“Before he [the President] enter on the Execution of his Office, he shall take the following Oath or Affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” —Article 2, Section 1 of the U.S. Constitution
“The President of the Senate [the Vice President of the United States] shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.” —Article 2, Section 1 of the U.S. Constitution
This afternoon, a mob went to the Capitol at the instigation of the incumbent President. By forcibly entering that seat of government, it prevented Congress from carrying out a duty prescribed by the Constitution itself. With this action, Mr. Trump has demonstrated, explicitly, that he cannot be relied upon to ensure that the provisions of the Constitution of the United States are carried out. Instead, he has indicated a desire to actively obstruct them through the incitement of brute and unlawful force. While he remains in office, our Republic is in immediate and dire peril.
It is thus now my belief, as a private citizen, that, in order to preserve our Republic, the incumbent President ought at once to be impeached, again, and this time removed from office by the Congress that he has menaced through his actions today; and this action ought to be done immediately before or else directly after the counting of Electoral College votes is resumed and finished. The incumbent Vice President, it appears, may be relied upon to oversee the functions of government for the two weeks remaining before President-Elect Biden’s assumption of the responsibility to preserve, protect, and defend the Constitution of the United States, as the President is bound by oath to do.
I think, also, that it will now be necessary for ordinary, healthy Americans who are able to do so to attend the inauguration ceremony in Washington, D.C., on January 20th, and by their presence—unarmed and peaceful—to present a barrier to those who might attempt to disrupt that necessary and vital function of the Constitution. Under present circumstances—the Covid-19 pandemic—it is unfortunate that this must be the case. But, to my regret, I believe that it has been forced on us.
A Republic cannot persevere unless its citizens stand up for it.
Update January 12, 2021: The Mayor of the District of Columbia and the Governors of Maryland and Virginia have discouraged citizens from coming to Washington, D.C. for the Inauguration in person. I fear that this may be an unwise course of action, but I hope nonetheless that they are correct in their assurance that “we will get through this period because American ideals are stronger than one extreme ideology.” Their statement:
“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,
Logically, there exist three legitimate purposes, broadly
defined, for ordinary citizens to keep and bear arms. These ends are, as
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.
2. Self-defense and, under certain circumstances, defense of property. This is a natural right, which every person possesses inherently.
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
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.
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.
The militia has evolved over time. 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
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.
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.
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
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.
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.
 When hunting is done for subsistence, it assumes the station of a natural right and carries greater moral weight.
 Locke articulates it well in his Second Treatise of
“…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.
 As occurred, for instance, when National Guard units
from several States were deployed to New Orleans in response to Hurricane
 For a more detailed accounting of this history, I
recommend the excellent short piece at the following link:
“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
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.
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.
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.
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.
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.
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.