Voices from the Past

Extremism in the defense of liberty is no vice. And moderation in the pursuit of justice is no virtue.

- Barry Goldwater


Remember, ignoring torture for the sake of security is not a defense of liberty. And ignoring crimes committed by the previous administration, for the sake of not rocking a political boat, is not justice.

The three-fifths Clause

Akhil Reed Amar provides a "biography" of the U.S. Constitution in his book America's Constitution. The book is an honest look at the Constitution, praising the Founders for the visionary and revolutionary aspects of the document, along with biting criticism of those constitutional provisions that perpetuated the Union's addiction to slavery. There are three clauses that Amar lists under this latter category:

• the three-fifths clause


• the fugitive slave clause


• the slave-trade clause of Article I, Section 9, which restricts Congress's ability to outlaw the importation of slave into the United States until 1808.
  

Amar argues these three clauses worked together to make the Constitution a pro-slavery document. While the effects of the second two provisions are more obvious, the impact of the three-fifths clause was more insidious, catching many of the Framers themselves by surprise (at least those from the Northern States). Allowing the Southern States to count slaves as three-fifths of a person for purposes of representation in the House of Representatives gave the slavocracy more Representatives than their numbers warranted because the South did not allow slaves to vote. Not only were slave owners rewarded with greater representation as they increased their numbers of slaves, they were given a higher ratio in the electoral college because each State's representation in that body is the number of representatives in the House plus its two Senators. This meant the slave States had a greater weight in electing the President than their numbers of free people warranted. Four out of the first five Presidents were from slave states or slave state sympathizers, and this effected the nominations of judges to the federal bench. Hence, the atrocious, extraconstitutional decision of the Dred Scott case. So the three-fifths clause ended up embedding incentives for the expansion of the "peculiar institution" within the structure of the federal government itself.

This clause is generally defended as a necessary compromise between the North and South to enable all thirteen States to adopt the proposed Constitution, but Amar thinks otherwise:

The three-fifths clause offered one solution. But in 1787 there may have existed at least one other plausible solution that could have satisfied both slavery interests and anitslavery institutions. Imagine, for example, that Gouverneur Morris had proposed that slaves should count as four-fifths in the first decennial census in 1790, three-fifths in 1800, two-fifths in 1810, one-fifth in 1820, and zero-fifths thereafter. Such a sliding-scale approach would have addressed the South's concerns about is immediate prospects as a legislative minority while ensuring a gradual transition away from a rotten ratio, with plenty of time for slaveholders to make adjustments. Because most Southerners expected their region's population to grow much faster than the North's, they could have anticipated that their rising share of free citizens within the union would tend to offset the effect of the declining rate at which they could count slaves.

Such a sliding-scale compromise would not have ended slavery per se, but at least the South would not have been incentivized by the constitutional structure itself to increase its dependence on slavery. Many in the South were leaning towards abolition in the 1780s as it was, so the absence of enabling rewards for maintaining and expanding the inhumane practice would have gone a long way to its eventual peaceful extinction.

We must remember that as great as the Constitution of the Founding Fathers was, the seeds of our greatest conflict, the Civil War, were sown within its words. As with any human endeavor, it should not be made into an idol by an unthinking, uninformed citizenry.

Thinking About Torture

Damon Linker at The New Republic has an insightful piece entitled Thinking About Torture. He gives expression to many of the thoughts that I have been struggling with around this topic - the fundamental belief that torture is wrong, but burdened with a nagging wonder about the extreme case of existential threat. Over the past seven years, the debate has been overly simplistic and polemic on both sides.

I've pondered for years what to say about the Bush administration's use of torture in the years after 9/11. So far I've remained quiet about the issue because I'm so uneasy about it -- not just about what the United States has done, but also about the reactions of nearly everyone who has commented on it.

Linker looks for guidance in this issue from Leo Strauss, author of Natural Rights and History, as the thinker who "is strongest in discussing what he called the 'permanent problems' of politics."

Under normal circumstances, the two parts of political morality cohere enough that the tensions between them rarely show themselves. But in extreme situations -- situations in which (in Strauss's words) "the very existence or independence of a society is at stake" -- there may be "conflicts between what the self-preservation of society requires and the requirements of commutative and distributive justice. In such situations, and only in such situations, it can justly be said that the public safety is the highest law."

I think, however, that the Bush Administration's downfall, and the inherent danger their course of action posed, was in its secrecy. "Executive privilege" and making decisions behind closed doors for reasons of "national security" are the watch words and cloak of every tyrant and imperial power in world history. Liberty and freedom flourish in the fresh air of the open daylight, so if a policy of torture is required for the self-preservation of society, then that is a discussion that the Bush Administration should have taken to Congress so that an open debate could have ensued. The few are not competent to decide for society if such extreme measures are required. The society in whose name the Government is asking to be able to commit such acts should have the right and obligation to authorize their use.

Everyone could have taken part in the conversation and we could have avoided all of the the Monday-morning quarterbacking we see going on now on "a bright, sunny, safe day in April 2009" -- as Director of National Intelligence, Dennis Blair, has put it. After the proper hearings and investigations, Congress could have made an informed decision to amend the law. The CIA could have then remained in the bounds of the law as they did what they needed to do, and field agents would now not be worrying if politics will drive their prosecution, after previous OLC assurances that they were acting legally. In addition, if walking into such dark territory is required, leaders are less apt to let the power go to their heads if they are being watched by society and Congress.

Bush Administration defenders will undoubtedly say that we would have had no time for a debate in the aftermath of 9/11 or that such a discussion would have tipped our hand to our enemies. But according to reports, the Government did not begin exploring "harsh interrogations techniques" until well into 2002. That would have given us several weeks (or months) to have this conversation. And even is the Administration needed to have more latitude more quickly, constitutional principles do not change just because they become inconvenient. Besides, Congress has shown it can work with speed in cases of national emergency. FDR received a declaration of war against Japan on the same day as the attack on Pearl Harbor. After 9/11, Congress passed the Authorization for Use of Force Resolution within three days. And if the United States had published such a policy change with the full support of the U.S. Congress (the representatives of the American people), then it would have undoubtedly worked to our advantage to strike fear in the hearts of al-Qaeda.

In the end, such an approach would have allowed America to head into the ugly days ahead with our eyes wide open, and no one would have been able to claim innocence or ignorance. It is all too easy to cry for the hides of those who kept us safe when we can claim blissful ignorance, even if that ignorance was willful at the time.

The Great Debate: liberty or death?

I have been listening to a course from The Teaching Company on the debate over the proposed Constitution between the Federalists and the Anti-Federalists. Professsor Thomas L. Pangle (University of Texas at Austin) teaches the course, The Great Debate: Advocates and Opponents of the American Constitution , which does an outstanding job of framing the debate between the two sides in its historical context and presenting the give-and-take discussion. The Federalist Papers are often presented as a self-contained treatise on the Constitution, but they were, in reality, part of a broader conversation, reacting to accusations and questions from the Anti-Federalists and lodging accusations and questions on behalf of Hamilton, Madison, and Jay (their authors).

The Anti-Federalists also presented some salient concerns in their opposition to the proposed Constitution. Among them:

• the proposed Constitution would lead to the establishment of a military industrial complex (not their words, of course), which would lead to America drawing unto itself the trappings of empire and shedding her commitment to republican virtue;


• juries would lose their right to interpret the law under the proposed Constitution and the federal judiciary would become an unaccountable aristocracy; and


• the states would eventually become mere administrative subdivisions of the federal government because states do not have an effective constitutional check against the federal government (Madison pointed to the fact that the states appointed senators under the design of the proposed Constitution, but this effective check was removed with the passage of the Seventeenth Amendment).

The Federalists consistently seek to recast Anti-Federalist concerns by focusing on the need for a strong central government to protect the national security of the United States. Whereas the Anti-Federalists were concerned to protect the classical republican freedom of the United States, which called for small communities governed by like-minded, virtuous citizens, the Federalists called for society to include a broader, more diverse territory whose sheer size would draw in competing interests (factions, to use Madison's term) to protect republican freedom at home and from attack from abroad.

I will spend a few upcoming blog posts looking at these debates in more detail, but what intrigues me from a birds'-eye view is the same basic question that we still deal with today, most recently in the days since 9/11. The Bush Administration thought it was necessary to engage in torture to protect America from further terrorist attacks after 9/11. While there is some circumstantial evidence that this policy protected the U.S. from further attacks, the brutality and dehumanizing consequences of these "enhanced interrogation techniques" are highlighted by Mark Danner in his piece US Torture: Voices from the Black Sites. Now the Obama Administration has prohibited these techniques from being used by U.S. governmental agencies because, as the new president has said, they violate America's core principles of liberty and commitment to human rights. But the President has said he'll do what is necessary to protect the United States, so one wonders what that would mean if another terrorist attack should befall the U.S.

So the question becomes - can a love and commitment of freedom and liberty coexist with institutions required to defend and make war? In the spirit of the Governance Imperative, these are two competing principles that must be balanced, but can the balance truly be maintained without detriment to either principle? Peace and security can be easily maintained through the use of excessive force, but freedom and liberty will suffer and be snuffed out. Witness Nazi Germany, Soviet Russia, Iran and North Korea. Liberty and openness can flourish, but society is then left vulnerable to attack and domination from the outside. Witness the classical Greek city-states, the Roman Republic, and the medieval Italian cities. In the latter cases, the republics were only able to save themselves by giving up liberty for ever more powerful militaries and dictators. Patrick Henry insisted on being given liberty or death, but most people will take security and peace over anything.

Whatever the prescient warnings of the Anti-Federalists, the Constitution has enabled the United States to strike an uneasy, if ever-correcting, balance between liberty and security. The ability of Americans to maintain this balance will be directly dependent on our continued fidelity to republican principles and the constitutional order.

Bonhoeffer on Bush

Dietrich Bonhoeffer, in his writings published as "Letters and Papers From Prison", provides mankind with a strong statement on morality and the relationship between a citizen and the State. While Germany was under Hitler's grip, there were well educated men who understood that their duty was to follow orders, unlike Bonhoeffer who understood that to allow an evil to be committed was morally the same as to commit the evil yourself. We can't blame this divide on education or its lack. Otto Thorbeck, the judge over Bonhoeffer's trial, had the same classical education as Bonhoeffer; studying Antigone, Iliad, The Oddyssy, and The Bible. Works which provide guidance as to the meaning of good vs evil, justice, wisdom, and duty. If you don't believe in absolute good or evil, you could easily make the case that it is permissible to act in a normally unjust manner when the circumstances permit, that enacting the injustice on the orders of others does not sully ones own soul, or in other words sometimes it's ok to kill.

Bonhoeffer suffered the punishment of the State rather than acquiesce to the idea that the State is the arbiter of what is Absolutely Good or Absolutely Evil. If the State says that a prisoner is a traitor and needs to be sentenced to death, it isn't the individual's place to disagree. That is what Thorbeck believed, he was just doing his duty. Bonhoeffer didn't have to be imprisoned but faced certain persecution with the conviction that what Germany was doing was wrong and to not speak or act out would be equally wrong of him, a sin of omission.

So, what questions does this pose?

- Whose place is it to determine what is good or evil?
- Does a State have a soul? a conscience?
- If a State is soulless, upon whose soul falls the burden of evil acts done in the State name?
- If an action is evil when committed by an individual, can a State, on its own authority, declare that act to be just and legal when done in the State's name?
- When is it the duty of a Citizen to disobey the State?
- How should we feel about a society that allows the State to commit evil acts?

I expect to follow this piece with others where the lessons of various books that have made history can teach us about life in the modern age. Next would be Homer's Iliad.