Bill of Rights II.

 

The Articles of Confederation provided a poor sort of national government. The “United States” received scant respect either from foreign or state governments.  The men who authored the Constitution were determined to correct this fault.  However, they knew that the great majority of Americans feared the power and ambition of any central government.  Like the British monarchy, even the most “liberal” government might become tyrannical.  For example, a government might seek to abolish slavery in the Southern states merely because a numerical majority found it abhorrent.

Consequently, James Madison designed a government based on the separation of powers.  The executive, the legislature, and the judiciary would be co-equal branches of government.  Each branch would work to hold in check the pretensions of any over-mighty individual branch.[1]

Some delegates to the constitutional convention in Philadelphia worried that these provisions did not go far enough in insuring individual liberty.  Elbridge Gerry and George Mason proposed addition of a bill of individual rights.  This was rejected.  Later, Richard Henry Lee proposed that a bill of individual rights be added to the Constitution.  This, too, failed.

James Madison had argued against any bill of rights.  He believed that such a bill would do no good against a “republican” government based on popular sovereignty.  That is, the “people” would brook no opposition from a minority.  Furthermore, a government might interpret a Bill of Rights as stating the maximum, rather than the minimum, liberties of the people.  However, during the ratification process it became apparent that many ordinary citizens shared the reservations of Gerry, Mason, and Lee.  Essentially, they believed that even the most “liberal” government might become tyrannical over time.  Madison had argued that no bill of rights need be included because the division of powers and the conflict between interest groups would hold tyranny at bay.  This argument failed to persuade many of his readers.  The promise to add a Bill of Rights then became a bargaining chip in the effort to persuade state conventions to ratify the Constitution.  Six states recommended that a Bill of Rights be adopted once the Constitution had come into effect.  There were only 13 states then, so…

Madison abandoned his opposition to a Bill of Rights.  He wrote his own.  He offered these to Congress in June 1789.  He proposed to splice-in Amendments One through Five within the Constitution itself in Article I, Section 9, between Clauses 3 and 4.   Clause 3 bans Bills of Attainder.  Clause 4 bans direct taxation except equally according to the census.  In short, Madison intended that the Bill of Rights be individual rights.

Added instead as an appendix to the Constitution, they were adopted by Congress and ratified by the required number of states by December 1791.  Critically, the Ninth Amendment stated that “The enumeration of certain rights shall not be construed to deny or disparage others retained by the people.”  In this way, Madison responded to his fear that a tyrannical government might treat a Bill of Rights as a maximum statement of the rights of individual citizens.

Subsequently, the courts, including the Supreme Court, held that the “right of the people” referred to the rights of individuals.  Freedom of religion is an individual right.  Freedom of speech is an individual right.  The freedom to petition for redress of grievances is an individual right.  The right to be safe from unreasonable search and seizure of papers is an individual right.  The right to not be compelled to testify against oneself in a court of law is an individual right.  The right to trial by an impartial jury is an individual right.  The right to not suffer cruel or unusual punishments is an individual right.  God save the United States of America.

[1] Although that left the danger that two branches might, for their individual reasons, gang-up on the third branch.

Advertisements

Bill of Rights I.

English people, including the Anglo-Americans, understood their history as the product of a bitter struggle between tyranny and freedom.  Stuart absolutism had sought to restrict the rights of Englishmen.  This led to the English Civil War, the execution of King Charles I, and the republican Protectorate.  The Stuarts had been restored in 1660, but had acknowledged the role of Parliament and the laws as guardians of the rights of Englishmen.  King James II (r. 1685-1688) had tried to tip the balance toward French-style absolutism during his brief reign.  This had triggered the Glorious Revolution of 1688, while the constitutional fruits of that revolution had been harvested by the terms of the Hanoverian Succession in 1714.

Britain’s American colonies, and New England in particular, were peopled by the descendants of anti-absolutist Englishmen of the mid-17th Century.  The Englishmen who did not migrate had fought the English Civil War and created the republican Protectorate government.  The two groups shared many ideas.  These ideas were in some respects, pre-Enlightenment, rather than Enlightenment ideas.  John Locke occupied a central position for both strains of thought.  Locke had argued that a “social contract” bound both governors and the governed.  If either party broke the contract, then the other party was not bound to comply with the terms of the contract.  A tyrannical ruler had no legitimate claim on the obedience of his subjects.

That fear of a strong central government had arisen from these earlier experiences.  In the 1760s, the Americans had still seen themselves as Overseas Englishmen.  They still possessed the rights of Englishmen.  Those rights, in their understanding, included the right to be taxed by their own elected representative and the right be tried by a jury of their peers.  Both of these rights had seemed threatened by new taxes imposed by a British parliament elected only by British voters and by the Admiralty Courts appointed by the Crown and operating without juries.  As early as the Stamp Act Crisis, a handful of Americans had seen the measures as the leading edge of an effort to subjugate the colonists to absolute government.

In these circumstances, resistance offered the best path to preserving existing freedoms.  Colonial legislatures had denied the right of Parliament to impose the Stamp Act, then organized boycotts of British goods, and worked-up mobs to intimidate potential stamp distributors.  The organizers of this violent intimidation then went on to create the Sons of Liberty as a continuing resource.

The threat of superior military force added another dimension.  Until the French and Indian War (1756-1763), Anglo-Americans had defended themselves—and occasionally made offensive war—through their militias.  These were call-ups of all able-bodied and self-armed men in every Middlesex village and farm.  Anglo-Americans associated “standing armies” with the expansion of absolutist/tyrannical government like that in France.  Paranoia added another dimension.  After the defeat of the French, the Quartering Act had required the colonists to house British soldiers.  If the foreign danger had passed, why did Britain need to keep troops in America?  Did the Crown intend to impose its will on its American colonists?

In September 1768, two regiments of British infantry were ordered to Boston to support collection of the Townshend Duties.  The “Boston Massacre” (1770) cemented American hostility to regular troops.  The “Boston Tea Party” (1773) demonstrated the uses of violence.   Then came Concord and Lexington (1775).  Then came the Revolutionary War.  In the minds of many Americans, the ultimate defense against tyranny lay in the ability to shoot back.

“Bump Stocks.”

The purchase of fully automatic weapons has been tightly restricted in the U.S. since the 1930s. Outlaws great and small used fully automatic weapons (machine guns and sub-machine guns) against rivals and against the police.[1]  The 1934 National Firearms Act narrowly restricted ownership of fully automatic weapons; a 1986 amendment prohibited most transfers or possession of automatic weapons, except those that had been manufactured and registered with the government in the past.[2]  It would appear that most privately-owned fully automatic weapons are in the possession of licensed gun-ranges.  You can go to a range, pay a daunting fee, and fire a fully automatic weapon at a paper target.  That’s enough for most gun-owners

Still, a small number of gun-owners yearned for the experience of firing a weapon on full-auto at a lower cost.  Then, some physically-disabled shooters wanted an adaptive technology that would allow them to enjoy one of their favorite pre-disability sports.  Admittedly, this is kind of a niche market.[3]  Numerous attempts to design retrofits for semi-automatic weapons failed.  Then, in 2008 or 2009, someone invented “bump stocks.”  The particular technology doesn’t seem to me to matter.  The effect does matter.  “Bump stocks” allowed shooters to “simulate” full automatic fire.[4]

In 2010, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (commonly ATF) considered whether they violated federal law by creating a new form of fully automatic weapons.  ATF concluded that they did not violate federal legal restrictions on automatic weapons.  They did not alter the internal firing mechanism.  They just exploited it to achieve the same effect as a full-auto weapon.  So, “bump stocks” were good to go.  This was two years before the Sandy Hook Elementary School shootings.  In the wake of the Sandy Hook shootings, President Obama said he would “use whatever power this office holds” to prevent a new version of the massacre.  Alas, when he issued 23 Executive Orders in January 2013 to enhance gun-control, these did not include ordering ATF to revisit its approval of “bump stocks.”

Still, “bump stock”-modified weapons have problems.  First, they are Hell on accuracy.  Still if a sniper has 22,000 people penned inside a concert venue, s/he doesn’t need to be very accurate.  Anything within range can become a target.  Second, firing weapons designed to fire as semi-automatic on “simulated” full-auto generates more heat than the weapons are designed to handle.  They tend to jam.  So Stephen Paddock attached “bump stocks” to 12 of the rifles he brought to his room in the Mandalay Bay.[5]  It seems likely that he walked back and forth between the two windows he had broken whenever a weapon jammed, picking another off the bed on the way.

The obvious solution here is to revisit the 2010 ATF decision and declare “bump stocks” illegal.  That won’t do the casualties in Las Vegas any good, but it might help forestall mass shootings in the future.  Still, “mass shootings” as conventionally defined and long-guns (rifles and shotguns) account for a small share of the murders and suicides that still give America a high homicide rate.  Certainly, action on this front is needed.  It should not distract people from the much larger problem of hand-gun killings.  However, it will do just that.  For now.

[1] See: https://www.youtube.com/watch?v=BJ-gYx7hXZg and https://www.youtube.com/watch?v=84Lo0iNy4bg

[2] Kind of like “legacy” admissions to Ivy League universities.  I don’t mean to suggest that they have equally harmful effects on American society.

[3] One Georgia gun-dealer judged that he had sold a couple in a couple of years.

[4] See: https://www.youtube.com/watch?v=U7DTjSla-O8

[5] At maybe $200 each, that cost his about $2,400.

What if Hillary Clinton had won?

One can’t help but wonder what would be different if Hillary Clinton had won the Electoral College vote as well as the popular vote.  Some things are clear, others are hazy–to me anyway.

First, the Republicans would still hold the House and the Senate.  Nothing that President Clinton proposed would pass through Congress and nothing that the Republicans passed through Congress would be signed into law.  Thus, for at least two more years, we would be living with a continuation of the final six years of the Obama administration.  That is, President Clinton II would govern by executive orders and rule-changes by federal agencies.  These would be contested in the courts.

Second, the Republican Senate might well refuse to hold hearings on any Clinton nominee for the Supreme Court.  Thus, probably we would be living with a 4-4 deadlock on the Court.  The decisions of lower courts would be affirmed.  That would shift the judicial struggles to the nomination of judges to lower courts.

Third, both Bernie Sanders and Hillary Clinton had repudiated the Asia Pacific trade deal before the election.  It would be just as dead under a Clinton administration as it is under a Trump administration.

Fourth, James Comey would have been dismissed as Director of the Federal Bureau of Investigation.  Congress would then have held hearings on this matter, including on whether this amounted to obstruction of justice.  (See: Benghazi hearings if you don’t think that this last contention is true.)

Fifth, there would be an investigation of Russian meddling in the 2016 election.  This investigation would reveal—at the least—that the Russkies had hacked Democratic computers and the passed the fruits of this robbery to Wikileaks.  Moreover, the Russians would be revealed to have done a bunch of other things that may have monkeyed with the passions of voters.

Six, the Clinton campaign would have transitioned to government offices.  The results for American government would resemble those of the Clinton campaign itself.  According a New York Times review of the first account of the Clinton campaign organization, “It’s the story of a wildly dysfunctional and ‘spirit-crushing’ campaign that embraced a flawed strategy (based on flawed data) that failed, repeatedly, to correct course…In fact, the portrait of the Clinton campaign that emerges from these pages is that of a Titanic-like disaster: an epic fail made up of a series of perverse and often avoidable missteps by an out-of-touch candidate and her strife-ridden staff.”  These people would then have set out to manage the White House.  Then, what about Bill and Chelsea, and the Clinton Foundation, and Huma Abedin?

Seventh, Roy Moore would not have had the chance to defeat Luther Strange for a Senate seat from Alabama because Jeff Sessions would still be a sitting senator.

Eighth, the Clinton administration would be dealing with a series of long-developing, but now pullulating international crises: Iran’s nuclear weapons combined with its support for the Assad regime in Syria; North Korea’s nuclear threat; Russia’s intervention in a series of conflicts. European elections; and the Rohingya refugees.  So, a lot of ugly issues.

Ninth, the “exchanges” created by the Affordable Care Act (“ObamaCare”) were collapsing before the election.  Young people have declined to pay for their elders.  President Clinton would have had to seek a solution in league with a Republican Congress.  Under these circumstances, what would be the middle ground?

Kellogg and Briand Frosted Flakes.

In the First World War (1914-1918), Germany fought France, Britain, Russia, and the United States.  Germany lost–barely.  The French sought to create a post-war peace system based on keeping Germany weak.  Break up Germany into smaller states; grant the French control of the Rhineland and the Ruhr (Germany’s industrial heartland).  The British and the Americans didn’t like this solution, which just promised future wars.  Britain and the United States came up with a different plan: they would guarantee French security with an alliance treaty.  If Germany (or Mars) attacked, Britain and France would come to the aid of France.  However, the United States Senate refused to approve the Versailles Treaty (and its obligations for the United States).[1]  The British took the view—not entirely reasonable in light of the subsequent German danger under Mr. Hitler—that this let them off the hook as well.  All of a sudden, the French had neither an American nor a British alliance, nor did they have a weakened Germany.  What to do?

They tried coercing the Germans by occupying the Ruhr (1923-1925).  Unfortunately, they owed American banks a ton of money from the war.  So the American could—and did—bend France over the couch.  This led to the Dawes Plan and, eventually, to the Locarno Agreements.

Aristide Briand (1862-1932) fell heir to this mess.  Briand was a leftist politician who had been prime minister on many occasions.  In 1925 he became foreign minister.  He needed a way to fend off a future war with Germany.  Partly, this meant sucking-up to Germany.  Partly this meant trying to snare the United States into promising to defend France.  Briand fished around, then proposed what amounted to a defensive alliance between the US and France.

Frank Kellogg (1856-1937) grew up in the Upper Mid-West, taught himself law under the old pre-law-school system, and eventually became a terrifying lawyer for the U.S. Government in the Theodore Roosevelt administration.  He prosecuted the Union Pacific Railroad and Standard Oil.[2]  What he didn’t know about the real meaning of legal agreements wasn’t worth knowing.  He became a Senator from Minnesota (1916-1922).  Unlike most Republicans, he voted for the Versailles Treaty, so he lost that job.  “Progressive” Republicans like Herbert Hoover didn’t hold it against him that he had stood up to the old men and idiots.  He spent a year as Ambassador to Britain (1924-1925), then became Secretary of State (1925-1929).

So, Frank Kellogg had to deal with Aristide Briand’s proposal.  How to dodge a French trap?  He counter-proposed an agreement that would be open to every country and which rejected aggressive war as an instrument of national policy.  Who could be against a rejection of aggressive war?  In the public mind, the Kellogg-Briand Pact “outlawed war.”  Cheering followed.  Robert Ferrell told this story well in Peace in Their Time (1952)

Then Japan attacked China and Germany ran amok in Europe.  The Second World War followed.  The Holocaust followed.  The atom-bombing of Japan followed.  Filled with disgust over humankind, people came to misunderstand the Kellogg-Briand Pact.  First, “nouveau realists” saw it as a joke.  “Outlawing War” is joke, yes?  More recently, lawyers have seen it as the entering wedge for the rule of law, norms, and a rules-based system.[3]  Neither is true.  The Pact is best understood as a “realist” diplomatic maneuver in an age of popular idealism.

[1] This is a complex story.

[2] Yes, Republicans used to do this, just like the Democrats used to be an arm of the KKK.

[3] Oona Hathaway and Scott Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2017).  The reviews aren’t much more sensible, even when written by historians

When you’re wounded and left on Afghanistan’s plains.

After the defeat of the Soviet Union and the withdrawal of its forces in 1989, Afghanistan collapsed into civil war.  From that appalling war the Taliban, an Islamic fundamentalist movement, emerged victorious.  Then the Taliban provided a home for Osama bin Laden.  Bin Laden’s Al Qaeda group then truck-bombed two American embassies in East Africa and attacked the U.S.S. Cole in Yemen.  The Clinton administration kinda-sorta wanted to do something about the problem.  However, Americans weren’t ramped-up for war at the time; the head of the CIA wasn’t sure that it was OK to kill foreign terrorists; Pakistan saw the Taliban as a useful client[1]; cruise missiles were problematic because flying them across Pakistan into Afghanistan might trigger a Paki-Indian nuclear war by mistake, so you had to tell the Pakis about the attacks and the Pakis told Bin Laden; the U.S. military despised Bill Clinton, so they didn’t work hard at providing the dough-head with options; and drones were just a twinkle in the eye of weapons designers.  So, the Americans did nothing effective.  Then came 9/11.[2]

Virtually none of the original conditions now apply.  Americans now are perfectly content to blow up suspected Islamist radicals; drones have advanced massively in number and capacities; no American regards either Afghanistan or the Pakistan’s “tribal regions” as a “No Go  Zone”; any thinking person regards Pakistan as an enemy state; and—as under Bill Clinton—the American military wants to limit the range of choices presented to the president.   Now Americans can strike at radical Islamists with a free hand.  Why not just say 2017 is not 2001?  What are we to do?  Why send troops?  Get.  Out.  Yet the recent war-plan announced by President Trump takes little account of these –perceived only by me?—realities.

Well, what about the blown-up Buddhist statues because radical Islamists object to the physical representation of deities (icons) and to polytheism?  What about the ban on televisions (for the same reason they blew up the Buddhist statues)?  What about the women in blue burkas falling down in the street because they can’t see where they’re going?  What about the “honor killings”?  What about the sodomized young boys because sometimes that how men with guns roll?  Sucks to be them.  But it sucks to be an American soldier.  Just one percent of Americans do military service. (Lots more put yellow ribbons on the trunks of cars and the tail-gates of pick-up trucks.  So, that’s a help, I’m realize.)  Even so, for whom and for what do we ask American soldiers to fight?  For oil companies?  For feminist ideals of how all women should be treated?  For hetero-normativity?  So we don’t have to say we lost a war?

Why aren’t people in the streets over this issue?  They were when I was a kid.[3]  Four decades later, the same generation appears indifferent to a war shrouded in puzzles.  (OK, some of them are exercised over transgender bathrooms and Confederate monuments.[4])  Where is Congress on the war?

Where does South Asia (Afghanistan, Pakistan, India) fit in America’s national security strategy?  Where does it rank in comparison to Western Europe, Eastern Europe, the Middle East, and the Far East?  What happens if we “lose” Afghanistan?  What would we get out of “winning” in Afghanistan?  What would constitute “winning”?  IDK.  I’m just one guy.

[1] They still do.

[2] See: The Report of the 9/11 Commission.

[3] Truth in packaging: I wasn’t one of them.  Never occurred to me.  OK, Seattle in the Seventies was a time machine: take you back to the world of Ward and June Cleever.  Really, it was just shy and contrarian me.

[4] Republicans hold the White House, the Senate, the House of Representatives, the Supreme Court, and 34 state governorships.  It seems unlikely that these sorts of issues offer a path to a Democratic majority.

North Korea 2.

Suddenly, by August 2017, North Korea had successfully tested several Inter-Continental Ballistic Missiles (ICBMs) and it seemed likely that it had miniaturized an atomic warhead to mount on such a missile.  Alarm bells started ringing much more loudly.  Unlike defenses against short- and medium-range missiles, the defense against ICBMs is non-existent.  All that exists is deterrence—the certainty that North Korea would be wiped off the map if North Korea attacked the United States with a nuclear weapon.

Several questions, great and small, arise from the North Korean ICBM tests.  First, how did the North Koreans suddenly develop an ICBM missile and miniaturize a war head?  One theory is that a bankrupt and bent missile engine factory in Ukraine sold a sample to the North Koreans.  How the North Koreans got a rocket engine as big as a house from the Ukraine to North Korea without anyone noticing is an interesting question.[1]  If the Russkies were helping, then it could go overland by rail (or maybe even by cargo plane) to Vladivostok, and then by sea.  Or it could go to the port of Sebastopol on the Black Sea and then by sea to North Korea.  Giving North Korea the technology to put an atomic weapon on an American city would be considerably more of a hostile act than just meddling in an American presidential election.

If the Russkies were not helping, then does that mean that a few greedy managers in a Ukrainian rocket engine factory free-lanced this without anyone in the government of Ukraine noticing?  In any case, the engine would have had to go out through the port of Odessa.  How do you move a rocket engine as big as a house across Ukraine?  In the end, it seems that, if the bent factory in Ukraine helped, then it would be by loading the plans on a flash-drive and selling that to the North Koreans through some intermediary.  North Korean machine-tools could do the rest.

Second, what do the North Koreans want?  That’s a little murky.  One authority argues that “what North Korea wants is for us to stop threatening them and to talk with them.”   What forms do these threats take?  North Korea attacked South Korea in 1950.  Since the end of that war the United States has conducted military exercises with the South Korean military forces.  Hard not to see these as a) defensive, and b) just a demonstration of our commitment to an ally.  OK, but the U.S. attacked Afghanistan, then never left; the U.S. attacked Iraq on a specious pretext in 2003; and the U.S. attacked Libya, then walked away while the place burned.  Still, none of these places bordered on/were backed by China.  An American attack on North Korea is a fantasy.  Then, North Korea has rejected following the Chinese path to economic transformation.  If South Korea could go from being a backwater to an important industrial nation then so could North Korea.  Why hasn’t North Korea changed course?

Third, is there an alternative to war?  Everyone hopes so.  An American pre-emptive strike against North Korea’s nuclear facilities doesn’t seem any more likely to succeed than would an attack on Iran’s facilities.  Then the North Koreans would respond.  Seoul, the capital city of South Korea, is in easy range of the massed artillery batteries of North Korea.  Then, the US would invade North Korea?  What might be the response of China?  Do American voters want another large war?

We are being driven by reality toward another version of President Obama’s Iran deal.  So be it.  For now.  Eventually, the United States may “meet with Don Barzini, Philip Tataglia, all the heads of the Five Families.”

 

[1] See: “The Peacemaker” (dir. Mimi Leder, 1997).