you have to go to the Federalist Papers to see what Hamilton said on the subject. Because Hamilton has a very clear vision of how the Federal Government should work and why it should work that way.

But first, there are some parts of the constitution that get passed over. One of the purposes of the Militia was:

"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

Hamilton was very clear that the reason we needed a "Well Regulated Militia" was to reduce the need for a standing army at the Federal level, but also to reduce the need for standing armies at the State level. Thus the militia was to be organized by the States and available to them when needed, but that organization was to be centered on the "magistry" of the United States. Not just to avoid tyranny from the Federal Government, but to avoid State tyranny, and even scarier states having standing armies and using them against one another. In [Federalist 22] Hamilton warns against the dangers of the establishment of State Armies:

"The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy." [Federalist 22]

Hamilton's vision of Military Service

Hamilton's vision of the Military Service is in Federalist 29 In it he refers to the essence of the concept of the militia:

"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." [Federalist 29]

Universal Service and "Militia of the Whole"

In this passage Hamilton is referring obliquely to the concept of the "militia of the whole", which is the notion that the "militia" is an expression of the body politic, all the able bodied men (and in modern thought, women) of the country. And the cost of maintaining a mobilization of the entire "militia of the whole" would be ruinous:

"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." Federalist 29

Hamilton is endorsing the notion of voluntary Universal Service. 2A not a prescription for folks being armed for the heck of it, but in this context of Universal Service. And that service involves the importance of disciplining (at least training folks to handle weapons safely and not shoot themselves in the foot. And what he describes next is the basis for the notion of a National Guard and a Universal National Service:

"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." Federalist 29

What is needed is a core cadre of well trained persons. Well trained volunteers and officers can both defend the country and prevent the need to have a giant standing army.

"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." Federalist 29

Hamilton advocates that we need Universal Service, with volunteers trained to be ready for any necessity. He knew that Universal Service is an antidote to Standing armies.

"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.''" Federalist 29

Regulating Arms

The Founders, especially Hamilton, did not endorse a loose confederation. Hamilton saw real danger in too much power exercised by the States, and importance of Union:

"the importance of Union to your political safety and happiness. I have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot which binds the people of America together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation." [Fed 15]

He wasn't calling for a Federal Government that couldn't enforce it's own laws:

"Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation."

And he clearly saw the reality that there is no choice between coercion and some kind utopian anarchy but also that the commonwealth has to have the ability to apply coercion.

"This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms. The first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it." [Fed 15]

Exceptional Principle

In a series of articles Hamilton reviews history of Federations from Greek times to his present moment with mention of the Netherlands and Poland -- which were both suffering disarray at the time he was writing. He summarizes his central point in Federalist 15:

"THE tendency of the principle of legislation for States, or communities, in their political capacities, as it has been exemplified by the experiment we have made of it, is equally attested by the events which have befallen all other governments of the confederate kind, of which we have any account, in exact proportion to its prevalence in those systems. The confirmations of this fact will be worthy of a distinct and particular examination. I shall content myself with barely observing here, that of all the confederacies of antiquity, which history has handed down to us, the Lycian and Achaean leagues, as far as there remain vestiges of them, appear to have been most free from the fetters of that mistaken principle, and were accordingly those which have best deserved, and have most liberally received, the applauding suffrages of political writers. [Fed 15]

Federations that depended on sovereign subdivisions or unanimity of consent eventually fell apart and dissolved into war as Federations formed by "uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common centre."

This was his "exceptional principle":

"This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: It has been seen that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war." [Fed 15]

Dangers of Standing Armies and of No Standing Armies

In Federalist 20 Hamilton warns [http://avalon.law.yale.edu/18th_century/fed20.asp]:

"I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting VIOLENCE in place of LAW, or the destructive COERCION of the SWORD in place of the mild and salutary COERCION of the MAGISTRACY"

Hamilton pretty much dismisses the notion that the States could possibly be sovereign and independent without the country dissolving into permanent civil war.

"Independent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory provision against military establishments in time of peace, to say that the whole power of the proposed government is to be in the hands of the representatives of the people. This is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in civil society."

Tyranny depends on Standing Army

Tyranny either at State or Federal level depends on the creation of standing armies. He warns that there is no viable alternative to the monopoly of force at the Federal Level because if the Federal Government doesn't have that power sectional factions or powerful states will step into the vacuum:

"It remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. Independent of this motive of sympathy, if a large and influential State should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause. Specious arguments of danger to the common liberty could easily be contrived; plausible excuses for the deficiencies of the party could, without difficulty, be invented to alarm the apprehensions, inflame the passions, and conciliate the good-will, even of those States which were not chargeable with any violation or omission of duty."

Sectionalism and Tyranny

Sectionalism proceeds from the ambitions and greeds of the leaders of any society. And the alternative to Union and commonwealth is the unleashing of the ambitions of such perverse and vicious persons:

"This would be the more likely to take place, as the delinquencies of the larger members might be expected sometimes to proceed from an ambitious premeditation in their rulers, with a view to getting rid of all external control upon their designs of personal aggrandizement; the better to effect which it is presumable they would tamper beforehand with leading individuals in the adjacent States. If associates could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encouraging the dissensions of a Confederacy, from the firm union of which they had so much to fear. When the sword is once drawn, the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of irritated resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extremes necessary to avenge the affront or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union." http://avalon.law.yale.edu/18th_century/fed16.asp

So while there is risk at both Federal and State level from standing armies. The only real alternative to them is the "Citizen Soldier" and a collaborative system of Volunteer Army. This concept can mitigate the risk:

"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 [e]ntrusted 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."

And without the checks and balances of a Union those "Force of Arms" solutions become something no individual or disorganized citizenry can resist. The country becomes vulnerable to usurpation and real tyranny. It can happen, People like Mussolini were able to use militia and collaboration from authorities to impose tyranny. Hamilton understood a disorganized and poorly trained militia would be helpless.

"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!"

That is enough for now.

E Pluribus Unum - We are stronger together

I can't resist arguing with trolls. Been doing it since the 90's when I didn't know what a troll was yet and had a friend who was a rational seeming Libertarian. Over time he revealed his underlying ideology as completely useless and distorted. At first I thought he knew what he was talking about and rarely challenged him, but eventually I realized that he and that entire ideology was full of snit. Those ideas put him in charge of a reform movement and then sabotaged that reform movement. I've since seen the same thing happen to the Occupy movement. I blame libertarianism for sabotaging reform efforts since the 70's. It's not that libertarians are bad people, but their ideology is an astroturfed ideology made up of astroturfed straw designed to subvert real change for the 99%. Other folks, thankfully can provide the details, but the point is that I have found that whenever I argue with doctrinaire libertarians I'm arguing with trolls. The core of libertarianism is extreme selfishness and individualism.

What they did do was to turn me back to rereading source materials. Been reading up on Locke, Paine, the Federalist Papers, Anti-Federalist Papers. There are a lot of them and one can't read them thoroughly unless one does it over a period of time. I've come to be in love with most of the founders. Scoundrels, curmudgeons, romantics, sometimes corrupt. If I romanticize them it's not as paragons of perfection but as human beings.

We are stronger together.

Robin Hood and Liberty

There was a tradition of piracy that informed our country from before the first colonies were officially planted. And our democracy owes as much to pirates and Indigenous, Robin Hood and Blackbeard, as it does to the Athenians and Romans. Robin Hood legends aren't contemporaneous with the legends around the Magna Charta for no reason. In real life authorities steal, and law abiding citizens get painted into outlaw corners. The Yeomen with their bowmen won their liberties with their bows and arrows. Robin Hood embodies that fact. The core of democracy isn't the militia, it's the General Assembly that the institution of militia enables. Towns and yeomen couldn't demand rights just because it was the right thing. They could demand rights because aristocrats have their roots as military commanders and can't force people to fight for them without their consent all the time. It isn't the power of the militia to shoot at aristocrats or cut off their heads that protected common rights for citizens -- thought that helped. It was the fact that aristocrats depended on raising troops from among the common people -- and they had to make deals. When the Aristocrats forced King John to sign the Magna Carta they were making a deal of exchange with him, and they had to make deals with their commoners to have the force to enforce that deal.

Unity and Liberty -- Sectional Conflict

There has to be a balance between central government and local government or their is conflict. And it's a two way thing. Hamilton explains why we want a "union" rather than divided neighborhoods and tiny warring states in his early writings in the Federalist Papers. In Federalist 6, Publius (Hamilton) notes the purpose of a unified Federation is to prevent war between States, quoting Abbe de Mably:

"An intelligent writer expresses himself on this subject to this effect: 'NEIGHBORING NATIONS (says he) are naturally enemies of each other unless their common weakness forces them to league in a CONFEDERATE REPUBLIC, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors.' This passage, at the same time, points out the EVIL and suggests the REMEDY." [http://avalon.law.yale.edu/18th_century/fed06.asp]

I suggest people actually read Hamilton in 6 through 15 as he explains the value of a Union to our liberties. We see how fractuous our country can be, without a Federal Union that factionalism would have been expressed in even more violent and bloody wars than we saw in the Civil War. More likely also we'd have central governments that live on conquest, funding their armies with loot drawn from the citizenry. We are trending towards something like that now, but that just argues for reforms. Hamilton's argument for Union was that Union provides a check on local jealousies and rivalries. Without a Union things would be far worse and ordinary citizens would have fewer liberties.

Unity and Liberty -- Local Tyranny

Hamilton argued that we needed a strong Federation to move the focus of government back to legislation for the benefit of the individuals of the commonwealth. Even in his time individual states tended to legislate for the benefit of the legistlators and the principle people of their state. Results such as the Whiskey Rebellion or Shay's rebellion come from legislation that disregards or even oppresses the majority of the citizens for the "private, separate advantage" of the few. And coercive states suffer that risk:

"The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist." [Fed 15]

We see this even with the "new" constitution he proposed. States treating some of their people like garbage and legislating for the benefit of local business barons rather than for the benefit of their commonwealth. But his remedy was in the power of a Supreme Court to uphold legislated rights and liberties and limit the power of states to fight one another or to oppress their own people. His entire argument about the history of intrastate conflict was to impress on the people the value of Union over disunion and civil war. We have either the choice of:

"COERCION of the magistracy, or by the COERCION of arms."[Federalist 15]"

We have seen the value of the "coercion of the magistracy" in remedies to segregation in the South and other misbehavior by state power against ordinary citizens. Our current civil rights laws reflect Hamilton's vision of replacing the risk of war and internal conflict with just courts. We can improve on this, but the benefits fo the principle involved are obvious. Hamilton reiterates this point over and over again. And in Federalist 22 he says:

"The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority."[Federalist 22]

And it's pretty obvious that he saw the Federal Government as a collaborative Unity where the Federal Government would check the states and the people would check the Federal Government and oversee officers at all levels of government.

Unity and Liberty -- Militia

Hamilton worried more about the ineffectiveness of the militia than it's effectiveness. Armed citizens are helpless individually against a corrupt and centralized Professional Army. We fought the British and might have lost the war but for an organized and centralized Militia. Militia supplemented with professional training and reserve capabilities is the equal of professional armies in defending the country but alone it is inadequate even for that task. It can be inadequate for invading foreign nations -- but that is something anathema to the vision of our founders and of most of us. And Hamilton warned in Federalist 26 that prohibitions on Standing Armies are insufficient.

"The Bill of Rights of that State declares that standing armies are dangerous to liberty, and ought not to be kept up in time of peace. Pennsylvania, nevertheless, in a time of profound peace, from the existence of partial disorders in one or two of her counties, has resolved to raise a body of troops; and in all probability will keep them up as long as there is any appearance of danger to the public peace."[Fed 25]

Which is why we have a National Guard that requires the State Governor to get permission of the President to use it. The Story of Pa pre-Constitution is also why these "foreign entanglements" we have now are toxic. Eternal warfare is even worse than keeping a standing army in time of peace. And historically we've seen time and time again how folks who are very stentorian (loud) about the constitution when it is convenient, treat it like toilet paper when they are afraid of, say, minorities. Police used in SWAT formation against demonstrators are essentially a standing army being used to repress dissent.

"The conduct of Massachusetts affords a lesson on the same subject, though on different ground. That State (without waiting for the sanction of Congress, as the articles of the Confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt. The particular constitution of Massachusetts opposed no obstacle to the measure; but the instance is still of use to instruct us that cases are likely to occur under our government, as well as under those of other nations, which will sometimes render a military force in time of peace essential to the security of the society, and that it is therefore improper in this respect to control the legislative discretion." [Fed 25]

Hamilton as an elitist saw a revolt by ordinary farmers and workmen as alarming. But there are times when revolts should alarm anyone such as when insurrectionists start engaging in lynchings and "ethnic cleansing" such as happens in the South. At such times a non-representative militia is as likely to be an agent of repression as an agent of liberty.

"It also teaches us, in its application to the United States, how little the rights of a feeble government are likely to be respected, even by its own constituents. And it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity..." [Fed 25]

The revolts mentioned were popular insurrections and the people involved should have been able to elect leaders and overthrow the government with elections, but many of them didn't have the right to vote. In the end, even with military forces they won the right to vote and the government made at least some concessions to them. The reason that happened is that they were needed in order to make any kind of military possible. The people are a check on both Federal Government and State Government -- to the extent that they can assemble generally and develop some unity.

The value of Militia is their connection to democracy. The original militia muster, was also the time when ordinary people could assemble and petition for their needs. Local Democracy has always been associated with the need to defend the state and pay it's bills. We are stronger together and divided we are weak. United we guarantee our liberties at the same time we provide for the general welfare. Divided we fight, die, are oppressed and destroy the tools of our happiness.

Further reading; Please read the Federalist Papers!

The Neighborhood and the City The Village and The Town

Last night, while the awful news about Ferguson was being broadcast I was researching the "Broken Windows" theory. Reading the original research and articles on the subject in the Atlantic's archives [see http://holtesthoughts.blogspot.com/2014/11/why-broken-windows-theory-was-corrupted.html] and I saw the same pattern of dysfunction and poor constitution of our Democracy in the way that the information had been applied. I had a "eureka moment" even as I was hearing the anguished cries of youths who feel trapped in neighborhoods where they are treated as colonies of the central government. The Atlantic article was talking about Ferguson! Our neglected towns, villages, countryside and cities all suffer from "broken windows", disinvestment, neglect. And people reacting badly to that sense of despair and abandonment. As the author noted:

"one unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing. (It has always been fun.)"

The article was suggesting something that local Police Departments are incapable of meeting. Why? Because they aren't local enough. And also why? Because general governments at the local level can't afford to provide the necessary services, and it requires a community to do so completely. As with everything else in our country what is happening in Ferguson's black neighborhoods and also in Ferguson's white neighborhoods, isn't a breakdown in democracy from too little democracy but a breakdown from a failure to replicate republican principles intelligently and fairly. The article states it:

"From the earliest days of the nation, the police function was seen primarily as that of a night watchman: to maintain order against the chief threats to order—fire, wild animals, and disreputable behavior."[Atlantic article]

We used to do it through informal Government agencies, but that was cludgy. Now we don't do it at all for our poor neighborhoods while the rich hire guards and put gates at the entrance of their neighborhoods.

"For centuries, the role of the police as watchmen was judged primarily not in terms of its compliance with appropriate procedures but rather in terms of its attaining a desired objective. The objective was order, an inherently ambiguous term but a condition that people in a given community recognized when they saw it. The means were the same as those the community itself would employ, if its members were sufficiently determined, courageous, and authoritative" [Atlantic article]

The Need for a Security Militia and Volunteerism

It's not like the need hasn't been identified. The Atlantic Article talks at length about the kinds of policing necessary to establish neighborhood order and create healthy neighborhoods. And he is describing a less professional and more volunteer police force. More street beat than police cruiser. More "Guardian Angels" than Officer Francis Muldoon. They put it in historic terms talking about "public order" versus solving crimes. The folks who created the Guardian Angels had hit on the problem. We need to have local law enforcement of local informal ordinances at a level below that of the general government.

I don't propose a return to older policing models. I have something larger in mind, starting with the creation of a local reserve police constabulary. The Atlantic Article talked about what happened when DC implemented Foot patrols:

"Five years after the program started, the Police Foundation, in Washington, D.C., published an evaluation of the foot-patrol project. Based on its analysis of a carefully controlled experiment carried out chiefly in Newark, the foundation concluded, to the surprise of hardly anyone, that foot patrol had not reduced crime rates. But residents of the foot patrolled neighborhoods seemed to feel more secure than persons in other areas, tended to believe that crime had been reduced, and seemed to take fewer steps to protect themselves from crime (staying at home with the doors locked, for example). Moreover, citizens in the foot-patrol areas had a more favorable opinion of the police than did those living elsewhere. And officers walking beats had higher morale, greater job satisfaction, and a more favorable attitude toward citizens in their neighborhoods than did officers assigned to patrol cars"

The beat officers weren't effective in arresting people. That was the job of detectives and they needed help from backup in cruisers to deal with major crimes or chase down infractions. But what they could do was to establish and maintain local order. The Atlantic article goes at lengths to envision what this order should look like and I talked about this yesterday but what we need are local constabulary. Local officers who can act as neighborhood watchmen, do patrols, and who have the "real police" as backups. We already have this in some suburbs. Trayvon was murdered by such a local constable. But you see that indicates why this needs to be part of a police reserve function. Zimmerman was a poorly trained reserve with no local authority. A young man like Trayvon saw him and he had no local authority, he probably saw him as some stupid punk sticking his nose in other people's business. A local constabulary would be as well trained as the police. Just volunteer, auxiliary and local.

But as the incident with Trayvon last year illustrated. Neighborhood watches aren't enough. The old method of policing where police wore police, judge and executioner hats at the same time was no more just than current policing. The Atlantic Article also notes that the old constables who were in place before "modern" professional policing were often brutal and the rules varied from neighborhood to neighborhood in arbitrary ways. What I'm talking about is applying the principles of replication and subsidiarism. The role of a beat cop is necessary to neighborhoods and local governance. But that should be the province of local governors and neighborhoods. Not the general government. The city "general government" should be there to support local government and to intervene when locals are over their heads, not as first response. The beat cop should be a local militia function not a citywide function. But the local militia should be organized as Hamilton and the constitution suggest:

"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"

We need a Judicial Militia, organized on constitutional principles. At the local level we need constables, but we also need volunteer barristers, local justices who can act as either impromptu judges or mediate disputes. No person should combine in their person "judge, jury and executioner" -- that is a constitutional principle that is behind separation of powers. If Ferguson, instead of having a large, scared and "professional" police force who never leave their cars except when arresting someone, had neighborhood watchmen and proctors or informal justices (this is the principle of volunteerism, one volunteers, is trained at State Level and maybe Federal Level, and then released into the local reserves) backed by local informal legislatures each headed by a councilman from that subdivision -- we'd see a different kind of law enforcement and more community participation. We also need a health and ER militia and to bring back volunteer fire and rescue companies, but that is for another days argument. The "Guardian Angels" were on the right path. Instead of the professionals fearing them and marginalizing them we should train them, pay them for "such part as employed" in Governing, and set them up as an auxilliary and adjunct to local police forces.

I have to keep this post short as I want people to read it. So I'll stop now, but we have to reestablish the primary importance and separate role of neighborhoods in governing cities, towns and the country.