Armies…. being necessary to to the security of a free State….

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

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

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

 

The Essential Problem with the Unitary Executive

Not So Eerie Parallel

By Kelly

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

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

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

 

American Localism

American Localism

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

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

Progressive, anti-globalization activist David Korten considers it "to be a near-universal truth that diversity is the foundation of developmental progress in complex systems, and uniformity is the foundation of stagnation and decay.... Our challenge is to create a locally rooted planetary system biased toward the small, the local, the cooperative, the resource-conserving, the long-term, and the needs of everyone." Strong local economies "encourage the rich, flourishing diversity of robust local cultures and generate the variety of experience and learning that is essential to the enrichment of the whole." (David C. Korten. When Corporations Rule the World, second edition. San Francisco: Berret-Koehler Publishers, Inc. and Kumarian Press, 200-, pp. 240-241.) A key principle in achieving these ends is that "governance authority and responsibility are

located in the smallest, most local system unit possible to maximize opportunity for direct, participatory democracy." Such communities are strongest when they have strong social capital, for which locally owned businesses are a key element. (Korten, pp. 245, 251.)

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

(Lucas, pp. 60-61)

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

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

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

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