Author: John P. Caves III

A Well-Regulated Militia

Unaccountable ‘militias’ violate the Second Amendment by endangering the security of a free state.

“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.” —Second Amendment to the U.S. Constitution.

“The Congress shall have Power… 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.” —Article 1, Section 8.

Logically, there exist three legitimate purposes, broadly defined, for ordinary citizens to keep and bear arms. These ends are, as follows:

1. The use of arms for recreational pursuits, which include but are not limited to hunting, sport, outdoorsmanship, and collecting. These may be considered general liberties, which, like any other ordinary freedom, ought not to be prohibited except when their exercise would do harm to others, and which may be regulated so as to avert conditions that would cause such harm.[1]

2. Self-defense and, under certain circumstances, defense of property. This is a natural right, which every person possesses inherently.[2]

And,

3. Providing for the security of a free state as part of a well-regulated militia. This is the purpose stated in and forming the basis for the Second Amendment. It is, under the laws of the United States, and in certain conditions specified therein, a duty.

From this third purpose, it follows that—

In order to provide for the security of a free state, which is ruled by the consent of the governed and is respectful of individual liberty, a militia must:

1. Be well regulated; i.e., be properly trained, disciplined, and equipped for the tasks it is to fulfill, and have clear standards defining what its members may and may not do.

2. Be accountable to the people.

Only an elected government can act on behalf of the people. As John Locke, whose thought guided our Republic’s Founders, wrote in his Second Treatise of Government:

“The constitution of the legislative is the first and fundamental act of society, whereby provision is made for the continuance of their union, under the direction of persons, and bonds of laws, made by persons authorized thereunto, by the consent and appointment of the people, without which no one man, or number of men, amongst them, can have authority of making laws that shall be binding to the rest.”

In the United States, the legislative power is vested in Congress and in state and local legislatures.

Furthermore, it does no good for a militia to be accountable to the elected government of one city or State, if it goes to operate in a different one without having been invited there by the elected government of that community. To do so would be tantamount to invasion, unless—and only unless—it is sent there by a higher government that is representative of the people of both places.

Thus, according to the Constitution, Congress prescribes regulations for the militia, and the state governments implement those regulations by training the militia and appointing its officers. State governments may call forth the militia and control its operations within their State, unless the militia is called into the service of the United States (federal service), wherein it is temporarily directed by the federal government and may be ordered anywhere in the Union.[2]

State legislatures, as they possess the general powers of government, may choose to delegate some authority to local governments to recruit, train, and direct a part of the militia. In the past, towns and cities would raise units which were then integrated into the state militia upon their acceptance by the state government.

However,

The militia has evolved over time.[4] The Militia Act of 1903 divided it into two bodies, which remain in existence today: the National Guard, known also as the organized militia and comprised of volunteers, and the Reserve Militia, known also as the unorganized militia and comprising all able-bodied male citizens between 17 and 45 years of age.

The National Guard fulfills most of the old militia’s former roles: namely, to augment the regular forces of the United States in times of war, to defend each State against internal violence, and to assist the civil authorities in the case of natural disaster.

Moreover, regular state and local police forces—which did not exist as such in the early days of our Republic—now hold primary responsibility for protecting their localities from internal violence, in addition to their ordinary duties of law enforcement.

As a result, there are few circumstances that would warrant calling forth the unorganized militia today. It is therefore unlikely that ordinary citizens shall be called on to provide for the security of their State.

Nonetheless,

That fact does not imply that the right to keep and bear arms is obsolete, nor that the concept of a militia is entirely archaic; it only means that there is not presently a great need for it. The logic of the Second Amendment, that there is value to a free state in having an armed populace from which to draw a broad-based militia, has dormant force. Under exceptionally dire circumstances, such as a foreign invasion or a prolonged breakdown of central authority, it may indeed become necessary to raise a militia that is accountable to the elected government of a State, or even a municipality.

Yet,

The preceding logic does mean, unequivocally, that Americans ought under no circumstances to form ‘militias’ that are not directly accountable to the elected legislature of a municipality, a State, or the Union. Self-proclaimed militias which answer only to themselves, even if they claim to represent some imagined idea of the popular will, are mere militant groups, not the militia defined by American tradition and the Constitution of the United States. Their multiplication today endangers the security of a free state. It is thus in direct violation of the Second Amendment.

This danger has been made clear by recent events. A young man crossed a state line to travel to Kenosha, Wisconsin, armed, at the behest of such a self-styled militia, and killed two people there. He may yet be acquitted of the narrow charge of murder, if reason can be given to show that his immediate act of killing was done in self-defense.

But his larger action, and that of the group he associated himself with, brazenly defied the spirit of the Constitution. He was not defending his own home, which as a private citizen he might claim a right to do. Indeed, he could not claim to have been defending his own city, or even his own state: for he was a resident of Illinois, not of Wisconsin. The ‘militia’ whose call he answered is in no way accountable to the elected governments of Wisconsin or Kenosha; indeed, the city authorities had expressly turned it away. Neither it nor he had any business pretending to provide ‘security’ there. In doing so, they defied the popular will.

The act that occurred soon thereafter in Portland, Oregon was similar in nature. An individual  traveled from his home in Washington state to Portland, where he fancied himself to be providing ‘security’ for protests, and there killed a man. He had no more business there than his counterpart did in Kenosha; nor is the group he associated with, the self-styled ‘antifa,’ any more accountable to the elected governments of Oregon or Portland than the ‘Kenosha Guard’ is to the elected government of that city.

That ‘antifa’ is more diffuse than the self-proclaimed militias of the extreme right does not make it fundamentally different in character. It is a militant group, unaccountable to the people, whose affiliates seek to ape the roles of a militia while assuming none of the obligations of one. Such groups, whether they profess political alignment with the left or the right, ought to be equally unwelcome in our Republic.

Furthermore, the argument that militants were justified in coming to Kenosha and Portland because they had to protect the people there who were, at that moment, in danger, is wholly unconvincing. That violent unrest was occurring, or had occurred, in both cities is undeniable. But if the people of those cities needed outside aid, their elected government—and only their elected government—had the authority to request it on their behalf.

Indeed, in Kenosha, an accountable response to the rioting soon unfolded. The city government requested that the State of Wisconsin send in the National Guard. The state government responded: the Wisconsin National Guard deployed, followed by National Guard units from other States, which the government of Wisconsin had itself requested. Within a week, they restored the peace.

Therefore,

Responsibility for securing a free state begins and ends with a freely elected government, and a well-regulated militia is only the latent force of that government, mobilized at its call and no other’s. Those Americans who aspire to militia service as a civic calling ought thus to consider joining the National Guard. Others ought merely to be ready to answer their government’s call, should it come, and be content with the fact that it may not come in their lifetime. None ought to associate with unaccountable militants.

In regard to the present situation in these United States, it is with local and state governments that responsibility for dealing with domestic unrest primarily lies, and those authorities ought now to concentrate their minds on securing their citizens’ lives and property. Riotous behavior, and the militancy that it attracts, has gone on long enough. Although the task at hand may be made more difficult by federal intervention, which, though broadly lawful, is at present largely unconstructive, the time for excuses has passed. The outcome of the general election this November, and the faith of the people in elected government generally, may hinge in large part on whether the streets are soon calmed. Discipline and perseverance are needed; the future of the Republic is at stake.

[1] When hunting is done for subsistence, it assumes the station of a natural right and carries greater moral weight.

[2] Locke articulates it well in his Second Treatise of Government:

“…it being reasonable and just, I should have right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion… that will be sure to destroy him whenever he falls into their power.”

In regards to defense of property, lethal means may be morally justified if the property concerned is necessary for the sustenance of life, such as food in a time of famine, or a vital medicine; and also if the attack on property is indistinguishable from an assault on one’s life, such as a mugging, or a burglary if the homeowner or his/her family is inside.

In the words of Locke:

“This makes it lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life, any farther than, by the use of force, so to get him in his power, as to take away his money, or what he pleases, from him; because using force, where he has no right, to get me into his power, let his pretence be what it will, I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away everything else.”

It must be noted here that Locke, and I, speak only of moral right; the actual laws of the United States and the several States differ on the particular circumstances in which lethal self-defense is permissible.

[3] As occurred, for instance, when National Guard units from several States were deployed to New Orleans in response to Hurricane Katrina.

[4] For a more detailed accounting of this history, I recommend the excellent short piece at the following link:

A Short History of the Militia in the United States
Written by the editor of AngryStaffOfficer.com, a blog on military-related topics.

September 11th, 2001

All who were old enough know where they were on 9/11.

I was in history class, in middle school. My teacher stepped into the hallway. When he came back, he turned on the TV, and we saw the Twin Towers billowing smoke. He did not tell us what it was, and the school’s televisions were old and grainy. Could it have been part of our lesson?

In my next class, the principal made an announcement on the intercom. She told us that the World Trade Center had been attacked. Shortly afterward, I was summoned to the main office by name. I did not understand why. They had not told us about the Pentagon.

My father worked in the Pentagon then. He had been on the other side of the building; he was unhurt. I learned that from the school secretary, even though she, too, was reluctant to tell me much more until my mother arrived to bring me home. It was understandable. Confusion reigned, and ours was a school in Montgomery County, Maryland—20 miles from Washington, D.C. Who else might have had a family member in the Pentagon that day?

My family was fortunate. Too many others were not.

Let us remember them. Let us remember 9/11. And let us remember that, then, these United States of America were united. United before our enemies; united before our friends; and, as the fallen may attest, united before our Creator.

Photo courtesy of the National Park Service.

Governance by Executive Order

Congress ought to reexamine the authority that it has delegated by law to the executive branch.

“No Money shall be drawn from the Treasury, but in consequence of Appropriations made by Law.” —Article 1, Section 9 of the U.S. Constitution.

“He [the President] shall take Care that the laws be faithfully executed.” —Article 2, Section 3.

That the COVID-19 pandemic has inflicted severe harm in these United States is an unavoidable fact. Equally unavoidable is that this crisis shall require vast public expenditure before it subsides; and because the several States now stand at or beyond the limit of their fiscal capacity, it is inevitable that those funds shall have to be provided by the federal government. Congress has made one such provision already, but has thus far faltered on the second attempt. A large section of our Union’s citizens and residents await a resolution.

Yet,

Governance by decree is contrary to the preservation of our Republic. No republic may long survive without adhering to the separation of powers, and only Congress is vested by the Constitution with the power to make appropriations of public funds. The executive may not withdraw funds from the Treasury, nor deprive the Treasury of tax revenue, unless authorized by law. To attempt otherwise would be an unlawful assertion of absolute and thus tyrannical power.

However,

The series of executive actions taken on August 8th, purportedly with the aim of alleviating the personal economic injury caused by COVID-19, is not necessarily unlawful, for it makes use of authorities delegated by existing law to the executive branch.

Of these, the executive order supposedly extending a moratorium on residential evictions is an empty document, which merely directs the executive bureaucracy to “consider,” “identify,” and “review” various objects and is devoid of concrete measures.

The presidential memorandum ordering the deferment of student loan repayments invokes a discretionary authority that seems, with reasonable clarity, to have been delegated by Congress to the Secretary of Education for a purpose applicable to the present situation: “A borrower of a loan made under this part shall be eligible for a deferment during any period not in excess of 3 years during which the Secretary determines… that the borrower has experienced or will experience an economic hardship.”

The memorandum ordering a deferment in the collection of the federal payroll tax makes use of an authority delegated by law to the Secretary of the Treasury to disregard tax liability for up to a year “in the case of a taxpayer determined by the Secretary to be affected by a federally declared disaster.” The final action, involving the extension of special unemployment benefits, attempts to draw money from a fund previously appropriated by Congress to provide for disaster relief.

Whether the two latter actions are lawful depends on whether the laws governing federally declared disasters were intended to be used in such a way. That question shall sooner or later be settled by the courts.

Nonetheless,

The motive of the incumbent President in regard to these actions may justly be called into question. As often before, his use of executive orders appears to be primarily for the purpose of staging political theater. He could well have taken vigorous measures more clearly consistent with the lawful powers of his office earlier in the course of the virus’ spread, so as to mitigate the severity of the present crisis;[1] but he did not act earnestly then. Half-measures today, done with doubtful authority, shall bring less benefit to the people in comparison.

Furthermore, this President has attempted before to draw money from the Treasury in open defiance of the separation of powers. In 2019, he ordered the expenditure of additional public funds for the construction of barriers on our Union’s southern border after Congress had unambiguously declined to appropriate the sum he had requested for that purpose. This action, illustrative of his Presidency as a whole, showed a contemptuous disregard for the spirit of the Constitution, if not yet—for we still await the Supreme Court’s judgment—the letter of the law.

Therefore,

Rather than simply decry each new order, it is time for Congress to reexamine the authority that it has, over the past century, delegated by law to the executive branch. Such allowance has perhaps been made too generously in the expectation, hitherto mostly well-founded, that the President would take care that the laws be faithfully executed. Presented as we now are with a pattern of bad faith, itself the logical progression of an era in which successive Presidents reached too readily for the executive pen, the preservation of our Republic may best be ensured by the legislature again reserving to itself a greater part of its constitutional authority.

It may well be that the laws governing national disasters—which by their very nature require a flexible and timely response—are not those which most warrant such revision. But if their misuse awakens the public to the broader delegation of legislative authority that permeates myriad aspects of life, then it shall have done a public good. In the meantime, Congress, too, ought to do a public good: by reaching agreement and reinvigorating the federal response to COVID-19.

[1] Chief among these would have been coordinating the acquisition and distribution between the States, on a massive scale, of protective and testing equipment.

Recent Events in Portland, Oregon

Caprice, like lawlessness and injustice, must be countered by responsibility, steadfastness, and duty.

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

On May 31st, I closed my observations with the hope that, in places where rioting persisted, lawful authorities would stop it only with proportionate means, without vindictiveness, and without harm to peaceable protesters. In cities throughout our Union, most violence soon subsided, due largely to the discipline of the many who came to demonstrate peacefully.

Yet in Portland, Oregon, hazards to liberty have arisen from the federal response to the few who persist with violence. That response, in the whole, has been marked by excess, vindictiveness, and harm to peaceable protesters. Grave principles are in play; but a shallow show is also being made of them, which works insidiously to erode all sense of principle. It ought not to be followed blindly.

The details of the events in Portland are complex, conflicted, and best understood by those who are well-acquainted with that city; I shall not attempt to establish them all. A few, however, do not appear to be seriously disputed by the parties involved:

1. That crowds have regularly formed around a federal courthouse, and at various times, some individuals have shot fireworks at it, set fires around it, and attempted to break into it.

2. That federal agents from U.S. Customs and Border Patrol, and perhaps other agencies, have been deployed to Portland and have been operating from the courthouse.

3. That those federal agents have not been readily identifiable from their uniforms or vehicles.

4. That those federal agents apprehended at least one person beyond the courthouse grounds by forcing him into an unmarked vehicle, and then held him at another location without charge.

5. That the State of Oregon and the City of Portland opposed the abovementioned actions of those federal agents, and the State of Oregon filed a federal lawsuit to restrain them. The Mayor of Portland urged the federal agents to depart the city.

6. That the President of the United States has encouraged the actions of those federal agents and threatened publicly to deploy them to other cities across the Union. He subsequently ordered such a deployment, over the objections of some of those city governments.

With these facts in mind, I have a few new observations to make.

First,

The act of unidentifiable agents apprehending a man on a street at some distance from the scene of unrest, taking him to another location in an unmarked vehicle, and holding him without charge, appears in every way to be violation of the right of the people to be secure in their persons against unreasonable searches and seizures. Whether it is in violation of current law, the court will decide; but if it is found not to be, then Congress ought to consider whether that law is in keeping with the Constitution’s spirit, and modify it. Abductions do not befit a free government.

Furthermore,

In considering the rights of the federal government to deploy agents in a State or city without the consent of its government, two portions of the Constitution come to mind:

“The Congress shall have Power… To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;” —Article 1, Section 8.

“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.” —Article 4, Section 4.

Here the founding intent is less clear. My layman’s view is that Article 1, Section 8 grants the federal government full rights to send its forces, without state or local consent, to enforce federal law and to suppress rebellion. This view was established in the Insurrection Act, which was passed in 1807, within living memory of our Republic’s founding. Article 4, Section 4 of the Constitution describes the Union’s obligations to the States; it therefore renders the federal government duty-bound to respond to unrest in a State if the state government requests aid, but does not expressly prohibit the federal government from doing so if the state government does not request such aid.

The legal questions in relation to the events in Portland are more numerous and complex. I desire only to make the point that federalism in these United States does not entirely preclude the exercise of federal authority when State and local governments do not wish it. Indeed, in the past, that authority has been used for good: federal agents, including Border Patrol officers, were deployed to suppress riots against James Meredith’s admission to the University of Mississippi in 1962.

Today, that same power is being exercised with a more capricious intent. Yet the misuse of it can be checked without challenging the power itself. The Constitution may vest in the federal government the power to deploy forces into the States to execute the laws of the Union, but the States may hold the Union to its laws: by bringing suit, as Oregon has done, against the agencies involved, and so ensuring that their actions are scrutinized in court.

Nonetheless,

That federal agents have, and ought to have, the legal authority to protect a federal courthouse from attempts at looting and arson is beyond reasonable dispute. The Constitution, as is clear from the passages quoted above, grants no indulgence to lawless violence. If the City of Portland desires federal agents to depart, the best way it may now achieve that end is to show that it will not allow the courthouse to be damaged by those individuals who still reject the dignity of peaceful protest.

This conclusion may seem unfair. The deployment of federal agents provoked more unrest, the city authorities might say, after a period when violence was seemingly declining; why, then, must the city once again take on the unenviable task of defusing it?

Because caprice, like lawlessness and injustice, cannot be overcome with more of the same. It must be countered by responsibility, steadfastness, and duty. The government of Portland is faced with a new opportunity to show that, unlike the present federal administration, it can calm its streets without excess, vindictiveness, or harm to peaceable protesters. It ought to seize that chance, and the city’s residents ought to support their elected government in doing so — thereby showing that they, in demanding justice, are determined to uphold principle.

Finally,

All citizens of these United States ought to recognize that these events, as with so much else today, are being used in an act of showmanship, and it is in following that act that the greatest danger lies. Though the would-be arsonists in Portland may fancy themselves revolutionaries, they on their own present no formidable rebellion; though Mr. Trump may be a despot at heart, he does not yet — even now — possess the unrestrained power to be one in practice. Lacking the ability to impose their will alone, these actors’ scripts are meant to push Americans to extremism, and thus to their support. Mr. Trump, in particular, has a nervous eye on the coming election.

Their common wish is to make citizens lose faith in the very idea of free and dignified government, and that is where tyranny begins. We must stand firm.

Oklahoma and the Five Tribes

The several States and the American Indian Nations can coexist as partly-sovereign entities within our common Union.

“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of fed­eral criminal law. Because Congress has not said other­wise, we hold the government to its word.” —Opinion of the Supreme Court, delivered by Justice Gorsuch.

This ruling (linked below), somewhat overshadowed by the Court’s pronouncements on Mr. Trump’s tax returns the same day, significantly affects the relationship between the State of Oklahoma and the Five Tribes that have resided there since traversing the Trail of Tears in the 1830s: the Creek, Cherokee, Chickasaw, Choctaw, and Seminole.

The case began with a jurisdictional challenge by Jimcy McGirt, a Seminole man convicted in state court of raping a four-year-old child; it ended with the Supreme Court determining that the Muscogee (Creek) Nation reservation, where the crime took place, had never been disestablished by law and thus remains in existence today. The same logic is likely to apply to the other four tribes, whose combined reservation lands would cover most of eastern Oklahoma, including the city of Tulsa. That area’s population today is about 10-15% American Indian.

The ruling will compel Oklahoma, the federal government, and the Five Tribes to think through the complex federalism that exists where federal, state, local, and tribal authority overlap on the same territory. Its immediate legal effect seems to be that Indians charged with crimes in Eastern Oklahoma will be tried in either tribal or federal courts, rather than state courts, and that all Indians residing on that reservation land may be exempted from some state tax. The State would continue to perform its normal functions otherwise.

There is a feeling of justice fulfilled, in that the ruling affirmed the lasting duty of the United States to uphold its laws and treaty obligations, even where those obligations have been ignored or subverted in the past. Yet there are also issues regarding local governance, particularly in zoning and land use, that could arise from it. Important principles are at play: the right of the Indian Nations to exercise their due amount of sovereignty over those lands, and the right of the area’s (now mostly non-Indian) inhabitants to have a say in their local government.

The parties involved seem to be off to a productive start: federal attorneys, the State, and the Five Tribes have announced that they are all working together on a new legal framework for the area concerned, which they will present to federal authorities in Washington. They have a chance to show our Republic and the world a new model for how the several States and the American Indian Nations can coexist as partly-sovereign entities within our common Union. And the first step may be to show that they can still hold Mr. McGirt accountable for his crimes.

https://www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf

On the 4th of July, 2020

“WE, therefore, the Representatives of the UNITED STATES OF AMERICA, in GENERAL CONGRESS, Assembled, appealing to the Supreme Judge of the World for the Rectitude of our Intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly Publish and Declare, That these United Colonies are, and of Right ought to be, FREE AND INDEPENDENT STATES… And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.” —The Declaration of Independence, signed July 4th, 1776.

George Washington read the Declaration of Independence to the Continental Army in New York City on July 9th, 1776, leaving those words in his soldiers’ ears. A week before, a formidable British force had begun to land on Staten Island. Two months later, the Continental Army was driven out of New York and across New Jersey. Small victories at Trenton and Princeton brought short-lived respite; defeat followed until Philadelphia was captured and the Revolutionary soldiers were on the brink of starvation. Only after they emerged from the ordeal of Valley Forge in 1778 did the tide begin to turn. Triumph at Yorktown came in 1781, more than five years after the Declaration’s signing.

The Declaration of Independence was not a pronouncement of victory; it was a statement of intent. Its signing on July 4th, 1776, was not a moment of triumph, but the beginning of an arduous trial. Americans then had to work to achieve the independence asserted by the Declaration; Americans ever since have had to work to fulfill the self-evident truths expressed within it. On the 4th of July, we, as citizens, rightly celebrate our Republic’s independence. In this year of trial, we should also resolve ourselves to carry out the hard work that is necessary to preserve and perfect it.

Thus, for the support of that Declaration, we could well-use this occasion to again mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

Representation for Washington, D.C.

The inhabitants of Washington, D.C. ought to be represented in the government of the Union, but not necessarily as a State.

“The Congress shall have Power… To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.” —Article 1, Section 8 of the U.S. Constitution.

The bill recently passed by the House of Representatives to confer statehood upon Washington, D.C. proposes a solution to an old problem: that, in the District of Columbia, a great number of U.S. citizens — now more than 700,000 — do not possess a vote in Congress.

It is clear, as a matter of republican principle, that the inhabitants of Washington, D.C. ought to be represented in the government of the Union. Just governance obtains the consent of the governed, and in a republic that consent is obtained through the election of representatives who vote on their constituents’ behalf in the legislature. This logic applies as much to the federal capital as it does to the rest of the country. A city must have permanent residents in order to function; those residents are citizens of the United States; and citizens of the United States ought to be represented in Congress.

Some form of representation for the residents of Washington, D.C., furthermore, appeared to be the Founders’ intent. As James Madison wrote in Federalist No. 43, two years prior to the District’s establishment in 1790:

“And as [the District] is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them…every imaginable objection seems to be obviated.”

More than two centuries later, that intention remains partially unfulfilled. The parts of it that have been realized came but slowly: Washington, D.C. received Electoral College representation with the ratification of the 23rd Amendment in 1961, and was allowed an elected local government with the passage of the District of Columbia Home Rule Act in 1973. Congressional representation, the last remaining part, is long overdue to the permanent residents of Washington, D.C.; and it ought to be provided, in some form, without further delay.

However,

The Founders did not intend the federal capital to be a State. Their reasoning rested on sound logic: that no State ought to have undue influence over the Union by having jurisdiction over the grounds on which the government of that Union convenes. As Mr. Madison also wrote:

“The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. …Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the [Union].”

The present bill proposes to address this imperative by creating a new State out of the residential and commercial areas of the city, while maintaining the present federal District in a reduced area comprising the principal federal buildings: the Capitol, White House, and Supreme Court, as well as the Department of State and certain other federal agency headquarters, and the National Mall and its monuments. It would thus in theory ensure Congressional authority over the effectual seat of the federal government, defined as the buildings most essential to that government’s operation.

This solution, to the layman’s eye (such as my own), appears constitutional: Article 1, Section 8 requires only that Congress exercise exclusive legislation over the seat of government of the United States, and that the maximum size of this seat be ten miles square; it does not specify a minimum size, and does not prohibit the reduction of this area, so long as Congress gives its assent.

Yet a practical question arises as to whether a new State of Washington, D.C. that controls most of the existing capital city might nonetheless have undue influence over the federal government, even if its territory does not include the main federal buildings. For instance, federal officials would have no option but to live and pay tax either in that State, or in Maryland or Virginia; the principal federal buildings would likely rely on public services, such as garbage collection, that are provided by the new State; and, as Union Station is outside the reserved enclave, the federal government would not be guaranteed uninterrupted access to a transportation hub.

Or, as Mr. Madison put it:

“This consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence.”

The inverse of this issue, that a State of Washington, D.C. might itself be unduly dependent on the federal government, and thus unable to exercise the partial sovereignty that statehood entails, also warrants examination. The present District’s water supply, for instance, is controlled by the Army Corps of Engineers. Its economy, moreover, is singularly reliant on the federal bureaucracy — even more so than those of Virginia or Maryland.

The present bill does not fully address those considerations, but instead leaves them to an appointed commission that would be convened only after the bill becomes law.

Furthermore,

The claim that the bill would not require a constitutional amendment seems misleading. Admitting a new State, it is true, only requires a majority vote of both houses of Congress. Yet the admission of Washington, D.C. as a State would necessitate repeal of the 23rd Amendment, which established a special formula for the District’s Electoral College representation. If that Amendment were to remain in effect after a new State is formed from the greater part of the city of Washington, it could be construed as to transfer the present District’s three electoral votes to the residents of the federal remnant — which, insofar as the White House is the only residential building in that enclave, would consist mainly of Presidents and their families. The demerits of giving incumbent Presidents such direct influence over their own re-election are self-evident.

The repeal of the 23rd Amendment would itself have to be a constitutional amendment, as the repeal of Prohibition was. It ought to be timed so as to take effect at the same moment that a new State is formed. The current bill makes no such provision, instead arranging only to expedite Congressional consideration of the repeal.

Alternatively,

It is conceivable for the inhabitants of Washington, D.C. to be accorded voting representation in Congress, as is their due, without the District assuming the reserved powers of statehood, which could undermine Congressional jurisdiction over the federal capital. In a federal republic such as ours, we associate representation with the partly-sovereign status of statehood; yet in the centralized governments of Europe, the subordination of administrative districts to the central government does not preclude their inhabitants’ representation in the national legislature. Such a status would appear to be what Mr. Madison had in mind for the District of Columbia.

Accordingly, contained in these essays (No. 9 – On Citizenship) is a proposal that Washington, D.C. — and, separately, the smaller U.S. territories overseas — be granted voting representation in the House of Representatives as a special district, without being made a State. This proposal was founded on the logic that the House is meant to represent the people directly, whereas the Senate is meant to represent the States; and thus representation in the House need not be contingent on statehood. Such an arrangement would require a constitutional amendment to enact, though it would also allow the 23rd Amendment to remain in place.

Other alternatives appear inadequate. A return of most of the present District to Maryland — which originally ceded the territory — would incur the same considerations of undue influence, and it would require the District’s residents to relinquish their separate political existence, maintained for more than two centuries, which they understandably seem reluctant to do. It would furthermore require the assent of the Maryland legislature, which itself might not be forthcoming. Proposals for residents of Washington, D.C. to count as Maryland residents for representation, while leaving the territory outside the jurisdiction of the State of Maryland, would distort Maryland’s politics and muddy the concept of statehood generally. Bestowing both House and Senate representation on the District without conferring statehood, as the unratified District of Columbia Voting Rights Amendment of 1978 proposed, would confuse the federal aspect of our Union by altering the Senate’s role of representing co-equal and partly-sovereign States.

Therefore,

Washington, D.C. ought either to be admitted as a State if — and only if — a bill doing so can convincingly address the practicalities of undue influence and make its enactment contingent on repeal of the 23rd Amendment; or else voting representation in the House of Representatives ought to be provided for the residents of Washington, D.C. by constitutional amendment, while retaining Congressional jurisdiction over the whole District.

If there are adequate practical means to ensure that Washington, D.C., as the bill proposes, may be admitted to the Union “on equal footing with the other States in all respects whatever,” without undue influence over the federal government, then those means will arise in the course of scrutiny and debate. In considering such solutions, it would be valuable to draw from the experience of the federal government’s dealings with Virginia, to whose jurisdiction Arlington and Alexandria were returned from the District of Columbia in 1847 with the acquiescence of Congress. The Pentagon is located in Virginia, as are the metropolitan area’s principal airports.

To this end, the Senate ought to consider the present bill on its merits, amend it as necessary, and vote on it; and then propose a new bill or constitutional amendment if the present measure fails to pass. If this Senate refuses to debate this bill out of partisan disdain, then the matter ought instead to be taken up by the next Congress.

Finally,

Whether or not this bill, or a variant of it, becomes law, it is worth noting that its sponsors chose a worthy name for the State which would arise from it. Washington, Douglass Commonwealth preserves the form, “Washington, D.C.,” that the city’s residents and all Americans have long been accustomed to; it continues to honor George Washington, who watched over our Republic in its infancy; and it bestows deserved recognition on another great American, Frederick Douglass, who gave our Union, then in its adolescence, the advice it needs to mature with dignity today.

Equal Protection of the Laws

It is evident that the 14th Amendment is not being uniformly upheld; but our Republic is not backward or malevolent.

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” —Section 1 of the Fourteenth Amendment to the U.S. Constitution.

With these words in mind, I have three points to make:

1. It is evident that the 14th Amendment, and thus the Constitution of the United States, is not being uniformly upheld. This is clear in two particular cases and implied in the aggregate.

George Floyd and Ahmaud Arbery were deprived of their lives without due process of law. Whether or not they actually committed the offenses that their killers accused them of is irrelevant; they were never given the chance to defend themselves in court. Mr. Arbery, after his death, seems moreover to have been denied the equal protection of the laws, insofar as his killing was not prosecuted for months. The argument that Mr. Arbery was killed in self-defense because he attempted to seize a weapon does not have moral weight. Mr. Arbery was cornered by armed strangers; he could not be sure of their intention; he himself possessed an inherent right to self-defense. His decision to fight may have been tactically ill-judged, but it was morally justified.

In the aggregate, credible figures have accumulated over the past several years that black men are far more likely than others to be the subject of law enforcement action, and form a disproportionate share, relative to their proportion of the country’s population, of those killed in the course of such encounters. Likewise, they comprise a disproportionate share of prison inmates. This suggests unequal enforcement of the laws, resulting in many instances in the deprivation of life without due process of law, and perhaps also the deprivation of liberty with inadequate due process.

That is not to say that all law enforcement action involving black men, or any other subset of Americans, is unjust. Rather, it is the persistent disproportionality that is suspect. To be comfortable with those aggregate figures, one would have to assume that one type of American is substantially more inclined to criminality than the rest of his countrymen. That assumption is contrary to the principle, fundamental to republican thought, that human nature is universal and constant; and thus the failings of human nature ought naturally to be found in similar proportion across ethnic or racial groups.

Or, as Frederick Douglass put it more than a century ago:

“I want to be understood at the outset. I do not pretend that negroes are saints or angels. I do not deny that they are capable of committing the crime imputed to them, but I utterly deny that they are any more addicted to the commission of that crime than is true of any other variety of the human family.” (“Lessons of the Hour” Speech, January 9, 1894).

This problem, as the date of Mr. Douglass’ speech reveals, is not new. But the fact that it lingers today ought to trouble all patriotic Americans, whose loyalty is due to the Constitution of the United States and the principles it contains.

Nonetheless,

2. Our Republic is not backward or malevolent. It has reformed itself again and again over the years, gradually making moral progress. It has done so because its citizens are free and willing to protest its failings, and to cast their votes in pursuit of its improvement. That fact must not be taken for granted; citizens of many other countries cannot or do not speak out, protest, or vote. It is also why the Constitution must be taken as a whole. Its different parts reinforce each other: upholding the 1st Amendment shall aid the fulfillment of the 14th, and vice versa. The converse is also true: discarding the entire “system” because one part is not working as it should shall only render the deficiency more difficult to solve.

Put differently, a country at any given time is the sum of its people and the principles it is founded upon. Our country’s principles – many expressed in the 14th Amendment – are good. That leaves us citizens, the imperfect implementers of those principles, at fault for its failings. Yet self-hate rarely accomplishes anything. Hard work does. So do not despise your country; expect better of it.

However,

3. Wanton destruction impedes the betterment of our Union. Sympathy with the grievance is not a reason to condone riots. Yes, murder is a more severe crime than destruction of property; but in no way does the murder of some permit or excuse burning the livelihoods of others, especially those who are entirely unconnected to the crime. Rather, rioting is directly contrary to the 14th Amendment: it deprives citizens of life, liberty, or property without due process of law. It is unjust; it must stop.

If it will not stop, but instead must be stopped by lawful authorities, that ought to be done only with proportionate means, without vindictiveness, and without harm to the peaceable protestors who are exercising one of their most fundamental liberties.

This is merely my appraisal of the principles. As this issue plays out on the streets, in the courts, and in the halls of government, it is more complex, more emotional, and more dangerous. But the principles ought nonetheless to guide us.

https://apnews.com/bee77c500c44054c48448d6f1f26

Free Speech and Social Media

Vital decisions involving the extent and limitations of free speech ought to be made by Congress, not firms or the bureaucracy.

There have been a pair of difficult issues in the news this week that relate to some of the principles in this essay series. I’ll start with the easier one, speech and social media. Three points to make:

1. There is a principled case for limiting the ability of social media firms to interfere with users’ posts. This executive order (second link below) partially makes that case before it reveals a more likely intent to flood Twitter with libel lawsuits – which does not encourage free speech.

Put simply, however, the principled argument is this: large social media firms, when facing anti-trust complaints, have argued – persuasively – that they need to function as monopolies, because the network effects produced by virtually everyone using their platform are necessary to provide their services as forums in which people can connect and exchange views. Facebook, in other words, would be less valuable to the public were it instead two separate firms, each of which had a smaller number of users. (After all, in such a world, the New Model Federalist would have even fewer readers than the handful I’m grateful to have now.)

Fair enough. But if the value of the service – and the reason it ought not to be subject to antitrust action – is that it functions as a public forum, then it ought not to impose restrictions on speech exceeding those established by law; and in the United States, the First Amendment ensures that public restrictions on free expression are fewer and narrower than those imposed by social media firms at present. Furthermore, the few restrictions that must exist in law can justly be determined only by an elected legislature that represents and is accountable to the public. The managers of social media firms, however noble they profess their intent to be, neither represent nor are accountable to the public.

However,

2. This order, and the manner in which it came about, is marred by petty vindictiveness and malevolence. This can be seen plainly in its seventh full paragraph, beginning with “Twitter.” No republican government, elected to serve the whole country and all within it, ought to wield its power spitefully against specific individuals or firms. Such conduct, at best, debases the dignity of government; at worst, it becomes a means of repression. It is undoubtedly poor leadership.

And,

3. Vital decisions involving the extent and limitations of free speech ought not to be made by the bureaucracy, as this executive order would have it. For the same reason abovementioned – that the legislature, and only the legislature, represents the people and is vested by them with the power of making laws – this matter ought to be resolved by Congress.

These points are simplified for brevity – the reality is complicated, and there is plenty of scope for disagreement.

https://www.reuters.com/…/trumps-executive-order-targets-po…

https://www.whitehouse.gov/…/executive-order-preventing-on…/

Memorial Day, 2020

“We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But, in a larger sense, we can not dedicate—we can not consecrate—we can not hallow—this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced.” —Abraham Lincoln, a portion of his remarks dedicating the Gettysburg National Cemetery on November 19, 1863; known commonly as the Gettysburg Address.

Of all the words appropriate for Memorial Day, the Gettysburg Address – which Lincoln delivered at the dedication of the Gettysburg National Cemetery – always stands out to me. Not just because it’s Lincoln or because it’s the Gettysburg Address, but because it makes us think about what’s expected from the living to truly honor the fallen.

Let us take this Memorial Day, and all of them, to rededicate ourselves to the task Lincoln urged upon us: “…that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.”

Photo courtesy of the National Park Service.