The 2020 Election: The Long Case

“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 repeatedly sought the prosecution or imprisonment of his political rivals;

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 recklessly pardoned convicted war criminals and intervened in military discipline, and he has asserted an unlawful authority to order soldiers to commit such crimes, while he has displayed rank indifference and contempt toward those who served honorably;

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 cavorted with the most ruthless tyrants abroad, and he has preferred their counsel to that of the Government of the United States;

He has propagated outrageous conspiracy theories, which debase our Republic’s political discourses;

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 has repeatedly shown himself to be cruel and callous in his treatment of his fellow men, and of women especially, and even of small children;

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.

No. 1 – On Fundamental Liberties

No. 2 – On Federalism

Postscript – The Past, The Present, and The Future

A Well-Regulated Militia

“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:

No. 1 – On Fundamental Liberties

No. 2 – On Federalism

No. 3 – On Representative Government

Recent Events in Portland, Oregon

“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.

No. 1 – On Fundamental Liberties

No. 2 – On Federalism

Oklahoma and the Five Tribes

“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.

No. 2 – On Federalism

No. 9 – On Citizenship

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