We Are the Threat to the Second Amendment

The American War for Independence was fought, and the Constitution of the United States of America subsequently constructed, so that Americans could live in a free society.  The particular connotation of “freedom” paramount in importance was that of self-government.  The British crown and parliament were seen to interfere with the ordering of American colonies by themselves: the crown and parliament were thrown off.  What then proved to be an interim measure, the Articles of Confederation, was homegrown but the resulting government was ineffectual and even bad: the Articles were superseded.  The Constitution as it took effect in 1789 provided a much more effective structure for the central government of the United States: but as government is entrusted with maintaining by compulsion those things thought necessary in society – or at least by the governors of society – a more effective government is also a greater threat to individual and social liberties.

Thus, with ratification beginning in 1791, several Amendments – the Bill of Rights – were quickly added into the structure of the new government.  From the standpoint of modern practice, these protect freedoms ranging from our most prized (such as speech and religion) to the apparently quaint (not quartering troops) to the generally ignored (authority of individual states and the people).  Today, while the exact limits of the freedoms guaranteed in the First Amendment – speech, religion, assembly – are hotly debated, the most controversial item in the Bill of Rights is the Second Amendment:

“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 abridged.”

The security of any State is threatened by foreign encroachment; but that of a free State is also threatened by its own government, should that government turn tyrannical.  This latter was certainly that consideration by those drafting this amendment.  The Constitution already provided for armed forces.  The rest of the Bill of Rights asserts rights against government: why would this be different?  The Founders had just fought a war against a government they considered tyrannical.

At the time and in context, militia were lightly trained and loosely organized citizens with ordinary or perhaps slightly outdated infantry weapons.  The Second Amendment thus speaks directly to the legitimacy – even necessity – of a “civilian military”, under regulation.  The weapons in view for the citizenry to possess – the Militia Acts of 1792 required citizens to provide themselves with these arms – were recognizably those used in war.

It is worth noting that the Second Amendment has nothing to say about what individual states in the Union might require or disallow with regards to arms (except as superseded by national militia regulations).  However, the authority of states in this question would seem to have later been strictly curtailed by the Fourteenth Amendment, although I do not know whether this reasoning following the letter of the Constitution is routinely followed itself in court cases.

Militia service was assumed to be a duty for citizens.  The Militia Acts prescribed militia service for all white male citizens in the United States, subject to requirements established in the various states.  This reflects the common practice of probably a majority of nations throughout history, free or not.  It is still common practice throughout the world to require some degree of military service.  It is, however, not true of practice in the United States today.  How we got here is understandable: reluctance after the Civil War to give the Southern states opportunity for further disruptions, followed by the nationalism and centralization of the early Progressives; two World Wars and various ensuing conflicts would put the country’s military in mind to keep skill in the field at its fighting peak, a task for professionals, rather than amateur citizens.  But there is something a little odd about the occasional claim that the current doctrine of an “All Volunteer Force” is somehow specially “American”.

I take it for granted that some discipline in habits is necessary in a populace to maintain a continuing society.  That discipline can either be imposed from outside or maintained from inside: tyranny or at least autocracy on the one hand; self-control and self-government on the other.  As a society we do not value – in fact we tend to resent – admonitions to curb our desires.  We do so increasingly poorly, and are largely inclined to make jokes about our failures rather than consider them seriously.  In this light, the decline of – the lack of requirement of – militia service is an indication of a people not significantly concerned with remaining free.

In light of current outrages some call for further arming, that everybody should be ready to defend themselves: but a free man should not have to go armed in a free place.  The absolute horror of weapons themselves occasioned by these massacres is not significantly more palatable as an alternative, because by implication it is to admit we have surrendered our freedom.  Between the desire to feel in control of one’s own safety, the emotional and symbolic implications of surrendering the instrument of that control, and the actual fact of a government that spawns ever more intrusive regulations and agencies – the threat the Second Amendment actually had in mind – it is quite easy to understand the desire to see the right to bear arms remain unabridged.

It is mainly either free or lawless societies that have been armed societies: the former to mark and protect their freedom; the latter out of necessity and terror.  The Constitution of the United States was written for a people who – whatever their failures in actually carrying out these principles – wanted to live freely.  Its provisions are probably not safe for a populace which does not wish to exercise self-control.  But – here is the trouble – are we ready to admit that we are in fact not exactly a free people, or do not wish to be?  If so, are we content with that, or will we make actual reforms?

If society as a whole reflects an inability of individuals to govern their own conduct safely, the society is not free: even those individuals who might control themselves will be restricted, out of necessities that affect the whole.  I firmly believe no other nation has yet had the ideals of liberty imagined, or even achieved though admittedly only in part, so well as we have in the United States.  But it is possible for a nation’s maturity to regress.  Are we still free?  Can we prove it?  Or will Uncle Sam have to come take the scissors away from a nation of squabbling toddlers mad about who got invited to the party?

Gun Control Without Annoying People?

A friend recently suggested on facebook that, with several weeks having passed since any heavily-publicized shooting, it might now be a good time to have that mythical “conversation about guns”.  I intend to define that conversation a little more clearly.  Advocates for gun control often appear to expect the discussion to consist of them making points, and their opponents acknowledging that wisdom: I see a real resentment of what seems to them senseless stubbornness on the part of defenders of gun rights.

At least part of the problem, I think, is that gun control arguments on the whole do not address the concerns of those concerned with gun rights.  In some cases, they actually make the case for gun control less appealing.  For instance, defenders of gun rights often regard that right as a peculiarly American institution, and reflexively assume American ideas are superior to others.  To compare foreign laws favorably, especially when combined with the apparent implication that American laws are inferior, is to prejudice that audience against your conclusion from the very beginning.

Now, I think there is a natural right to self-defense, and that there is in the United States a civil right to bear arms – including firearms.  In fact the language and context of the Second Amendment suggests “arms” should be considered to include any weapons commonly assigned to infantry: in this respect accepted laws on gun possession are if anything more strict than the Constitution allows.  But I am not convinced the natural law of self-defense requires citizens of any hypothetical country to have this right.

In other words, I admit the possible utility of gun control.  However, I am generally among those put off by the arguments generally put forward by gun control advocates.  If they want to make a case that actually appeals to the sensibilities of supporters of gun rights, they need to do at least three things.

First, they need to respect the law.  Advocates of gun control are often dismissive of the Constitution and the legal protections of due process, emphasizing momentary needs over institutional integrity.  Many, I believe, support gun rights primarily, like myself, because it is the law: dismissing the Second Amendment, or the concerns of its authors about tyranny, needlessly antagonizes a constituency which is not emotionally or habitually invested in gun possession and therefore is a potential gun control ally.

Second, they need to demonstrate the benefit.  Citing foreign experience is insufficient, for reasons I have outlined.  Most advocates of gun rights associate high levels of gun violence not with gun possession simply, but with the cities – which is to say, corruption and poverty.  Racially-motivated distrust also plays a part.  But when it comes to gun control in the American context, cities often have more stringent laws than other places: and so the American concludes gun control doesn’t work in America.  “Gun-free zone” is a common a morbid jab at their opponents among gun rights supporters.  Gun control might help prevent violence: especially deadly violence, but for it to find approval, American urban crime rates – both violence by private persons, and government corruption – have to be brought down, and the public has to know these rates have fallen, or many people will simply continue to assume gun control does not really work, and is simply a short-hand to achieve “people control”.

Finally, gun control advocates need a population that trusts the government.  In America, this is a somewhat paradoxical task: the entire structure is set up under the assumption that people are not particularly trustworthy, and ambitious ones even less so.  But at the moment, neither major party is doing anything to counter-act these suspicions.  The Republican Party, as an institution. is more or less openly on the side of business and consulting that will keep them fat and happy, but at least has the decency to talk about believing in free trade as a cover; the Democratic Party is not really any better, and does not even make that an excuse – and moreover, is generally always in favor of passing coercive regulations on any subject whatsoever.  Those supporting gun rights for any reason whatsoever almost always believe in the ideal and benefits of self-government, while they see advocates for gun control practically denying the possibility.

I am, as I said, not convinced that passage of gun control laws is either necessary or the most urgent cause at the moment.  But if a gun control advocate were serious about achieving tighter control without intentionally aggrieving gun rights defenders, I would suggest the working within the laws.  I think, in fact, a Constitutional amendment is likely required.  If I were working to allow gun control laws, I would suggest an amendment to the Constitution be made up in Congress, reading something like this: “The Fourteenth Amendment shall not apply to laws made by State or local authorities with regard to bearing or possession of arms.”  By proposing such a law as an amendment, gun control advocates could show they were serious about working within the legal framework.  By returning a specific power to the States, they would cripple a common argument among those defending gun rights, that the Federal government is looking to centralize all power.  And by allowing variety – the passage of laws as States and localities desire – we would be better able to demonstrate, in a purely American context, what kind of laws really are best for limiting violent crimes.

Government and Personal Responsibilities

In his Gettysburg address, Abraham Lincoln called for a renewed commitment to “government of the people, by the people, for the people”. He offered this, on Northern ground as the Civil War raged on, as a goal of and justification for the Federal government’s prosecution of that war. Even those who find injustice in Northern actions during the Civil War would hardly disagree with the words: the actions, they must say, belie the words, and show they were no true belief.

“Government of the people”: that a community must have authority of some kind, to resolve disputes justly and oversee projects of general effect, is agreed virtually universally. The most strident monarchist or fascist is content so far: only the anarchist disagrees. The difficulties come in the remaining phrases.

“Government by the people”: it was not a new idea to suggest that community should be able to govern itself. In an American context, however, Lincoln could hardly mean anything by this phrase but the exposition of a more contentious idea: democracy, or the ideal of a people governing their own actions, and on larger matters coming together to debate, or personally select representatives to decide, what must be done.

Of particular note is the generality of Lincoln’s noun, “the people”. The implication is all people. It is hard to argue that the Federal government, in refusing the secession of the Confederate States, had any great moral goals: the practical question was Union or dissolution. To what extent the Constitutional intent of a “more perfect Union” can be set against the Declaration’s principle that “one people” can unilaterally “dissolve the political bands” they find themselves in is beyond my ability to decipher, or the scope of my current argument. That the Southern states largely seceded for fear their practice of slavery was endangered is a statement equally hard to refute: as a result, the actual result of emancipation is often seen as the actual Federal cause.

In his first inaugural address, Lincoln had attempted to set aside slavery as a minor issue, focusing on the Constitutional legalities as he interpreted them: in the second, he very nearly states the received wisdom of today, that it was “about” slavery, leaving only the caveat “somehow”. But in the meantime, he had issued the Emancipation Proclamation – affecting only the South, to be precise – and offered this speech at Gettysburg. Taking Lincoln’s transition as a guide to public opinion suggests that as the war went on, the North came to view it more and more as a crusade for abolition, while the South, with slavery not much in favor in most of the world, had to depend on their legal arguments to justify their actions, as Confederate sympathizers generally do today, and so set aside the question whether their culture as such justified secession and war to preserve.

That culture, at any rate, was set against this statement of Lincoln’s that all people were included in government properly conducted by “the” people. The principle implied is, stated negatively, that democratic or representative government is not preserved where some class or caste of those governed is shut out from participation in the government.

Admitting the principle, some implications follow which many might find curious. Children are generally prevented in all societies from participating in government by reason of immaturity: government, then, ought as much as possible not interfere with children. The ignorant might reasonably not be permitted to have a say in a decision – but if so, ignorance (at least of facts) can be cured in most cases, and the ignorant ought to be instructed. These “ignorant” are likely to be of two sorts – the younger generations, of course, but also the immigrants. Anyone held in violation of community standards ought not be forbidden future participation – unless his crime were such an offense that he would be removed completely, by death or (theoretically, though not exactly practiced in modern times) exile. Imprisonment is not enough: the prison is maintained by the community.

The idea sketched here is that the extent a community is defined not by the number of those who govern but by the number of the governed. With Roman citizenship, and the immigrant or resident alien, finding the privileges attractive, might have purchased such status for a considerable sum. An American, ideally, is a citizen primarily by virtue of being governed by the American government, with only such limitations as are found absolutely necessary for the controlling of human weakness and folly.

“Government for” this sort of people becomes a monumentally demanding task of restraint. There is first of all the assumption that these persons are on the whole capable of self-government: of controlling their own impulses, and constructing their own lives, so that it is demanded of the government not to interfere too much in any particular of life. (It might, inversely, be argued that a community in which the members are evidently not capable of such self-control will not be capable of self-government either, and history only serves to reinforce this idea with the added corollary that such a people will shortly no longer be self-governed.)

Secondly, it must be emphasized that government of this sort is to be conducted for the good of the entire populace. Laws which create castes or classes to be judged differently ought to be shunned. Remedial efforts ought to be absolute, not comparative. Any distinctions in difficulty or degree of duties must be limited in scope and based purely on objective resources or ability. These conditions must, most especially, be observed by the officers of the government – and so also the people must demand of themselves that they judge candidates for these offices strictly by such qualities.

It remains to be said that the government of a community is not the whole of a community. The Marxist dictum, “From each according to his ability, to each according to his need,” is in fact a sound statement of the goals of any community: but it is the fascist, statist, and even socialist mistake to assume that all effort be organized, and all goods be distributed, by the government of that community.

The difficulty is on the one hand one of logistics. Complete control demands complete information, which takes time. Any awarding of goods or services which cannot be done quickly will take additional persons to complete, which will prevent them from contributing what they might otherwise have done to the best of their abilities: the statist falls victim to proof by contradiction. This leaves aside completely the effect of inevitable disasters – natural, if not man-made – on a minutely planned course of action.

It is also a failure to properly account for communities within community. A nation is a large community: a family, the smallest possible. To the extent a smaller community has balanced ability and need, interference of the larger community government is an act of imbalance. The reverse is true, though one small community relative to a larger has less effect: take away a small contribution and it must be made up somewhere or the balance lost.

That balance is today widely felt to have been lost. The government officially established by the American community is not considered exactly trustworthy: individual officials, for the most part, even less so. We have been trained to look for a consensus to govern ourselves, and that much remains, at least: the result is that cases which ought to be for the government are now tried in the court of public opinion (and not infrequently, government, appealed to as force, is brought in where private opinions ought to be allowed to prevail on private matters).

As regards the government, the solution is simple in theory, though hard in fact to accomplish. The officers of the government must in fact govern in the agreed manner, which in America means by law and not by whim. Harder still is the communal duty: the American people must demand their government govern: that the officers act responsibly and that those institutions without consent be publicly validated or disbanded. Government is to act promptly where required: this condition suggests either that a great many laws ought to be repealed, or the processes of prosecuting cases simplified, or more officers employed in the government to be able to act quickly.

The more radical task comes in the re-conception of private spaces. Government is employed to resolve those disputes between people which must be resolved; the people are axiomatically (whether or not they are in fact) responsible to manage their own conduct; but there exists a space where individuals and small communities actually interact on their own.

The main principle stated above was that in the community envisioned communal responsibilities exist simply by belonging to the community. The secondary fact stated was that the communal force called government cannot effect all requirements of the larger community that exist between the family and the government. Persons included in the larger community do not all belong to the same small ones: they may in life move between smaller ones.

The government – the management of the large community – ought not therefore to impose the standards of any small community, but only such standards as are universal to the large one. If any standard supposed to be imposed needs for tranquility to have significant exemptions granted, it ought not be made law. Any government will make the decision not to enforce behavior which some, even a majority, of its officers would consider moral.

It is vital to understand this principle, because an overwhelming inclination today is to remove the private space: to impose the standards of a preferred small community on the large one. This is sometimes done explicitly, by laws demanding or forbidding behaviors positively. At other times this is attempted implicitly, by attempts to de-legitimize existence of persons as members of the larger community: now due not only to the class or caste mentioned previously, but at other times by virtue of their opinions.

There is in America a law by which religious exercise is protected from legal interference. This is sometimes treated today as granting the “significant exemptions” mentioned previously, but this is a misunderstanding of the principle even when it describes the practice. Religion, by definition, claims to have authority beyond the natural world. It is therefore easy to claim that a religious authority transcends the constraints outlined above.

If transcendent, then it claims the right to impose on the larger community the principles of the smaller: which is, if the smaller communities disagree with each other, a crisis. The American First Amendment, then, is not a creation of exception, but a statement of the principle as applied to the area where it was known a great temptation was found: the design was, by stating this application specifically, to protect the government from the smaller communities and the smaller communities from each other. If the government attempts to impose a law which the First Amendment would seem to demand an exception to (in the modern understanding), what ought to be concluded is that the law is a bad law.

And so for other laws and other small communities. What takes shape if this idea is followed out is diametrically opposed to the current tide of laws which extend government further and further through private spaces, but with exemptions within exemptions which render actual estimates of their application guesswork at best. If in fact a larger community extends to govern more and more smaller ones – what is called pluralism – it is more necessary to remove laws than create additional ones, because the remaining consensus covers fewer matters. It is the duty of the people as a whole not to repress in private spaces by government power behaviors unless they are prepared to remove that number of misbehavers from the larger community outright. It is also the duty of those in each smaller community to faithfully adhere to the standards of the whole. Lack of either promptly imperils both.

If Not Washington, Then What?

The Problem of Legal Authority

Perhaps the most unfortunate fact about the current government of the United States is that a vast amount of the work the Federal government does is illegitimate.  The Constitution of the United States lays out certain tasks for that government to perform, and implies – in the Tenth Amendment specifically states – that other powers belong to and duties are to be performed by the individual States or by the people.

Most markedly, when compared to the work we find the Federal government performing, the powers assigned to it do not include any form of welfare administration, or care for health of persons or communities, or involvement in education, or provision for the arts.  This is to say, by current stated law all such programs ought not to have been brought into being and we ought to desist from them, for the sake of law and honesty.

It is not to our credit that, in political engagements these days, it is relatively rare to hear an official or candidate make this argument – and lamentably, rarer still that one who does is taken seriously.  However the anticipation of doom brought on by suggestions to restrict these programs for any reason whatever are as discreditable.  The majority of the programs commonly mentioned are not even particularly old; while certainly care ought to be exercised in their dismantling, the mere fact of their removal, once effected, will not result in catastrophe but force a return to other – I believe better, but certainly more legal – ways of providing these things.

It is sometimes argued, in the term “living Constitution”, by torturing of legal phrases, or by similar arguments, that the Constitution is merely a guideline and has no definite authority, and certainly not an authority to restrict government – that government has the authority at all times to do what is necessary.  This is untenable: applied beyond the Constitution it undermines all law whatsoever – and if applicable to first principles, surely it applies to lesser regulations.

The Process of Restoring Legitimacy

I will not discuss here the various ways different facets of this over-expanded Federal involvement should be curtailed.  I also am not going to discuss – which is anyway more speculative – the various way I see this underlying dishonesty affecting the rest of our government, although I think it does.  I am instead going to discuss the three parts of a reform process I think are essential:

I. Focus on State and Local Responsibilities

One of the major arguments for the necessity of Federal involvement is that in certain areas it is alleged that State governments are unable or unwilling to perform the work necessary.  In most cases I know of, “unable” is not accurate; “unwilling” may be.  At this stage of illegitimate centralization, it seems to me likely that states will have stopped attempting to manage certain things.  In other areas such as education policy we know that what has resulted is massive, often conflicting, layers of regulation from every level of government which has any excuse to become involved.  To the degree the Federal government is removed from authorities it has usurped, attention must be paid at more local levels to maintaining and improving what services ought legitimately be publicly performed.

II. Understand Government as Part of Society

This is a “middle of the road” principle.  The progressive inclination is to treat government as the pinnacle and ultimate voice of society, whether justified as “the people’s will” or “the knowledge of the experts” or simply by default.  The progressive needs to remember that any society does not function purely because the people at the top make it go.  On the other hand, in America the conservative tends to view any government – though strangely, not most government agents apart from the IRS – as inherently evil.  They – we – need to remember Chesteron’s aphorism, that “politeness” and “policeman” have the same root and that both are necessary to maintain political society.  Government can be overreaching and can do evil.  However, it is not necessarily bad, but is a good thing and is instituted for justice and the common good.

III. Legitimize What Should be Kept

I have argued above that the Federal government is doing certain things it ought not because it has no right to those powers.  However, it may be the case that – because of changes in ideology and technology or because of historical reflections – certain things it is doing right now illegitimately, which were brought about in a perceived crisis but without the necessary legal authority, are good ideas and ought to have been implemented properly.  To legitimize these functions would require Constitutional amendments, but this is not too high a bar: we have had plenty of these – one within my lifetime, even.  This concept is not mine, although I have adopted it as it seems sound.  It was introduced to me by Anjali Reed Phukan, whom I talked to (incidentally and at a completely unrelated event) while she was a candidate for Maryland Comptroller in 2014.  However, my expression of it may not match hers: among other things, the fields for Federal action which I view as potentially legitimate are somewhat broader than those she proposed then.  While I will not in this piece examine the subject exhaustively, I believe the amendments necessary involve at the least the following: first, some general regulations for the Federal bureaucracy, such as review by elected officials of regulations affecting the public; and second, a formal expansion (if necessary) of fields within which the Federal government is authorized to act.

Why I Will Not Vote for Bernie Sanders

That I am not going to vote for Sanders should not surprise anyone who knows anything about my political, social, or religious views.  In fact, this post might appropriately have been titled, “Why I Will Not Vote for a Democrat”, as Sanders is by far the most compelling candidate, in terms of clarity of vision and personal integrity, that the Democratic party has put forward in several decades – and he is absolutely committed to the Progressive vision associated with the party, much more so than the majority of its politicians, who are perfectly happy with the current situation of favor-trading and mutual government-corporate (to say nothing of the unions) backscratching, whatever they may avow on the campaign trail.  Of the primary candidates, Sanders would clearly be the superior nominee for the Democratic party.

In fact, while his agenda is nothing more than an exaggerated version of our current President’s own desires, I am not convinced that a Sanders presidency would be quite the same failure – at least, if he were forced to govern opposite a Republican legislature.  Sanders, despite the problems with his proposed policies, appears to work in good faith, something that cannot be said of President Obama (or at least of his spokesmen – henchmen?).  The danger here would be a slightly different one: that Republicans would continue to play party politics only, rather than taking to opportunity to put forward their own good-faith ideas.  Many of the issues Sanders claims are issues that not only liberals but many conservatives – that is to say, everyone – cares about: and of course, reform of many of the policies implemented under Obama would also have to be done soberly, and carefully even when wholesale repeal is necessary.

Were the Democratic party in power in Congress – that would be a disaster, as I doubt Sanders would commit to using his veto power to prevent the standard cronyism if his own party were responsible.  I could be wrong, but any resulting “reforms” would be as loophole-ridden, favor-granting, and conscience-insulting as Obama’s championed “Affordable Care Act”.

So much for prognostication.  In the following paragraphs, I will outline several specific reasons Sanders is not a candidate I can vote for.  The primary one is moral: he explicitly endorses abortion.  Despite his claims to be on the side of those abused by society, he has put himself against the smallest and most helpless members of this society, and tolerates their murder.  This acceptance of the taking of innocent life is a blow to the roots of any reasoned and reasonable ethics and morality.  For me to ever support, endorse, or vote for a candidate who believes abortion is not only acceptable but talks about it in terms of rights would require circumstances I am not really interested even in considering at the moment.

I am also not a fan of his other proposed policies.  Sanders does identify correctly many of the problems facing the United States today.  Rising costs of education and healthcare, dysfunction in those areas and in many others, collusion between elected officials and those private persons who have supported them – these are all issues that must be dealt with.  Similarly, problems both of inefficiency and injustice in immigration, criminal sentencing, and other government responsibilities must be corrected.  Very few people take significant issue with Sanders’ identification of the problems facing the government (though many disagree with his ideals for society).  What conservatives, including myself, vehemently oppose is the conceit of thinking that the government can correct all of these ills by itself.  Sanders’ avowed commitment to socialism (to be sure, “democratic socialism” on the modern European model; he does not take for his goal the statist socialism of the 20th century dictators) is an indication he is not prepared to actually correct the ills he sees assailing the country.

There are three main reasons to object to socialism – especially at the Federal level – in the United States.  I will take them in order of increasing importance.  The first is that there are serious doubts whether socialistic policies – that is, policies enacted on the axiom that the government should at least potentially own, control, or regulate any industry and capital – actually work, especially in the long term.  Many of our own programs and policies which have socialist underpinnings, from Social Security to gasoline regulations, are financially untenable, demonstrably impractical, or have had massive unintended consequences.  If Sanders were to take office, his first priority ought to be returning those programs to viability or replacing them: but he seems as likely to ignore the faults and instead – much like President Obama who would have then been before him – champion his own pet projects instead.  Even on Sanders’ own terms, the practical results look suspect – and then we remember he would have to work with Congress.

The second concern is the ethical state of the country.  Many conservatives are fond of denouncing socialism due to its tragic, catastrophic failures in the hands of dictators.  Many liberals champion socialism, in its modern guise of “democratic socialism”, for its relative success in Northern Europe.  Few on either side spend much time on the collapse of socialized states in the Mediterranean and South America – but I believe our governing bodies are much closer to this last group than to either the demons or the pragmatists.  Many city governments in the United States are openly corrupt or bankrupt.  Many state governments are, relatively unnoticed, much the same (especially the bankrupt part).  Millions of people, likely a majority, distrust all national politicians except their own favored few – and this distrust has largely been earned.  Sanders’ own personal integrity appears unimpeachable, but with whom would he be governing?

(It is true that no other candidate is much better prepared to address these problems.  Rand Paul, had his campaign proved viable, would have tried.  Ted Cruz I think might have the will: but given his personality I suspect a Cruz presidency would turn out a mirror of Obama’s: several striking successes followed by stonewalling on all sides.  Kasich or Rubio I think are “managers”, which may be better than nothing, and might stabilize the situation for several years, but would not likely produce any real reform.  Trump and Clinton are obviously both as corrupt as they come.)

The third, and most important reason, to reject Sanders’ socialism is that it is illegal for the Federal government.  This has not stopped much of anyone for the last hundred years at least (the precise number I believe is greater, but the hundred years is more or less undeniable).  That is not an excuse for perpetuating disregard for law, even if it may make reforming the accumulated detritus that much more difficult.  The Constitution laid down certain powers for the central government, implying and then by amendment specifically stating that all others – which can be generally summarized as the power to regulate day-to-day business and life – were to remain prerogatives of the State governments or the people.  Justified by the farces of “living constitutionalism” and (especially modern interpretations of) “substantive due process”, we as a nation have grown accustomed to ignoring what the laws say – including this Constitution and its carefully set limits – in favor of whatever we want right now.

Sanders’ campaign doubles down on this principle.  He is at least honest enough to say what he wants, and (more shockingly still) honest enough to say upfront that his programs would cost significant amounts of money not to be found without higher taxes.  However, personal honesty is no justification for governing dishonestly.  He would like the United States to be a neatly run country on a basis of democratic socialistic principles.  To do that, even assuming it were a realistic goal as above I argued it is not, he would have to – though this is a trait he shares with most of our current politicians as they pursue their pet projects – ignore the law.  Nowhere in Sanders’ platform that I am aware of does he call for amendments to authorize all the powers that would accrue to Washington even beyond its current usurpations.  Sanders’ presidency itself might proceed placidly.  But with the corruption, the debt, and the cronyism that characterize our current rulers; with the ideological and social divides crossing the populace; the eroded bases of State and popular power to resist actual tyranny: is there any reason to think these projects which Sanders pursues would end well in the long term?

A Note on the Tenth Amendment

In a recent discussion about the ACA, I was asked to read (and respond to) several pieces on the tenth amendment.  I must, it should be noted, did not realize quite the importance my partner in discussion attached to these links, and – in honesty – considered the arguments set forth in them to have been already adequately dispatched previously by another.  In any case I was reluctant to respond in detail when the subjects under consideration were already multiplying extensively: tempers having (I hope) cooled somewhat, I will present my rebuttal independent of that discussion.

I believe the best of the pieces presented was Dr. Schwinn’s essay “The ACA and the Tenth Amendment”, posted on the Supreme Court blog.  In style, clarity, and – by virtue of its sponsors – authority, it stands as the opinion most significant among the various similar sources cited.  I say it is the best – but I believe Dr. Schwinn’s argument is flawed.

0.  The Tenth Amendment, Text

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

I. A Personal Statement on the Authority of the Supreme Court

The judgment of the Supreme Court is, in any particular case, the final word in law; and as precedent, takes a place somewhere between an opinion to be given the most careful attention and a simple final decision of the question and similar matters.

Additionally, by fairly long tradition, the Supreme Court has the power to consider the validity of laws under the Constitution of the United States.  Although never given this power under the Constitution, the Court must logically have the power to judge based on the Constitution if it is to uphold the most fundamental laws of the land – and under any interpretation, the Court has that actual power, regardless of authority.

What this does not prove, however, is that the Court’s opinion represents the final say on all law and constitutionality in the United States.  It is sufficient here to point out that the Court has periodically reversed itself.  That is to say, it is possible to disagree with the judgment of the Supreme Court – and let me mention here that its decisions are rarely unanimous – and not be wrong; and in point of fact, parties across the political spectrum regularly object to Supreme Court decisions and hope to see them overturned either by further law or further judgments.

In sum: Supreme Court decisions are near-binding precedent in law; and should be carefully considered but are not binding on opinion.

II. Dr. Schwinn’s Opinion

In Dr. Schwinn’s estimation, the tenth amendment serves essentially no purpose:

“…The Court acknowledges that the Tenth Amendment serves two principal purposes.  First, it prohibits the federal government … from using [the states or their officials] as mere instrumentalities of the federal regulatory agenda.  Next, it … protects against federal legislation that goes too far into areas of traditional state concern…  But these are loose constraints, easily bypassed by the federal government … Moreover, any enclave of traditional state concern is necessarily ill-defined and eroding with increasing national integration… [The Tenth Amendment] states but a truism.”

III. Contra Dr. Schwinn

In this opinion – and the piece in general – Dr. Schwinn confuses the status quo – the “what what is”, a phrase stuck in my mind as something a professor of mine once called it – with what (with apologies to Latin scholars everywhere) I am going to call the “status sit“: the way things should be.  (Feel free to improve the phrasing.)  To someone axiomatically inclined – as I am – to see the Constitution as not only limiting but delineating the powers of the Federal government, the conclusion appears to be, not that the Court’s decisions render the legislature’s actions acceptable, but rather that the Court is derelict in its duty to the Constitution, the law of the land.  The cavalier reference to “increasing national integration” as though such a thing were both inevitable and desirable (though at least acknowledging a previous difference) is not a thing calculated to cheer the soul and satisfy the spirit of the – dare I say – determined Jeffersonian.

IV. Argument from the Texts (Amendment, Constitution, and Schwinn)

But supposing that for the sake of argument we take Dr. Schwinn’s statement as an acceptably accurate one; suppose we abide by his judgment that the Tenth Amendment is in fact merely a truism.  This either proves too little to prove his case, or too much.

If he means merely that the Tenth Amendment adds nothing to the Constitution – why, then, we may disregard it, and study the Constitution without it.  And then we come to a further problem: for the interpretation of the Constitution in all points is not a settled subject.  Dr. Schwinn would have us drift with the times, and with Court interpretations; others like myself would have us all believe that it meant something specific.  Dr. Schwinn acknowledges the controversy over, for instance, the Commerce clause:

“Consider the clause at issue in the cases challenging the ACA, the Commerce Clause: ‘The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’  Terms and phrases like ‘to regulate,’ ‘commerce,’ and ‘among the several states’ are inherently indeterminate and susceptible of a wide range of interpretations, especially as society, technology, and trade change and evolve.  (If there is any doubt that these terms and phrases are ambiguous, look at two hundred years of contentious litigation over their meanings.)”

But he merely waves it away.  The Court has (both generally and especially recently) tended to take an expansionistic view of the Federal government’s powers; therefore it must be the correct meaning.

He acknowledges that previous sittings of the Court have taken a different view:

“To be sure, the Tenth Amendment had its heydays.  During the first, in the early nineteenth century, the Court interpreted the Tenth Amendment to bar federal legislation related to manufacturing and production ‘areas traditionally within the states’ police powers[‘].”

But he again dismisses this earlier view (incidentally supporting my earlier contention that the “opinion of the Supreme Court” cannot be considered anything like a final authority on Constitutional meaning): “…This high point of the Tenth Amendment ended decisively in 1941, when the Court in United States v. Darby upheld the Fair Labor Standards Act of 1938.”

Thus he proves too much: the Tenth Amendment is meaningless; so we must defer to Constitutional interpretation – and yet he has not proved the Progressive interpretation correct, merely assumed such a thing.  By discarding the Tenth Amendment, he has “proved” so much that he has merely moved down to another turtle.

Alternatively, if we take “truism” as a factual description, rather than a dismissal (as evidently was not intended by either the 1941 Court or Dr. Schwinn, but bear with me here), such a description fails to answer the problem at all: it makes the Tenth Amendment self-evidently true – and calls into question the entire march of the Federal government toward sovereign interior power.  Let me quote an excerpt from Madison on the relationship of the States and the Federal government: in Federalist 45, he begins his argument for the proposed constitution – after several digressions on other governments – by urging that, “The State governments will have the advantage of the Federal government…”  I will of course admit that this view was not shared, either as an opinion or a goal, by all of the Federalists (or probably all of the anti-Federalists).  Hamilton’s goals, for instance, were indubitably in favor of a more concentrated power (though one wonders whether, having participated in a revolution brought on by, among other things, the forced buying of what were essentially publishing licenses, even he would be quite accepting of the modern state of affairs).  At any rate, Madison sums his ideal up later as follows:

“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

“The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.”

In conclusion, I will merely note this: that the period of marked Federal ascendancy is one that was marked in its beginning by a war started in part (how small or large, I leave to your opinion, but I demand acknowledgement of some motivation) to secure the rights (however heinous – a topic for another time) of the individual States; that this expansion was slowed, in some measure, by the peace (in some measure) of the Reconstruction; and that in the crisis eras of World War, Depression, World War, Cold War, and Gulf-War-on-Terror, the role of, funding of, spending by, and perceived dependence on the Federal government has proceeded almost unabated – the “almost” being, mainly, the presidency and a half of one Calvin Coolidge.  Madison seems to have been proved distressingly right in his governmental calculations – and depressingly wrong in his historical ones.  (Though I leave aside his calculations on defense – to over-generalize, Americans have been unwilling to fund a military, and unwilling to leave well enough alone when they do happen to have one.  But that is a topic for another time – and not an area of my expertise.)