As we get closer to the Obama campaign forum on Thursday, I hope the republicans are ready foor a barrage of Scapegoativism and Blam-u-losis (I called George W. Bush for these). I pray McConnell, Cantor, Pence, Boehner and the other republicans have prepared for this democrat sponsored arcanum. Again, what is the purpose for the GOP to attend this forum with the liberals? I hate to beat a dead summit, however, this Obamacare bill is worse than the others. Saul Alinsky would be beating his chest, screaming "that's my guy." Earth to the "anointed one," we don't want what you are shoveling! Political analysts have said that passing Obamessiah's healthcare plan will be extremely difficult. Pelosi doesn't have the votes in the house. Bart Stupak said she is at least fifteen votes shy and Harry (Dr. Smith) Reid possibly could muster fifty one votes with enough bribes and arm twisting. But, most are saying this is a ploy by the President to shift blame to Congress and off Obama's shoulders. Think about it, you are a democrat up for re-election in November and you know that if you vote for this bill, it would be the end of your political career. Honest Obe is asking you to fall on the sword while Politico reported today that the Obama's 2012 re-election team is in full stride. Remember a few months ago in a post I wrote about Obama the narcissist? A narcissist will sacrifice anyone and anything to further their careers or causes. That is Obama in a nutshell. I just hope the republicans don't end up with an apple in their mouths on a spit. The Articulator in Chief will attempt to out-debate the
Please view the links below the Presidents plan and the Republicans' compilation:
http://rsc.tomprice.house.gov/UploadedFiles/RSC_Health_Care_Bills_Compilation--Late_February.pdf
http://www.whitehouse.gov/omb/assets/fy2010_new_era/Department_of_Health_and_Human_Services1.pdf
A CP exclusive-A CP hidden camera in the Obama/Republican healthcare summit:
Daft statement of the day:
"The tea party movement will fade when the economy comes back."
Govenator Arnold Schwarzenegger, CA
Keeping a Republic: Overcoming the Corrupted Judiciary
by The Honorable Robert H. Bork
Heritage Lecture #1147
Abstract: America, beginning about 50 years ago, has steadily become less of a republic, and there will always be those who prefer the victory of their interests to republican processes. The problem is both political and intellectual, and so must be the solution. Almost regardless of the outcome of the intellectual struggle, however, there remains the political battle to nominate and confirm justices and judges who spurn activism as illegitimate and will be guided instead by the original understanding of the principles of the Constitution. This may be the more difficult task. Many politicians, and the activist groups of the Left which they serve in these matters, have no interest in the legitimacy of constitutional interpretation; they care only about results. The appointment of new justices who hold an originalist philosophy is therefore necessary for the preservation of a republican form of government.
It is a signal honor to be invited to give the first annual Joseph Story Lecture. That is especially so because today is the public unveiling of a 10-year campaign, launched by Ed Meese and his team at The Heritage Foundation, to restore the courts and the law to their proper roles in American government and culture.
There are many aspects to this endeavor, but I will speak primarily about the law of the Constitution, which has become so badly deformed that Joseph Story and his colleagues would find today's Constitution, and especially the Bill of Rights, unrecognizable. That is a serious problem for the republican form of government that the United States was intended to embody.
Judicial Supremacy
It may help to remember that uncertainty about America's prospects is not new. As Benjamin Franklin exited the Constitutional Convention in Philadelphia for the last time, a woman asked him, "What have you given us?" He answered, "A republic, if you can keep it."
A republican form of government is about legitimate processes rather than results, except in those few instances in which the nation has adopted self-denying ordinances, such as our Bill of Rights, that rule out certain results. Obviously, those ordinances must be carefully construed so that they are effective but do not encroach on the legitimate powers of majorities. A corollary is adherence to the rule of law, for only such adherence can ensure that the will of the majority is not altered or subverted in its application to particular cases so that the power to govern is effectively denied to the majority.
Perhaps something like this is what Franklin had in mind. If so, he may have been worried about the displacement of majorities by oligarchies. Franklin was right to suggest that the success of the Republic was contingent--so it was, and so it is, and so it will always remain. There will always be people, often in well-funded organizations, who prefer the victory of their interests to republican processes. The danger becomes acute when the citizenry no longer appreciates the virtues and vulnerabilities of a republic. As Walter Bagehot put it, "The characteristic danger of great nations, like the Romans and the English, which have a long history of continuous creation, is that they may at last fail from not comprehending the great institutions which they have created."
In America's case, the great institution we have created and may be failing to comprehend is judicial supremacy: the power we have accorded courts to correct, and do so with finality, the other branches of the federal government and all branches of state governments. The judges need only announce that these other branches and governments have strayed from the principles contained in our written Constitution. Never mind that the power of judicial review is nowhere mentioned in that Constitution or that that power was established in very dubious fashion in Marbury v. Madison (1803).
The nation ultimately acquiesced, and a great institution was born--great in its capacity to do much good but also dangerous when it employs its powers to accomplish ends outside the law. After all, after Marbury came Dred Scott (1856), which denied the federal government the power to prevent slavery in any state or territory or to permit a state to bar slavery within its borders. Perhaps it should have been seen as ominous that these two cases, one greatly admired, the other now universally despised, were both instances of what today we call judicial activism.
The Olympians and the Judiciary
My thesis is uncomfortable, but I think it is undeniable: America today is only partially a republic and, beginning about 50 years ago, has steadily become less of one. It would be vainglorious to claim that judges have accomplished this all by themselves. Congress has repeatedly overstepped constitutional limits to its authority, as has the President.
Though America does not lack for external threats, it is certainly arguable that our greatest long-term threat comes from within. I refer to our self-identified intellectual elites whom Kenneth Minogue calls the Olympians.
Olympianism is a secular religion which does not recognize itself as a religion. Its acolytes, until recently concentrated in the universities and the mainstream media, claim superior knowledge which they will share with, and if necessary impose upon, the rest of us. The bad news is that this class is growing and taking root in the general population, both here and in all the industrial democracies of the West. The reasons for that growth are well beyond my topic today. For the moment, I merely cite that growth as an obvious fact.
The most powerful educational and political weapon in the Olympian's arsenal is the United States Supreme Court and the inferior federal and state judiciaries. Over time, the courts tend to adopt the values of the dominant culture, and that culture today, and for the foreseeable future, belongs to the Olympians.
The reason the judiciary is such a valuable ally to any class or political movement is that the courts, when purporting to speak in the name of the Constitution, even if they speak falsely, are the only institution in America that claims absolute finality for its decisions and is accorded that superior status by all other bodies. The Constitution provides no check upon the courts other than the highly uncertain authority to appoint new judges when vacancies occur. A series of unpleasant surprises in the behavior of new judges suggests that the appointment power is not much of a safeguard.
It is noteworthy that the same phenomenon of judicial supremacy is being taken up by other nations of the West, with results similar to ours: an unjustified diminution of democracy, the erosion of national sovereignty, and a judicially imposed movement of the culture to the left. Those results seem to be in the nature of the beast because of the alliance everywhere of the intellectual class and the judiciary.
We must ask ourselves whether we continue to understand courts with the power of judicial review. Some inkling of answer may be found by comparing the views of two prominent men, one of the founding generation and the other a contemporary of ours. I refer to Alexander Hamilton and Justice Anthony Kennedy.
Hamilton expressed the original view of the Framers. Downplaying the danger the anti-Federalists saw in a powerful national judiciary, he wrote in Federalist 78 that "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution" because it does not command the sword and the purse and has "neither force nor will, but merely judgment." He quoted Montesquieu: "of the three powers [legislative, executive, and judicial]...the judiciary is next to nothing."
That was then. Contrast Justice Kennedy's view. In an interview, he stated his understanding of the role of a justice on the Supreme Court: "You have the opportunity to shape the destiny of this country. The Framers wanted you to shape the destiny of the country. They did not want to frame it for you." Why men who did not want to frame anything should be called the Framers was not explained. At the Philadelphia Convention, they argued long and hard, drafted and redrafted, almost as if they thought they were framing a government to last, but apparently they were simply handing the United States over to a small clutch of judges who would take the nation in unanticipated directions without regard to either the Constitution or the desires of the people.
Justice Kennedy's remarks were no slip of the tongue, as shown by his further statement. "You know," he said, "in any given year, we may make more important decisions than the legislative branch does--precluding foreign affairs, perhaps. Important in the sense that it will control the direction of society."[1] That "perhaps" had an ominous ring and, as will be seen, was soon dropped as a barrier to judicial interference with both foreign policy and defense strategy.
Kennedy's view of judicial power is not markedly different from those of the four other justices in the Court's liberal bloc. He merely has the candor to articulate what is implicit in their decisions.
The Court's performance strikes at the heart of the concept of a republic. Without any warrant in law, nine lawyers split five to four, and the judgments of Congress, the President, state legislatures, governors, other federal judges, and the judges of all 50 states all are made instantly irrelevant. Whatever else it is, that is not democracy or a republican form of government. It is a robed oligarchy. So far, all attempts to tame it, to bring it back to democratic legitimacy, have failed.
So contemptuous of the electorate has the Court majority become that it routinely publishes opinions notable for their incoherence and remains unperturbed by the most devastating criticisms. The best known, but hardly unique, example is Roe v. Wade, which invented a wholly fictitious right to abortion. Though they have tried desperately, nobody, not the most ingenious academic lawyers nor judges, in the 36 years since it was decided has ever managed to construct a plausible legal rationale for Roe, and it is safe to say nobody ever will.
Roe is the premier example of what we now call judicial activism. You will hear it argued that to apply the term "activism" means no more than that you don't like a case's outcome. That is not true, and people who talk that way are, whether they realize it or not, implicitly saying that there are no criteria for judging the goodness or badness of a case other than personal or political sympathy.
"Activism" has a real meaning, and it is an indispensable term in our debates. A judge is an activist when he reaches results or announces principles that cannot plausibly be derived from the actual historic Constitution. The historic Constitution is the set of principles that the ratifiers, who made the Constitution law, understood themselves to be enacting--the original understanding. That approach is now called "originalism," and under no other approach can we have any semblance of the rule of law, which means in turn that no other approach is compatible with a republican form of government. Activism means lawlessness, and it is rife among many judges and most professors of constitutional law.
The rule of law requires that the principles announced and relied upon by judges be neutral in their application. Neutrality requires that a principle, once chosen, be applied according to its terms to all relevant cases without regard to the judge's personal views of the parties or issues before him.
That is a powerful discipline, for in deciding Case A he must realize that he has committed himself to decisions in future cases that fall within the principle but whose particulars are at the moment unknown to him. That counsels great care in choosing and articulating the principle which he advances as dispositive in Case A. Should the principle prove unsatisfactory in Case B, the judge's only recourse is to reformulate it with a full explanation of his reasons.
It is not sufficient, of course, that a principle be neutrally applied. That requirement would be met if the judge chose the principle that a labor union always loses and applied it neutrally, no matter the merits of a particular case. The principle chosen must also be neutrally derived, chosen without regard to the judge's individual preferences. The only source for principles that minimize or eliminate the judge's biases is the Framers' original understanding of the principles they were making into law. The morality and the policy enforced come from outside the judge. The judge who looks outside the historic Constitution looks inside himself and nowhere else.
No judge can possibly avoid seeing a case without his own worldview coloring his vision. But there is a chasm between a judge who knows that and consciously strives for objectivity and a judge who knowingly undertakes to impose his vision of justice upon the parties before him and upon the society.
Professor Lino Graglia of the University of Texas Law School summarizes what the Court has done in recent years to domestic policy, moving the nation to the cultural left:
Virtually every one of the Court's rulings of unconstitutionality over the past 50 years--on abortion, capital punishment, criminal procedure, [school busing], prayer in the schools,...public display of religious symbols, pornography,...discrimination on the basis of sex, illegitimacy, alien status,...flag burning...have reflected the views of the elite. In every case, the Court has invalidated the policy choice made in the ordinary political process, substituting a choice further to the political Left....
Graglia observes that the thought that the making of policy should fall into the hands of the American people is the intellectual's nightmare. Maintaining a liberal activist judiciary is the only means of preventing that.
Even more egregiously, the Court has forced itself into the conduct of our war against Islamic terrorists. Professor Gregory Maggs, of George Washington University Law School, points out that our current Supreme Court has overruled every precedent established in World War II, and it has done so in defiance of the foreign affairs powers the Constitution entrusts to Congress and the President, as well as the President's role as commander in chief of the armed forces.
The Court's incursions into areas best governed by the political branches are unprecedented as well as far beyond its competence. Detained enemy combatants, even those held abroad, are now for the first time in our history entitled to challenge their detention by claiming due process rights formerly available only to American citizens and lawful residents. The alternative system of justice, trial by military commissions, which goes back at least to George Washington and was ratified as recently as World War II by Franklin Roosevelt, has been made subject to new rules that seriously impair the effectiveness of the commissions. Judges have interfered with the collection of intelligence about terrorists by electronic means even where there is no conceivable threat to any citizen's privacy.
The threat to American lives and war aims by the American judiciary is real and serious. Professor Jack Goldsmith warns that our capacity to wage war "has been strangled by law"--the war has been "judicialized."
So accustomed are Americans becoming to control by judges and legal processes that we are introducing law into areas where it is incapable of performing well and instead debilitates other vital national functions. Lawyers now oversee the conduct of war, often down to tactical levels.
It is reported that an Army general, given the opportunity to fire a missile at an automobile in which Osama bin Laden was thought to be riding, was deterred by his legal adviser. It seems certain that introducing lawyers into combat situations will usually lead to undue caution that is inconsistent with the aggressiveness and risk taking necessary to the successful conduct of war. Both the lawyer and the commander, mindful of the second guessing that could damage their careers, will be tempted to play it safe by not firing at a car in which it is only probable that bin Laden is riding.
As this quick and necessarily truncated survey demonstrates, policymaking in crucial areas of domestic and foreign affairs has shifted dramatically from the elected representatives of the political branches to unelected judges, who cannot be voted out of office and whose views cannot be adequately known before they take office. The result is, as Justice Antonin Scalia put it, "Day by day, case by case, this Court is busy designing a constitution for a country I do not recognize."
The Confirmation Circus
How can the branch that Hamilton called the least dangerous to the political rights of the Constitution have become in the last 50 years arguably the most dangerous? That takes us to the subject of the corruption of the process for confirming a President's nominees.
Prior to Felix Frankfurter, a Supreme Court nominee did not even appear before the Judiciary Committee. Byron White was asked perhaps a dozen innocuous questions. William O. Douglas waited outside the hearing room until he learned he would not be called and then went home.
Now the nominee may be grilled intensively for days about how he would vote on every major issue, asked in effect to make campaign promises. His character and honesty may be impugned. He may resort to the standard reply that he cannot venture an opinion because the issue raised may come before him as a justice, but that answer is not available if he has written or spoken on the issue in the past. Which is why nominees who have taken no strong positions on major issues are now chosen.
The responsibility for this circus-like atmosphere lies immediately with the Senators, but behind them is an array of activist left-wing groups that, when the target seems promising, will wage a national political campaign which has the same quotient of lies and half-truths as may be found in a typical presidential campaign. These groups and the Senators who respond to them want justices who will go outside the Constitution to legislate politically correct results.
In recent years, the Senators most active in confirmation debates have tended to be Democrats. Republicans have shown no similar willingness to do battle. They docilely confirm nominees whose activist records should make them anathema to those who believe the original Constitution should be the judge's guide. Compounding this are the influences of the mainstream media and the law schools, both consistently far more liberal than either the American public or the actual Constitution.
It must be said, however, that the ultimate responsibility for this state of affairs lies with the Court itself. Half a century ago, the Court served notice that it was open to claims that have no basis in the Constitution, thus inviting litigation which, since no law was available, could only be decided on grounds of political philosophy or social sympathy. But the Court is a unique political branch because its decisions are accorded finality. The Founders, having no idea what a court could become and believing, as did Hamilton, that the judiciary's powers would be limited to enforcing the policies of the legislative and executive, did not provide the checks and balances they devised for the political branches.
Thus, today's judiciary, claiming both omni-competence and finality, has made control of the Court the ultimate political prize and its decisions the most potent weapons in our ongoing political and cultural struggles. So long as a majority of the justices persist in their present behavior, so long will confirmation hearings be unedifying power struggles played out on national television.
Preparing the Next Generation
What can be done to remedy the situation? The problem being political and intellectual, so must be the solution. There is some reason for very modest optimism on both fronts.
Thirty-five to 40 years ago, there was almost no intellectual support for originalism in the academic world, where that philosophy was commonly regarded as at best passé and at worst reactionary. Today, a sizeable body, though by no means the majority, of constitutional law professors, explicitly or implicitly, adhere to that view of constitutional interpretation. That is having an effect on those students who will comprise the next generation of scholars and, through them, on the judges of the future.
This is a daunting task, and its difficulty may be so great as to seem impossible, but the history of the reform of antitrust law by scholars and then judges may provide some reason for hope. Antitrust jurisprudence once seemed so politicized--its irrationalities so fiercely defended by the enforcement agencies, plaintiffs' lawyers, professors, judges, and Congress--that reform seemed impossible. Yet, largely through intellectual critique, reform has been achieved. There are, to be sure, very real differences between antitrust reform and the return of rationality to constitutional law, but there are enough similarities to suggest that hope need not be abandoned for the return of legitimacy to the institution of judicial review.
Almost regardless of the outcome of the intellectual struggle, however, there remains the political battle to nominate and confirm justices and judges who spurn activism as an illegitimate creed and will be guided in their deliberations by the original understanding of the principles of the Constitution. This may be the more difficult task. Many politicians, and the activist groups of the Left which they serve in these matters, simply have no interest in the legitimacy of constitutional interpretation; they care only about results.
Our hope, if there is to be hope, must be in the appointment of new justices holding an originalist philosophy. That is necessary if not sufficient for the preservation of a republican form of government.
The Honorable Robert H. Bork is a Distinguished Fellow at the Hudson Institute and has served as U.S. Solicitor General, acting U.S. Attorney General, and Circuit Judge of the U.S. Court of Appeals for the District of Columbia Circuit. After some years in private practice, he became a professor at the Yale Law School. This speech was delivered as the inaugural Joseph Story Lecture at The Heritage Foundation.
One of my favorite legal minds
Green Piece:
Al Gore Is Lying Low -- for Good Reason
By Rex McBride
Maybe Al Gore's been advised by legal counsel to lie low. He may be the leader of the anthropogenic global warming (AGW) movement, but he's not defending it in public, not even when it's falling apart and his new fortune is based upon it.
Mr. Gore and his financial backers earned millions of dollars in start-up "green" companies and carbon trading schemes. If the scam worked, he could've become the first "carbon billionaire."
"What goes up can fall down" applies to ill-gotten gains in the stock market or "carbon trading" schemes. In such schemes, it's foreseeable that trusting investors will (a) not only get hurt when the scam collapses, but they'll also (b) pursue legal remedies and sue him for fraud.
Mr. Gore's financial gains were based on the contradictory and error-plagued assertion that man's release of the trace gas CO2 will fry the planet.
Once it becomes clear to everyone that the AGW theory is based on cleverly manipulated data twisted by rigged computer models controlled by several dozen IPCC politicians/scientists, we can expect that investors who lose millions by investing in these companies will eventually haul Mr. Gore and the insider IPCC scientists into court.
Over the years, American tax dollars were poured down the fantasyland AGW "rat hole." Sooner or later, Al Gore needs to answer some hard questions. Unfortunately, we'll have to wait for lawsuits from private investors. Today, legal counsel will advise him to remain silent.
It's impossible to predict how many lawsuits, or what kind, might arise once everyone realizes that the AGW scam dwarfs Bernie Madoff's $50-billion Ponzi operation. New studies appear almost daily that further undercut AGW theory. The biggest daily newspaper in the Netherlands vindicated that country's leading AGW critic in the article "Henk Tennekes -- He was right after all."
Dr. Tennekes was fired in the 1990s from a prominent research position and blacklisted for debunking AGW theory. He upset the same IPCC scientists who control the leading "peer review" climate research journals and who blocked the publication of all contrary research in those journals for decades.
As investors learn the extent of the scam, Mr. Gore's start-up "green" companies will lose considerable value, like flaky dot-com companies lacking a real product. Investors in these "green" companies -- who reasonably relied upon Gore's alarming claims -- may pursue several possible remedies:
- derivative shareholder lawsuits, disgorging from Mr. Gore and other senior officers in these companies any illicit gains from any insider trading that could be proven; and/or
- lawsuits against brokers who did not perform the SEC's necessary "due diligence" research before peddling those shares; and/or
- civil RICO lawsuits against Mr. Gore and any IPCC scientists who participated in blocking the publication of contrary research, cooking the data, all of whose annual income skyrocketed from the public hysteria.
On the state level, it's impossible to predict if one or more state attorney generals will look back on the tobacco industry cases and decide, representing the taxpayers of his or her state, to file criminal and/or civil RICO actions against Gore and the enriched IPCC scientists.
(On the federal level, while President Obama is in office, the Justice Department will not file RICO or SEC actions against their buddy Al Gore. Remember, the president originally hoped that Boxer-Kerry cap-and-trade would generate over $600 billion in new corporate taxes -- "emergency" measures justified by fantasy AGW theory.
Remember the joke about the government taxing air? In the Twilight Zone of Boxer-Kerry, say hello to cap-and-trade.)
If Mr. Gore's "green" companies do crash and significantly injure private investors, attorneys in a civil lawsuit could compel Gore to answer questions like:
(1) When you claimed that "the science is settled," did you mean that it's "settled" that you and the IPCC scientists could make quick millions by manipulating the data and fomenting public hysteria?
(2) What does "peer review" mean if none of the IPCC scientists who controlled the academic journals protested that there was no original data to support your frightening claim of accelerated temperature increases after 1995?
(3) If the very scientists that the public trusted to act as the "check and balance" against careless research -- or worse yet, to protect against research fraud -- did not catch a "tiny" problem like not having original supporting data after 1995, does "peer review" mean that IPCC's scientists would secretly work in concert to cover each other's asses and keep the grants coming?
Such questions need answers.
In "The Dog Ate Global Warming", an article at the Cato Institute, Patrick J. Michaels noted that "[i]f there are no data, there's no science. U.S. taxpayers deserve to know the answer."
Obviously, Al Gore cannot be compelled to answer questions in a criminal court under the 5th Amendment. However, his admissible bank and stock portfolio records would prove his skyrocketing wealth, making him a "deep pocket."
Since 1970, the scope of RICO cases has grown far beyond prosecuting mafia operations. The law firm Nixon Peabody explained:
RICO was written in broad terms. To state a claim, a plaintiff must allege four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity... Each element of a RICO claim requires additional analysis: an "enterprise" is marked by association and control; a "pattern" requires a showing of "continuity" -- continuous and related behavior that amounts to, or poses a threat of, continued criminal violations; and "racketeering activity" involves the violation of designated federal laws ...
RICO lawsuits are now won in a wide variety of civil disputes -- e.g., insurance companies working in concert to delay/shortchange payments owed to dentists.
Other RICO cases resulted in court judgments against the Hell's Angels Motorcycle Club, Catholic sex crimes, and Major League Baseball.
It violates federal law to fake taxpayer-funded research and then manipulate or destroy data to enrich oneself. If an insider group secretly conspires to do so, it looks and smells like RICO.
If more AGW-destroying news rolls in, and if Gore's "green" companies lose significant value, then shareholder derivative lawsuits and/or state RICO lawsuits will follow -- more so as the losses grow.
Mr. Gore is in hiding today -- no longer the "courageous" leader of the AGW movement. Apparently, Planet Earth is "no longer in grave danger" or "needing to be saved," but Gore could lose all of his ill-gotten assets.
If the victim list grows and criminal intent is proven, Mr. Gore could do serious time. After a much smaller scam, Bernie Madoff got 150 years.
What if you want answers about the potential misuse of tax dollars that enriched AGW insiders but didn't invest in one of Al Gore's fantasies?
Call Congress and demand that the GAO audit all climate change grants. GAO has the professional audit expertise to follow the money, gather objective facts, and report on any significant fraud or abuse.
Will Al be able to take his Nobel with him to prison?
Quote du jour:
"He that is good for making excuses is seldom good for anything else."
Benjamin Franklin
KindaFunne:
Writings of Our Founding Fathers
Federalist Papers
The Powers Necessary to the Common Defense Further Considered
For the Independent Journal.
Author: Alexander Hamilton
To the People of the State of New York:
To THE powers proposed to be conferred upon the federal government, in respect to the creation and direction of the national forces, I have met with but one specific objection, which, if I understand it right, is this, that proper provision has not been made against the existence of standing armies in time of peace; an objection which, I shall now endeavor to show, rests on weak and unsubstantial foundations.
It has indeed been brought forward in the most vague and general form, supported only by bold assertions, without the appearance of argument; without even the sanction of theoretical opinions; in contradiction to the practice of other free nations, and to the general sense of America, as expressed in most of the existing constitutions. The proprietory of this remark will appear, the moment it is recollected that the objection under consideration turns upon a supposed necessity of restraining the LEGISLATIVE authority of the nation, in the article of military establishments; a principle unheard of, except in one or two of our State constitutions, and rejected in all the rest.
A stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature.
If he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the LEGISLATURE, not in the EXECUTIVE; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.
Disappointed in his first surmise, the person I have supposed would be apt to pursue his conjectures a little further. He would naturally say to himself, it is impossible that all this vehement and pathetic declamation can be without some colorable pretext. It must needs be that this people, so jealous of their liberties, have, in all the preceding models of the constitutions which they have established, inserted the most precise and rigid precautions on this point, the omission of which, in the new plan, has given birth to all this apprehension and clamor.
If, under this impression, he proceeded to pass in review the several State constitutions, how great would be his disappointment to find that TWO ONLY of them [1] contained an interdiction of standing armies in time of peace; that the other eleven had either observed a profound silence on the subject, or had in express terms admitted the right of the Legislature to authorize their existence.
Still, however he would be persuaded that there must be some plausible foundation for the cry raised on this head. He would never be able to imagine, while any source of information remained unexplored, that it was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to deceive, or by the overflowings of a zeal too intemperate to be ingenuous. It would probably occur to him, that he would be likely to find the precautions he was in search of in the primitive compact between the States. Here, at length, he would expect to meet with a solution of the enigma. No doubt, he would observe to himself, the existing Confederation must contain the most explicit provisions against military establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions.
If he should now apply himself to a careful and critical survey of the articles of Confederation, his astonishment would not only be increased, but would acquire a mixture of indignation, at the unexpected discovery, that these articles, instead of containing the prohibition he looked for, and though they had, with jealous circumspection, restricted the authority of the State legislatures in this particular, had not imposed a single restraint on that of the United States. If he happened to be a man of quick sensibility, or ardent temper, he could now no longer refrain from regarding these clamors as the dishonest artifices of a sinister and unprincipled opposition to a plan which ought at least to receive a fair and candid examination from all sincere lovers of their country! How else, he would say, could the authors of them have been tempted to vent such loud censures upon that plan, about a point in which it seems to have conformed itself to the general sense of America as declared in its different forms of government, and in which it has even superadded a new and powerful guard unknown to any of them? If, on the contrary, he happened to be a man of calm and dispassionate feelings, he would indulge a sigh for the frailty of human nature, and would lament, that in a matter so interesting to the happiness of millions, the true merits of the question should be perplexed and entangled by expedients so unfriendly to an impartial and right determination. Even such a man could hardly forbear remarking, that a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings.
But however little this objection may be countenanced, even by precedents among ourselves, it may be satisfactory to take a nearer view of its intrinsic merits. From a close examination it will appear that restraints upon the discretion of the legislature in respect to military establishments in time of peace, would be improper to be imposed, and if imposed, from the necessities of society, would be unlikely to be observed.
Though a wide ocean separates the United States from Europe, yet there are various considerations that warn us against an excess of confidence or security. On one side of us, and stretching far into our rear, are growing settlements subject to the dominion of Britain. On the other side, and extending to meet the British settlements, are colonies and establishments subject to the dominion of Spain. This situation and the vicinity of the West India Islands, belonging to these two powers create between them, in respect to their American possessions and in relation to us, a common interest. The savage tribes on our Western frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them. The improvements in the art of navigation have, as to the facility of communication, rendered distant nations, in a great measure, neighbors. Britain and Spain are among the principal maritime powers of Europe. A future concert of views between these nations ought not to be regarded as improbable. The increasing remoteness of consanguinity is every day diminishing the force of the family compact between France and Spain. And politicians have ever with great reason considered the ties of blood as feeble and precarious links of political connection. These circumstances combined, admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger.
Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our Western frontier. No person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the Indians. These garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. The first is impracticable; and if practicable, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private citizens. The latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small. Here is a simple view of the subject, that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature.
In proportion to our increase in strength, it is probable, nay, it may be said certain, that Britain and Spain would augment their military establishments in our neighborhood. If we should not be willing to be exposed, in a naked and defenseless condition, to their insults and encroachments, we should find it expedient to increase our frontier garrisons in some ratio to the force by which our Western settlements might be annoyed. There are, and will be, particular posts, the possession of which will include the command of large districts of territory, and facilitate future invasions of the remainder. It may be added that some of those posts will be keys to the trade with the Indian nations. Can any man think it would be wise to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part would be to desert all the usual maxims of prudence and policy.
If we mean to be a commercial people, or even to be secure on our Atlantic side, we must endeavor, as soon as possible, to have a navy. To this purpose there must be dock-yards and arsenals; and for the defense of these, fortifications, and probably garrisons. When a nation has become so powerful by sea that it can protect its dock-yards by its fleets, this supersedes the necessity of garrisons for that purpose; but where naval establishments are in their infancy, moderate garrisons will, in all likelihood, be found an indispensable security against descents for the destruction of the arsenals and dock-yards, and sometimes of the fleet itself.
PUBLIUS.
References:http://www.hotair.com/
http://www.wnd.com/
http://www.heritage.org/
http://www.weeklystandard.com/
http://www.wsj.com/
http://www.lauraingraham.com/
http://www.drudgereport.com/
http://www.politico.com/
http://www.americanspectator.com/
http://www.ibd.com/
http://www.foxnews.com/
http://www.redstate.com/
http://www.humanevents.com/
Rex McBride
http://www.youtube.com/
http://www.quotationspage.com/
Library of Congress/Federalist Papers
Honorable Robert Bork
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