“There need not be much integrity for a monarchial or despotic government to maintain or sustain itself. The force of the laws in the one and the prince’s ever-raised arm in the other can rule or contain the whole. But in a popular state there must be an additional spring, which is VIRTUE.” —Charles de Secondat, Baron Montesquieu, The Spirit of the Laws, 1748.
“‘Tis substantially true, that virtue or morality is a necessary spring of popular government. The rule indeed extends with more or less force to every species of free Government. Who that is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric?” —George Washington’s Farewell Address, 1796.
To maintain a republic, there must be virtue: among the people,
and especially among their leaders. It must at least be outwardly displayed;
but it is so much the better if it is held in those leaders’ hearts. Its
importance infinitely exceeds that of policy. So long as both candidates in an
electoral contest possess virtue, then we as citizens may decide the election
on the basis of their particular plans or positions. But if only one possesses
virtue, then the best interest of our Republic enjoins us to favor that
candidate without equivocation, regardless of the flaws in their governing
agenda.
Because, in the words of a philosopher well-acquainted with
both good and bad men:
“Because the reordering of a city for a political way of life presupposes a good man, and becoming prince of a republic by violence presupposes a bad man, one will find that it very rarely happens that someone good wishes to become prince by bad ways, even though his end be good, and [it very rarely happens] that someone wicked, having become prince, wishes to work well, and that it will ever occur to his mind to use well the authority that he has acquired badly.” —Niccolo Machiavelli, Discourses on Titus Livy, 1517.
It may be asked, what is this virtue? It is, certainly,
commitment to liberty and free government. Yet nobody can be truly committed to
liberty who does not possess a deeper and more fundamental virtue. That virtue
is decency; it is compassion; it is love. As it was articulated a long time
ago:
“If I speak in human and angelic tongues but do not have love,
I am a resounding gong or a clashing cymbal. And if I have the gift of prophecy
and comprehend all mysteries and all knowledge; if I have all faith so as to
move mountains, but do not have love, I am nothing. If I give away
everything I own, and if I hand my body over so that I may boast but do not
have love, I gain nothing.
Love is patient, love is kind. It is not
jealous, is not pompous, it is not inflated, it is not
rude, it does not seek its own interests, it is not
quick-tempered, it does not brood over injury, it does not
rejoice over wrongdoing but rejoices with the truth.
It bears all things, believes all things, hopes
all things, endures all things.
Love never fails.” —First Letter of St. Paul to the Corinthians, 13:1-8a.
Ask yourself, in full honesty: Do both candidates possess this virtue?
I have asked that question, and answered it. And so I will be for Mr. Biden, with all his faults. Because throughout his long life he has shown virtue, and his rival, only malice.
“The History of the present King of Great-Britain is a
History of repeated Injuries and Usurpations, all having in direct Object the
Establishment of an absolute Tyranny over these States. To prove this, let
Facts be submitted to a candid World.” —The Declaration of Independence.
The impending Presidential election does not present an
ideal choice to those whose foremost concern is the upkeep of our Republic’s
might and liberty. But it does, in my view, present an easy choice.
The history of the incumbent President of the United States
is a history of repeated injuries and usurpations, all tending in instinct
toward—though not yet mature in execution—the establishment of a capricious
tyranny over these States. To show this, let facts be submitted to our
beleaguered nation:
He has shown contempt for the freedom of the press,
of religion, and of peaceable
assembly; and his professed support for free speech extends only to the
freedom of his own
speech and the speech of those who praise him;
He has openly voiced his desire to remain in office past
the term limit imposed by the Constitution of the United States, and he has
several times refused to say that he would accept the results of elections
in which he is a candidate and commit to a peaceable transfer of power,
should he emerge the loser;
He has inflamed lawless
violence, and he has refused to condemn unaccountable militants, but rather
called upon them and
other irregular
forces to wait in readiness to support his claims to power;
He has, without warning, abandoned allies who have borne the
battle against our Union’s foes, and he has extorted others with the sole
purpose of gaining undue
advantage in his own Presidential election contest;
He has, in brazen violation of the Constitution of the
United States, removed
funds from the Treasury without an appropriation for such purpose made by
law and against the expressed will of Congress;
He has asserted a total
authority over the state governments in matters that are reserved by the
Constitution to the several States;
He has surrounded himself with an entourage of criminals,
and he has fostered an environment of base
corruption reaching to the highest levels of government;
He has rendered his party and his administration into empty
and sycophantic
cults of personality;
He has not comported himself with any dignity,
and he has demeaned
the office of the President;
He has displayed gross incompetence in the actual practice
of governance,
he has been indifferent to the suffering of his fellow citizens in natural disasters,
and he has recklessly endangered the health
of the nation throughout the course of the plague that
presently engulfs it;
He is, in sum, one of those base demagogues who embrace the dark contradiction of ‘illiberal democracy’ and see election to high public office not as a summons to serve, but as an invitation to rule. As Edmund Burke said of them: “Their liberty is not liberal. Their science is presumptuous ignorance. Their humanity is savage and brutal.”
And as such,
He does not deserve reelection. Indeed, to reward such an attempt at the chaotic establishment of personal rule would be to set our Republic, so dearly won and kept from 1776 until the present day, firmly if not irretrievably on the dim, dusty road to despotism.
Should the people of the several States, in accordance with the method prescribed by the Constitution of the United States, nonetheless choose to reelect Mr. Trump to the Presidency, then so be it. It would be a foolish choice, and I venture to say that all Americans would come to realize that before many years have passed. But a choice it is, and lawful.
If, however, the incumbent President refuses to yield upon
defeat, or if he attempts to intervene in the conduct of the election, then his
challenger shall be, or of right ought to be, the lawful President of the
United States; and unlawful orders given by the incumbent ought rightly to be
ignored by all of the officers of government.
Nonetheless,
The preceding argument ought not to be taken as an
unqualified endorsement of the opposition party. Contained within its fold are
some whose embrace of illiberal democracy is as fulsome as Mr. Trump’s. In the
words of Burke:
“They have no respect for the wisdom of others; but they pay
it off by a very full measure of confidence in their own. With them it is a
sufficient motive to destroy an old scheme of things, because it is an old one.
As to the new, they are in no sort of fear with regard to the duration of a
building run up in haste; because duration is no object to those who think
little or nothing has been done before their time, and who place all their
hopes in discovery. They conceive, very systematically, that all things which
give perpetuity are mischievous, and therefore they are at inexpiable war with
all establishments. They think that government may vary like modes of dress,
and with as little ill effect. That there needs no principle of attachment,
except a sense of present conveniency, to any constitution of the state. …Their
attachment to their country itself, is only so far as it agrees with some of
their fleeting projects; it begins and ends with that scheme of polity which
falls in with their momentary opinion.”
In due course, as these self-proclaimed revolutionaries,
these purveyors of ‘cancel culture’ and ‘critical theory’ who seek to silence
all voices but their own, aspire to power, it shall become the duty of all who
wish to preserve our Republic to oppose them with the same steadfastness with
which we now oppose Mr. Trump.
However,
Mr. Biden is no such menace. He is a decent man, moderate and conciliatory in his instincts, and committed to the perpetuation of our Union’s Constitutional order. Earlier this year, he took on the peddlers of illiberal democracy in his own party, and routed them. Should he go on to rout Mr. Trump in turn, as the best interest of the country demands, we as citizens may place our trust in him as President. He has shown his willingness to approach the task, as Abraham Lincoln once did, with malice toward none and charity for all; and he shall at least attempt, in good faith, to bind up our nation’s wounds.
Therefore,
I intend to vote for Mr. Biden, satisfied in my mind that
his accession to the Presidency, though it would likely result in policies which
I think are imprudent, is unequivocally the outcome most favorable to the
preservation of the Constitution of the United States; and it is my first duty,
and that of all citizens, to uphold that Constitution through the exercise of
our civic rights. Mr. Biden’s election shall not in itself be enough to ensure
our Republic’s future as a free and vigorous Union, but it makes such a bright future
possible.
Some will disagree. So, let us, as a nation, bring this contest to decision. It is time to vote; to accept the result once all votes have been counted; and then to turn our attention to whatever events next year brings.
“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 certainconditionsspecified 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:
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.
“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.
“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 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.
“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.
“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.
“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.
“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.
