Brandy Station Sesquicentennial Tour

I’m extremely sad that I’m going to have to miss this. Unfortunately, my son is too young to tag along, and I won’t be able to arrange childcare for that day since my wife has to work.

I’ve been to Brandy Station once with my wife for about an hour. We were coming home from spending a nice long weekend in Charlottesville, VA and I noticed that the battlefield was right along our route. Knowing what a nerd I am for the Gettysburg campaign, she allowed me to stop. Being a late afternoon in rural Virginia, we had the field all to ourselves.

It isn’t exactly what her idea of a battlefield is. There are no monuments. There are only a few informational signs placed by the Civil War Trust along a walking trail through rolling fields and on hills. Hard as it may be to believe today, this peaceful site was the setting for the largest cavalry battle to ever take place in the western hemisphere – a fitting start to the campaign that would culminate in the war’s bloodiest fight.

Reading about the battle is one thing. But to really understand what happened, you just have to see the ground for yourself. If you can make it, I highly recommend that you take part in this tour – it’s free for goodness’ sake (and send me pictures!)

Mini-Federalist #18 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #18, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_18.html

Originally published December 7, 1787 by “Publius” – who was in this case, James Madison (possibly with some help from Alexander Hamilton).

Of all the ancient confederacies that we know about, the old Greek “council of neighbors” seems to be the most like our current American system.

Each city-state kept its own government, and all had an equal voice in federal matters. The central government took care of whatever it thought was in the common interest of the members: declaring and running wars, acting as a court of last resort, putting down rebellions, and bringing other city-states into the fold. They ran a state-controlled religion (including courts associated with the temples). The central government was sworn to protect the city-states, and to punish both rebels and heathens.

This certainly seems like enough power, doesn’t it? But this amounts to more power than we gave our government in the Articles of Confederation. That ancient government controlled the religion of the people, and was supposed to use force against the member city-states when they got out-of-line.

Of course, it didn’t work out that way. These powers ended up being executed by officers appointed by the city-states themselves, so they were never really used to their full extent. The more powerful city-states weren’t kept in-line, and merely converted the federal government into one that served their interests. Athens’ domination of ancient Greece illustrates this pretty well.

More often than not, the officers of the more powerful city-states strong-armed those of the weaker city-states into going along with whatever the stronger states wanted. The more powerful side, not necessarily the right side, won out.

Even when fighting wars with Persia and Macedonia, the city-states didn’t work together, and instead many even worked with the enemy! When not at war, the states squabbled with each other constantly.

For example, after the war against Xerxes, the Lacedaemonians tried to kick out all the traitor city-states, but the Athenians blocked the attempt because it would leave them at a power disparity within the central government. This one example shows how inefficient and unjust this union was. Even though the smaller states were supposed to have an equal say, they ended up being co-opted by the larger, more powerful states in practice.

If the ancient Greeks had really been thinking about it, they would have used the peaceful periods to make their government work better. Instead, the larger city-states (like Athens and Sparta) became power-hungry and ended up inflicting more damage than Xerxes had managed to. All that mistrust and anger culminated in the Peloponnesian war, destroying the government in the process.

Weak governments always end up suffering from internal conflict when they aren’t at war. This civil unrest naturally invites foreigners to try to disrupt things. Philip of Macedon gained control of Greece by pitting the city-states against each other over minor conflicts, and allying himself with the weaker side. It then wasn’t difficult for him to bribe his way into a leading position in the federal government.

Had their government been better-constructed and more unified, the Greeks may have avoided this sequence of events, and later been a more effective check against the power of the Romans.

The Achaean league also serves as a good example for us.

This was a much tighter and well-designed union. Even though they had similar problems, they didn’t really deserve them.

Each city-state maintained its own sovereignty, elected its own leaders, and was equally-represented at the federal level. Their central government exclusively handled declarations of war, diplomatic relations (including all treaties), and the election of a central executive called a praetor. He handled all military matters, and ran the government when the full senate wasn’t in session. Originally, they used 2 praetors, but found having only 1 to be better.

The city-states had a common set of weights and measures, used the same money, and had identical laws. We aren’t sure how much influence the federal government had in this area, but we know that when new members came on, they immediately started using the laws of the pre-existing city-states. This is the major difference between their system and that of the Athenians and Spartans.

It’s a shame that we don’t have better records of how the Achaean government actually operated. If we had more information on the inner workings of their system, it would enlighten all our discussions about how federal governments ought to work.

What we do know though, is that there was much more peace and justice, and far less squabbling in the Achaean league than in the other Greek governments where the city-states retained all the powers. As the Abbe Mably observed, there were fewer problems in the Achaean republic BECAUSE IT WAS THERE TEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE CONFEDERACY.

Of course, it was not a totally perfect set up. You can see that by the way the government ended up dissolving.

Originally, the Achaeans weren’t a big player in Greece, but once the Amphictyonic confederacy fell to the Macedonians, it wasn’t long before that foreign influence tried to break them up, too. Some were actually invaded, others were eroded from within through political corruption. The desire for liberty was awakened by these events, and eventually came close to uniting all of Greece under the Achaean system. The Athenians and Spartans, worried about maintaining their own power, put a stop to this though. While the Achaeans were trying to form an alliance with the Egyptians and Syrians, the Spartans attacked and spoiled the plan.

So the Achaeans were in a bad spot: they either needed to give in to the Spartans, or try to ally with the Macedonians. They choose Macedonia (who was only too happy to “help”). They sent an army to defeat the Spartans and eventually occupy the Achaean republic. The Achaeans tried to remove the Macedonian occupiers by allying with the other Greek states, but this wasn’t enough – they needed foreign help again, and this time they turned to the Romans who came in and did the same thing that the Macedonians had just done. The Romans fostered animosity between the Greek city-states, and convinced each that they should be totally sovereign. This led to the total destruction of the last great hope for a free Greece.

I’ve explained all of this seemingly unimportant history because it serves as a lesson – not just about the makeup of these ancient governments, but that it is much more likely for a federal system to fail because of dissent among its members, than by a tyrannical leader in charge of it.

Mini-Federalist #17 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #17, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_17.html

Originally published December 5, 1787 by “Publius” – who was in this case, Alexander Hamilton.

There is another counter-argument to the Constitution that I haven’t addressed yet: the Constitution gives too much power to the central government – power that should rightfully stay with the States. Now, it’s certain that people will be power-hungry, but I can’t think of a reason why the federal government would be able to take away State power. Policing the States about civil matters, or local agricultural concerns isn’t attractive. Regulating trade, negotiating with foreign powers, money, war – these are the powers that tempt people, and the Federal government is the rightful holder of those powers already. Trying to assume the States’ powers would just be extra work, with no real benefit.

Even if we assume I’m wrong, the national legislature, elected by the people would be in a place to prevent this. It would be easier for the States to wrongfully gain power from the central government, than the other way around. The States will have more direct contact with the people, enabling them to convince the people that they are competent to have more power. This is reason enough to ensure that the central government’s power is well-protected.

The States get most of their power from the importance of the things they control.

Human nature is that people don’t care about what they can’t see. People care about their family more than their neighborhood; their neighborhood more than their town; and so on. The same is true of their State in relation to the Federal government (unless the State governments to a terrible job all the time).

People will naturally be attracted to their State’s government.

I’m not going to list out all the concerns that the States will have power over, but suffice it to say that there are so many, that the States will have an unending source of influence.

Of course, the States hold one trump card: the day-to-day running of criminal and civil courts. This power alone is the most visible defender of people’s lives and property, and a source of comfort and fear. Everyone has an interest in the dispensing of justice, and done well, the people will revere those who do it. Holding so important a function for the people, the States will no doubt become a threat to the power of the central government.

Since the powers that the Federal government has are so general and detached from the people, they won’t form that same bond with the Federal government. Only a few people will observe the good that it does for us.

We’ve seen this happen with every constitutional government in history.

The old feudal systems were obviously not confederacies, per se, but they did have smaller subordinate territories, all reporting to a central government. Each smaller territory had a ruler with almost total control over that territory. Ultimately, what ended up happening was that the individual “states” (if you will) grew more powerful in relation to the central authority and frequently went to war with one another. The central government was powerless to keep order or to protect the people. Anarchy reigned.

Sometimes the central government would end up with an extraordinary leader who could keep things under control, but this was the exception not the rule. There were even times when the central magistrate was completely kicked out. In those rare times when extraordinary leaders were able to take control, it was because the local governments were so terrible that the people fought back against them, too. If those local governments would have been good to their people, they might have remained in power.

I’m not just making this up – think of Scotland. The clan system (in which the local governments were more like families) meant that no central government could prevail there. That is, until the powerful central government of England asserted the more rational rule of law over them.

It’s a fair comparison to say that our States are much like the old baronies of the feudal days. Like I explained, this kind of relationship means that the people are pre-disposed to support them, and defend them against unwarranted power-grabs by the Federal government. Our States are in a power struggle, and (just like the old Baronies) have the upper hand in that struggle.

Looking at the history of confederacies is vital to understanding this part of their structure. We haven’t paid enough attention to the history though, and that’s been the source of many of our problems. Our ignorance has led us to choose the wrong side in the fight. We’ll go into this topic further in future papers.

Mini-Federalist #16 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #16, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_16.html

Originally published December 4, 1787 by “Publius” – who was in this case, Alexander Hamilton.

We aren’t the only confederacy to fall into the trap of only making laws for the member states, and not for individuals. All of the previous ones that we know of did this in some capacity. I’m going to lay this all out because I think it’s worth remembering. Before I do though, I’ll say that the Lycian and Achaean confederacies (by all indications we have) seem to have done this the least, and they are (not coincidentally) the most highly-regarded of the ancient confederacies.

This error in thinking leads directly to anarchy. Like I explained in the last paper, it is natural for the states to ignore the laws of the central government. When that happens, the only eventual outcome is military enforcement by the central government against the states – in other words, civil war.

But would military force be enough to get it done? If we don’t have a standing army, this enforcement won’t happen often, and even if it does, it will result in the individual States choosing sides, and the more powerful side will win (regardless of whether it is the pro-union side or not). It’s extremely unlikely that this would only affect one State – it will probably be a group of them who ignore the Federal power – so they will naturally form an alliance. Smaller States that are on the fence could get drawn into the conflict by a larger, more powerful neighbor (many times using less-than-honorable or less-than-truthful justifications – especially if those larger States are in the anti-union camp). States that can’t find allies here will surely look to foreign nations for support (and you know they’d be happy to see us squabbling amongst ourselves). This will snowball out of control quickly, and the Union will be lost.

This shows only the potential “violent” death of the Union, though. Right now, we seem to be on the edge of a different kind of dissolution. Our States are wise and friendly enough that they will not immediately jump to war – instead, they will just get tired of fighting to maintain the Union by themselves and will drop their participation to the level of the least-participating State. In that scenario, since every State is guilty of ignoring the Federal government, who is going to decide which State to employ military force against? Even so, how could you determine which States don’t have the resources to participate, and which simply don’t want to? It would be impossible to tell, and whichever faction gains control of the central government would be free to use force against whichever States they wanted.

It seems pretty obvious that a government like this – with a standing, roving army to enforce even it’s most basic provisions, is NOT what we want. But this is exactly the kind of government opponents of the Constitution would lead us to. Even if this was an idea that could be accomplished, it would end up as a police state. It’s a nonstarter, though. We simply don’t have the means to maintain an army the size we’d need to be able to enforce Federal rules against the larger States. This is mythical, David and Goliath-type stuff here!

Historically, even smaller confederacies haven’t had success with military force against disobedient states. It was only used against the weakest states, and most of the time led to terribly destructive civil wars where every state took sides against the others.

All of this evidence points to an obvious conclusion: if our government is to succeed, it can’t have influence over only the States (as our opponents believe) but must be able to govern citizens as individuals. Not relying on the States, it must have the power to enforce its own laws. Any powers entrusted to the Federal government must come with the power to enforce those powers – just like the States have.

Of course, some of our opponents might say that we could still end up in a situation where the States get in the way, and we’re right back to military force again.

But there is a difference between non-compliance and active resistance. If our system requires the States’ participation in order to have the federal laws enforced, then the States can render the federal government utterly toothless by simply not doing anything. This inaction could easily be disguised as a lack of resources or ability by corrupt state leaders. In this situation, the people wouldn’t necessarily know that the Federal government is being actively fought against.

If we set the government up so that the Federal government can enforce its own laws with the people directly, then any resistance by the States would be plainly seen as the unconstitutional intrusion that it is. The States wouldn’t be able to get away with such encroachments anymore unless all the people, courts, and other States went along, too.

What about a group of individuals in rebellion? We can handle that the same way we do today – the courts can handle enforcement for the federal as well as the State laws. Better still, the Federal government can bring a lot more resources to bear against rebellious groups than any one State could hope to. If one of these disturbances spread nationwide (which doesn’t happen often) it would basically amount to a revolution and break-up of our government, and there’s no way for any government to fully prevent that from happening. Since those events would be rare and impossible to control, we shouldn’t judge the proposed Constitution on whether it can deal with them.

Mini-Federalist #15 – The Insufficiency of the Present Confederation to Preserve the Union

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #15, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_15.html

Originally published December 1, 1787 by “Publius” – who was in this case, Alexander Hamilton.

In my previous essays, I’ve laid out the case for Union by explaining how important it is and pointing out the risks involved in dissolving the Union (an argument that is advanced with sometimes less-than-honorable means). I’m going to give you more insight about things we haven’t discussed up to now. If the path ahead seems unclear, remember that these are some of the most important and difficult questions that a free people can consider, and that the obstacles in our way are the result of small-minded people. I’m going to remove as many impediments as I can along the way.

Today, we’re going to talk about the “insufficiency of the present Confederation to the preservation of the Union.” Now, everyone agrees that the Articles of Confederation make a bad government (even opponents of the Constitution feel the same way). So why do I need to even mention this? Well, it’s obvious to everyone that we need to fix this system – there are serious problems with it.

Our current national state is just embarrassing. Our government can’t do the basic things it is supposed to do: We can’t pay back our debts from the Revolution (and seem to have no real plan to do so). Foreign powers are in possession of parts of our territory (and we’re powerless to do anything about it – we can’t even effectively protest the occupation). Spain is stopping us from using the Mississippi (even though a treaty states we should be allowed). Our government has no credit. Trade is at a very low level. The incompetence of our government means that no other nation will bother negotiating treaties with us. Real estate values have plummeted – not for any normal reason, but because people don’t have any faith in our government institutions to protect that property. Private credit has dried up for the same reason. I’ll spare you more examples, but can you think of an indicator of governmental failure that we aren’t currently experiencing? I sure can’t.

This sorry state of affairs has been produced by the same kind of thinking that the opponents of the Constitution want you to use. It’s bad enough that they’ve led us to the cliff – now they want to push us over the edge! Don’t be fooled. Don’t let them do it.

Even though everyone agrees that the current government doesn’t work, opponents of the Constitution are presenting a tired old solution that won’t work either. The ideas expressed in the Constitution are our only hope. Opponents acknowledge that the current government doesn’t have enough power, but they resist giving any more power to the government. When it comes down to it, they are afraid to change anything, so obviously we need to lay out exactly what is wrong with the Articles of Confederation so that it is clear that these aren’t minor issues, but serious structural problems (and of course, explain the causes behind them).

The first major problem is that the current system deals just with the States, and not with individuals. The federal government has no power to tax citizens, but only to ask for money from the States. Theoretically, these requests are binding law, but in reality the States just ignore them.

It’s amazing that even after all the problems they have caused, opponents of the Constitution still cling to their ideas (especially since a government that can’t touch the people doesn’t seem like much of a government anyway).

Obviously, there is nothing wrong with treaties and alliances. Every country in the world has entered into them (and broken them, too). In recent history, European countries have heavily engaged in creating alliances with each other – sometimes very complicated ones – in the hope that they would create lasting peace. Of course, all of these treaties were eventually broken. It just goes to show you how long a treaty will hold up when it is solely based on “good faith”, and the governments in question find themselves with other priorities.

Now if we’re really afraid of all this, we may decide to go on as 13 separate countries, leading us to all the problems I’ve already discussed, and forcing us into being friends and enemies simultaneously (depending on which foreign powers we fall victim to).

If we really don’t want that to happen, we have to think about our situation and create systems that will lead us to have a government, and not just a set of treaties. And the only thing that a government can really affect is individuals.

Governments make laws. Laws are meaningless without punishments for disobeying them. The enforcement of laws can either come from courts, or from raw military power. Courts can deal with individuals, but militaries have to deal with other countries. So, if we don’t have one government, capable of reaching individuals, the States will perpetually be at war with each other.

Originally, we were told that the States would all cooperate with the Confederation willingly, and there’d be no reason to expect problems. Our experiences have not shown this to be true. This point of view ignores human nature – why do we even need a government in the first place? Because people will not treat each other fairly all the time. What makes us think that a group of people (like the States) would be more responsible than the individuals that make it up? In fact, the grouping makes it worse as it tends to remove individual responsibility for the actions of the group.

Further, people who are in power want to remain in control of that power, and resist any outside limits placed on them – this is also just human nature. So in a confederacy, the individual states will naturally try to remove as much of the central government’s influence over them as they can. How can we expect them to work for the common good when it goes against human nature?

If the central government relies on their laws being executed by the individual states, those laws simply won’t be followed. The leaders of the States will only enforce laws that also mesh with their interests – disregarding the greater national good, in favor of local convenience. Every one of the States will do this. The laws of the Federal government would be worthless since they would vary from place to place. If you know how hard it is to get one legislature to agree on a solution to a problem, imagine how hard it is to get multiple ones, spread across a continent, to do it.

Our Confederation requires 13 members to agree. This just doesn’t happen, and the laws of the Union subsequently go unenforced. The States’ carelessness has, over time, ground the operation of the Federal government to a halt. Congress can’t keep things operating until the States can come up with a better idea. This has been a long time coming. Though some States did the right thing at first, how long can that hold up when everyone else is slacking? Why should only a few well-functioning States do all the work and bear all the costs? People can only fight their own selfishness for so long. Consequently, all the States have since withdrawn their real support of the Federal government, to the point that it’s about to collapse and smother us all.

Mini-Federalist #14 – Objections to the Proposed Constitution From Extent of Territory Answered

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #14, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_14.html

Originally published November 30, 1787 by “Publius” – who was in this case, James Madison.

So far, we’ve established that Union is better for security from foreign threats, peace at home, trade, and protection from “special interests“. The only common objection left to talk about is the size of our land area. Opponents of the Constitution are desperately trying to convince you that no single government could control a land as large as ours, but they are just grasping at straws.

I’ve debunked this thinking already. All I can say is this seems to be a product of confusing a “republic” and a “democracy” – thinking that a republic works just like a democracy. Of course, this isn’t true. A democracy is where the people directly make the decisions, a republic uses representatives of the people for this purpose. It is democracies that are limited in size, not republics.

There have been some prominent writers (themselves living under monarchy) who perpetuate this confusion in order to make monarchy seem better by comparison. By mixing the two definitions, they can make people think that republics have flaws that really only apply to democracies, and by the same reasoning that republics can only operate on a small scale.

It’s easy to fall into this trap. All the ancient governments (like Greece) were more purely democratic, and the few examples of representative government we have from Europe (like Britain) aren’t totally based on that concept – there are still monarchical elements. Here in America we have come up with something totally new – a purely representative form of government. It’s a shame that some people here don’t want to see this innovation fully come to pass.

The limit on the size of a democracy is the distance to the central place where everyone meets (and the limit on the number of people who can effectively meet in that place). In a republic, it is the maximum distance that will allow the representatives to meet often enough to conduct the government’s business. So does this Union fall within those limits? The length of the east coast is our largest distance to travel, and it hasn’t been a problem yet for representatives from all over the map to show up for meetings of the Continental Congress.

Before we go further, let’s define how large an area we’re talking about. Our borders are somewhat irregular, but on average it is about 868 miles north-and-south, by about 750 miles from the Atlantic to the Mississippi (we think). Comparing that to some European countries, a republic seems possible. We aren’t that much larger than Germany (where they assemble representatives from all across the country). Same thing in Poland until recently. Even in Great Britain (which is obviously smaller than we are) the northernmost representatives have as far to travel as our most distant ones.

As good as the evidence is so far, it gets even better.

First, we aren’t talking about a government that will control everything, but one that will only have a few limited powers that are national in scope. Most power will be left with the existing State governments. If we were talking about getting rid of the State governments entirely, then the opponents of the Constitution might have a valid argument. As it stands though, the proposed Federal government needs the States.

Second, we know that our current goal is to unite the 13 original States (and this is obviously possible, as we’re doing it already), but we also want to be able to deal with any new States that get formed from the largely uninhabited country to the west and northwest that we control.

Third, we’re constantly making fantastic improvements to our communication and transportation infrastructure and these will only get better over time. More and better roads & canals, along with increasing use of our rivers and harbors to transfer goods between the States is inevitable.

Fourth, and most importantly, practically every State has an external border right now. This will cause each State to invest resources in its own defense. The States that are farthest from the national capital may have a harder time sending representatives to meet about national issues, but without the Union, they will definitely have a worse time trying to go it alone against potentially threatening foreign nations on their borders. Sending representatives might be expensive, but war is even more so.

I’ll let you be the judge. You know how rough the path of disunion would be. Don’t let people tell you that we can’t get along as one people. Don’t let them tell you that this Union is impossible to maintain. We have shed too much blood together to part ways now. If anyone has radical ideas, it is those who suggest that we break up our Union under the guise of increasing freedom and happiness. Why should we fear the new ideas contained in the Constitution? Simply because they are new? We’ve never had a blind loyalty to tradition when we can see a better path. We can be a shining example of proper government for all the world. Think of the spot we’d be in if the Revolutionaries had been slaves to tradition! Luckily for us, they created something new – a government that had never existed before. Sure, it has some flaws – the work of creating a government from scratch is hard – but we can overcome and correct those problems. This is what the Constitution does, and that’s what you need to think about when deciding whether to ratify it.

A Note on Textual Interpretation

Some people think my reading of the Constitution is flawed by my reliance on what the founders said about it, and my use of the older meanings of the words the founders used in writing it. They say that the Constitution should be a “living” document, or that I shouldn’t be so “strict” in my interpretation. This has come up as a criticism of my argument in the recent article on the Second Amendment. I’d like to explain my point of view on this.

On the charge of being “strict”: the Constitution is a set of rules for how the government is supposed to work. As such, it should absolutely be read in a strict sense. The people who claim to be in favor of a more “nuanced” approach to our rights would be the very first ones to cry foul if they were thrown in jail because of their speech, or because of an improperly conducted search. The rules should be the rules. For everyone. The Constitution doesn’t exist to only protect the rights of those who agree with the people who are currently in power. That would be a meaningless protection.

As to the charge of putting undue stock in what the founders thought the words meant: This is the more serious problem, in my eyes. When interpreting and deciding whether a written law is good, should the author’s definitions of words be used, or the definitions decided on by any random future reader? Let’s think about this with an example:

Say you just moved from the U.S. and started working as a desk clerk at a hotel in London. When reading the policy and procedure manual during your first shift, you come across the following line: “It is of vital importance that all hotel guests be knocked-up in the morning by the front desk clerk at the time specified by the guest.” You notice that there is a list at the front desk of all the hotel guests with separate “knock-up” times listed for each. What is this rule asking you to do?

To the Brit who wrote the policy, “knock-up” means that you are supposed to *wake up* each guest on the list. As an American transplant, you would probably reach a totally different conclusion. Your cultural definition of that phrase would lead you to interpret the policy to mean that you are supposed to go and *impregnate* each hotel guest (especially if you’re the type of person who is pre-disposed to want to have sex with strangers – that’s called “confirmation bias”). I mean, apparently, they asked for it when they signed-in, right?

So ask yourself: Which is the right way to interpret this language? Which is the most fair? Which do you think would stand up in court during the eventual sexual assault trial? Should the author’s definitions be followed, or the definitions of whoever happens to read it later on?

Mini-Federalist #13 – Advantage of the Union in Respect to Economy in Government

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #13, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_13.html

Originally published November 28, 1787 by “Publius” – who was in this case, Alexander Hamilton.

We just got done talking about government revenue. A very closely-connected subject is government efficiency. If the government is more efficient, it will be able to stretch its revenues further. There will be nationwide problems – wouldn’t it be more efficient for 1 government to handle those, rather than 3 or 4 (or even 13 – although no one seems to advocate this anymore)? Even the governments of 3 confederacies would each need to be as powerful and have as many departments and officials as the 1 proposed by the Constitution – I mean, each confederacy would be larger than Britain is today! We certainly wouldn’t need a government 3-times the size to get the job done.

There’s another thing going on, too – if the system breaks down, we’re likely to fall into 2 confederacies, North (concerned with trade and shipping) and South (who couldn’t care less about those things). Pennsylvania and New Jersey are the swing States there, but they will most likely go to the North – and if New Jersey goes to the North, there’s no hope of a 3rd confederacy.

Since it’s clear that there will at least be some form of confederacy (or confederacies) if we are disunited, isn’t it better to have just one national government, supported by all the States, than to have national governments supported by a smaller number? How would that be cheaper (as opponents to the Constitution claim)?

Besides the number of departments needed, think about the huge number of people we’d have to have employed by the separate confederate governments to guard our borders against smuggling (since that activity would be a killer on tax revenue) and the massive militaries that would come up to defend against the threats we talked about in earlier papers? If we really consider it, we realize that separate confederacies will be worse not only for efficiency, but for trade, peace, revenue, and freedom.

Breaking Down The Second Amendment

One short, two-clause sentence. That’s all the 2nd amendment is.

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.

Pretty simple, right? Well, apparently not. Few parts of the Constitution are as willfully misunderstood as this one. Granted, that misunderstanding is well-intentioned, but that doesn’t make it right. Let’s break it down, shall we?

First of all, the 2nd amendment is obviously one of the first 10 amendments to the Constitution – the part that is commonly referred to (even back in 1789) as “The Bill of Rights“. The whole point of The Bill of Rights – the reason the Anti-Federalists insisted on creating it – was to secure individual rights against a tyrannical government that might be possible under the Constitution. So it would be pretty nonsensical to read one of those 10 amendments in a way that doesn’t secure an individual right, doesn’t it? But this is exactly what these (admittedly well-intentioned) people do. They tell us that your right to “keep and bear arms” relies on you being part of a “militia” – you gain the right only collectively. But now, I’m getting ahead of myself.

I mentioned before that there are two clauses. These are generally referred to as the “prefatory” and the “operative” clauses. The prefatory clause sets the table and lays out the driving purpose, and the operative clause gets the actual work done. We’ll begin the analysis with the operative clause since it is the easiest to understand (and where the real work of the amendment gets done anyway):

the right of the people to keep and bear arms shall not be infringed.

“the right” – The important word here is “the”. We aren’t talking about “a” right, but “the” right. Think about it this way: if I ask for “a” book off the shelf, that could be any of them. If I ask for “the” book, I’m talking about a specific one – one that definitely already exists. I’m not creating it out of thin air; it’s already here and pre-defined. We aren’t making a right with this amendment – we’re talking about one that is already firmly in existence.

“of the people” – So who does this right belong to? “the people”. Everywhere else in the Constitution where this phrase is used, it refers to everyone – not some nebulous subset like “the militia”. So, this right already exists, and everyone already has it. Madison himself reinforces this reading in Federalist #46, where he talks about the American people as a whole being armed. He sees this as an advantage that we have against tyranny as opposed to the people in the European countries whose governments don’t trust them with weapons. It’s also helpful to remember that Federalist #46 was published in January of 1788 – almost 4 years before the 2nd amendment was ratified. Further proof that this right was not “made” by the 2nd amendment.

“to keep and bear arms” – The right that the people have is to possess, carry, train with, and use (if needed) weapons. They don’t just have to keep them locked up in a display case.

“shall not be infringed.” – No one can take away or limit this right in any way. There is no exception given for “reasonable” restrictions or limitations. There is not a provision for “unless most people think it’s OK”. There is no distinction between hunting or defense uses. These rights shall not be infringed. Period.

Now to look at the first clause:

A well regulated militia being necessary to the security of a free state,

“A well regulated” – These days, people think that “regulations” is just a fancy word for whatever rules the government wants to come up with. Of course, this clause doesn’t talk about “regulations” per se, but about a thing that ends up being “well regulated” in the end. What does that mean? Think about it this way: if you put a flow regulator on a shower head, what does that do? It makes the flow regular – another way to say that would be consistent, or normalized. The whole point of having a well regulated flow of water is to make sure that that water pressure is consistent – the same every time you turn it on. The same sense of “well regulated” is used by the founders here. We need to have a militia capability that is consistently available and of reliable quality across the country, so people need to be familiar and proficient with weapons. They can’t have that level of comfort or availability for defense if they don’t have ready access to those weapons by owning them. It’s as simple as that. This reading is backed up by Hamilton’s argument in Federalist #29:

A tolerable expertness in military movements is a business that requires time and practice. It is not a day, nor a week nor even a month, 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 isn’t about them being members of something, or having a bunch of rules to follow – it’s about achieving a state of proficiency in the use of weapons, especially around others.

Also, like I talked about above, the word “a” is used here, as opposed to “the“. The other place in the Constitution where “militia” is mentioned (Article 1, Section 8), refers to “the militia”, and that Congress can make rules about it. So you see, the 2nd amendment isn’t talking about a specific group, but only laying out a theoretical scenario that would apply to any “free state”, further cementing this initial clause as being prefatory in nature.

“militia” – This is the word that causes the most confusion. This word makes people think that the right discussed above isn’t held by the people, but only by members of “militia” units (what people today think of as the National Guard, though this isn’t accurate in the historical context). If you aren’t a member, then you don’t have the right to have weapons. This is of course nonsense, as most gun control advocates insist that they don’t want to take hunting rifles away and hunting has nothing to do with militia membership. Luckily, the founders left us with a definition of “militia”. Less than 6 months after the 2nd amendment was ratified, Congress passed The Militia Act of 1792, which included this definition:

…each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia…

All white males aged 18 – 45, who were healthy and not in jail. That’s what the militia was. Mind you, this is not worded as eligibility for service, but these qualifications make you an immediate member in the militia, whether you like it or not.

“being necessary to the security of a free state,” – Everyone listed above had to be a member of the militia, and that militia had to be consistently available in all the states (“well regulated”) because we didn’t have a standing army (since we were a “free state”, not a police state) to provide security in the case of an invasion or domestic uprising. We may not have time to raise an army in a crisis and we need to have enough people who are able to defend themselves until we can.

So, taken all together, the amendment means basically this:

Since we need to have a competent militia that is available nationwide to defend us in case of an immediate crisis, everyone needs to have the right to keep and train with weapons so they may join in that militia effort if needed.

That’s all there is to it.

As an addendum: Gun control advocates will say that machine guns and other “assault weapons” have no place in modern society and shouldn’t be counted as “arms” because the founders couldn’t have envisioned them. There are two responses to this argument:

1) The founders couldn’t have imagined cell phones, Internet, 24-hour worldwide cable news, satellite communications, nationwide newspapers, radio, or even telegraphs. Should the 1st amendment speech protections not apply to those forms of technologically-advanced media as a result? Should 4th amendment search protections not apply to wiretaps, or email systems? Is there ANY other part of the Constitution that we interpret as being technologically-limited to 1791?

2) Yes, the founders allowed citizens to own smoothbore, single-shot, muzzle-loading long guns, and these seem weak to us today in the context of machine guns, grenade launchers, and the like. But these were THE MOST technologically-advanced personal weapons available at the time (along with being the standard issue weapon of the military in those days). The founders certainly could have limited the people to lesser weapons (bow-and-arrow, swords, knives, clubs) but they did not. They chose to allow the people the same weapons that the military had. Why shouldn’t that principle endure?

Opponents of the 2nd amendment are clear on the 1791 definition of arms, and want that one to be used. As demonstrated above, I don’t think they would be quite so happy living with the rest of that sentence as if it were 1791, though.

Commas have a purpose in the English language, and I don’t think it is to say “read the rest of this sentence like it’s 200 years ago”.

The Constitution lays out a set of principles that should be followed. It isn’t about living in the past – it’s about figuring out what the founders were trying to accomplish and applying that same thinking about principles to today. Freedom of speech applies just as much to your blog as it applies to your quill pen – it should be a concept that is technologically-neutral. The founders didn’t literally want us to be equipped with smoothbores – they wanted us to be as well equipped as the military. They didn’t want weapons limited to the militia, but weapons to be freely available so that anyone could join and be useful in the militia.

A sentence taken out of context (“for our own good”) can be a dangerous thing for liberty.

Mini-Federalist #12 – The Utility of the Union in Respect to Revenue

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #12, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_12.html

Originally published November 27, 1787 by “Publius” – who was in this case, Alexander Hamilton.

We’ve talked about trade. How about the Union’s effect on government revenue?

Obviously, trade generates a lot of money. Because of this, it is a chief concern of the government – everyone wants our commerce to continue to do well and even increase. You might think that there would be tension between the producers of goods and the exporters, but they’ve come to see that they need each other. Increased trade has other advantages, too – like higher property values. Workers, manufacturing firms, everyone benefits from better trade.

A country needs to have good-quality money, and you can only achieve that through trade. Look at Germany: they have good land for farming, and the most impressive precious metal mines in Europe, yet their economy is floundering because they have very little trade.

The best thing the Union would do for revenue would be providing a broader tax base. It is very difficult to raise a large sum of money by directly taxing the people – for one thing, they won’t allow it (and without sufficient revenue themselves, just plain don’t have the money to give), so the states end up with very little money as a result. This is no surprise to anyone who knows how other countries deal with these issues. Britain has a much richer population than we have, and even they have trouble raising money through direct taxes. They get most of their funding through indirect means: tariffs, imposts, and duties on trade. Shouldn’t we do the same thing here?

As it stands, we already have taxes on imports and these are going to be what we need to get us by in the future. This is because taxes on some goods and services produced within each state (we call them “excises”) aren’t very popular, and don’t generate much revenue anyway. Taxing personal property is too difficult, as it is easily hidden. There aren’t a lot of options.

Any system that would make tax collection easier and better must be a good thing. The Union accomplishes this goal.

Remaining as separate States, we’d have a hard time collecting taxes on imports from the other States. Since we are very well interconnected with rivers and we share a common language and culture, smuggling and black market trading would not only pop up quickly, it would be almost impossible to prevent. We’d be forced to implement elaborate border security patrols (France has these and they are huge – more than 20,000 men in all – and do we really want that many armed men wandering around?). Failing that, to compete with smugglers, the States would need to keep their import taxes low, and thus wouldn’t collect enough revenue. Since the other kinds of taxes are unworkable (as discussed above), this would leave the States in an impossible financial place.

On the other hand – think what the Union could accomplish. We’d have one border to worry about: the Atlantic coast. All foreign trade would need to come through that avenue, and there are only so many ports. A small navy could ensure that no unloading happens before coming in to dock and pay the taxes. It would be much harder to sneak through that border than it would be the borders between our States.

A single national government would therefore be able to keep import taxes higher than any state can by themselves. I don’t think any State has an import tax rate higher than 3% right now. France has theirs at 15%. Britain’s is even more than that. I’m sure we could hit at least 9%. As an example, think of the liquor we import: our whole country brings in about 4,000,000 gallons of the stuff per year. Even if we taxed it at only a shilling a gallon (which I’m certain people would be willing to pay), we’d generate £200,000 in taxes! Even if people aren’t willing to pay that much tax, wouldn’t it be just as well for our own economy (and morality) that we not have so much foreign liquor around anyway?

So what if we don’t follow the plan I’m laying out? Well we certainly can’t last long without tax revenue – that’s for sure. We might be forced to join back up with Britain! You know that’s not a realistic option. We NEED tax revenue – but from what source? Taxes on goods and services produced are unpopular (and in primarily agricultural states, insignificant). Taxes on property are hard to track, and may also make people feel hounded by the government – landowners would have to make up the slack (and we know that they alone would never be able to satisfy the government’s appetite for money). The answer is obvious: the people’s hatred of direct taxes, and our State governments’ inability to gather enough money with them, will come together and make plain the need for the higher taxes on trade that only the Union can produce.