React Like It's 1805

by Eric Martin

One of the fortunate byproducts of the most recent wave of WikiLeaks revelations was that I came across Aaron Bady's thought-provoking blog - this due to the fact that a few of his eloquent examinations of the WikiLeaks mission were widely cited.

In this post, Bady discusses the normalization of the war footing that took hold on a permanent basis during the Cold War and has been difficult to shake ever since. This under siege posture has perverted several aspects of our society from, as relevant to the WikiLeaks debate, the tendency to overclassify material and rely ever more on secrecy to shield the actions of government (even the mundane or rightfully public), to budgetary imbalances due to the enormous costs of maintaining a standing army, as secured and defended by an extremely powerful Military-Industrial-Congressional-Complex.

As Bady points out, and as I have argued previously, maintaining a standing army wasn't always the norm in the United States - in fact, it was a possibility that caused great consternation for many of the nation's founders:

It can be difficult to get your head around how perverse this transformation has been, in the grand constitutional scheme of things. But it is. I’ve been reading Edmund Morris’ Colonel Roosevelt, and one of the naggingly strange things that strikes you in the lead up to WWI is how relentlessly pacifist* the USA was (at least until Wilson’s decision to enter the conflict)...

This is a very simplified version of a complicated story, of course, but taking an impressionistic Roosevelt-shaped snapshot of 1915 and comparing it to the present at least allows us to get a sense for how dramatically and unrecognizably different this nation has become, how far our daily political practice has moved from the presumptions and principles that inform its constitutional framework. People who claim to be “originalists” without expressing concern about the effect of a standing army on democracy are either disingenuous or uninformed, or both.

You probably already knew that. But one of the things people tend not to realize is that the founders weren’t just worried about standing armies because they felt like a powerful army would make civilian rule impossible (though certainly this was part of it). They also worried — and the irony of this kills me — that a standing army would be dangerous to a democracy because it would produce and necessitate Big Government. A permanent army requires a permanent transformation of the state: while a civilian militia could be mobilized in times of need, they believed* that the good thing about such a defense structure was precisely that it wouldn’t require the kind of permanent tax structure that a permanent standing army does. And the founders were not a little bit concerned about taxation, remember?

Which is why, for example, military appropriations were given a particular, special little feature in the constitution: unlike all other forms of appropriation, army funding was only to last two years. Which meant that every two years, when the nation direct-elected an entire new House of Representatives (and remember, the direct-elected two-year-term-serving ”the People’s House” was to be a populist counterbalance to the aristocratic, appointed-for-six-years Senate), the populist House would have to actively choose to re-appropriate for the Army.  If the burden had instead been placed on congress to repeal the army’s appropriation, a single element (say, an aristocratic senate) would be able to prevent such action from being taken. But the founders eventually settled on a design that was aimed to prevent exactly that scenario: by weighting the inertia of the system against a standing army — making it automatically expire every two years — the people were intended to have as direct a check on the military’s financial existence as possible, precisely because of the anti-democratic effect that a standing army was seen to have.

Indeed, our military posture does require big government, and the spending necessitated thereby has greatly inflated our levels of debt (and perpetual deficit spending).  However, few of the so-called small government advocates and deficit hawks, whether donning tri-corner hats in protest or not, turn to the biggest of all government programs when sharpening the trimming shears.  

As I've argued previously, it would be next to impossible to turn back the clock to the state militia structure that dominated prior to World War I, and it is not even clear that such a move - were it possible - would be prudent. Similarly, the level of classification and secrecy in a modern setting, with the increase in volume of government documents and advances in technolgoy, is going to be, rightly, farther reaching than the state of affairs that predominated centuries ago.  However, some semblance of balance must be restored, more structural obstacles erected and vigilance against overreach re-animated.    

* The author, rightly, concedes in comments that the term "pacifist" is qualified, and that its use in the present context elides the significant military activity of the United States in the Western Hemisphere prior to WWI including, without limitation, within our present day borders.

Comments

[hairshirthedonist]

I say we propose a 28th amendment that reads as follows:

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

If it doesn't get ratified, we can get rid of congress, right?

[Tony P.]

Sebastian: Beating up on Brett may be a satisfying distraction, but it is just a distraction.

"Distraction", says Seb, as if reading or commenting on ObWi is a business or profession of some kind.

You can't have a Constitution where the words are so plastic as to allow "To regulate Commerce with foreign Nations, and among the several States" means "power to totally regulate the lives of anyone who buys a paper cup that has traveled across state lines"

"Totally regulate the lives", says Seb, as if erecting strawmen is not a "distraction".

You are making tea-party level arguments, says Seb.

I can't be bothered to track back to see who "you" is that Seb is addressing, so I can't in good conscience accuse Seb of a "personal" attack. I merely snort derisively. At no one in particular, mind you.

--TP

[Sebastian]

""Totally regulate the lives", says Seb, as if erecting strawmen is not a "distraction"."

That isn't a strawman, read the thread.

[Hartmut]

I think we are doing the eggshell walk around the question whether everything that is not explicitly allowed is forbidden or whether everything not explicitly forbidden is allowed. US politicians (and lawyer accomplices) had that discussion more or less openly since at least 9/11.
As for Medicare etc. I would put that under the 'public welfare' clause.
Let's not open the 'the airforce as an independent branch is unconstitutional' discussion again though*
As far as the 'all men are created equal' goes, I do not think that at the moment of writing that down the writer thought about any male/female implications but used 'men' as the standard synonym for 'human beings' as opposed to 'animals' (which again implies that humans are not animals).
Women got their feet in some doors legally because the writers of some statutes simply forgot to explicitly exclude them and judges chose to follow the letter as written ignoring the invisible words between the lines. The reaction to that could either be to accept it or to change the statute in question**. If the female franchise was not explicitly banned in the original text, then those omitting that have only to blame themselves since other countries took that 'precaution'.
---
Again I think that the US constitution could work quite well, if not applied to USians.

*which I always took as only semi-serious or as an example of consequences-not-foreseen-and-what-to-make-of-them.
**a common third way was of course to bully the women in question until they gave up (though some did not). That was the favorite tactic used by universities.

[Brett Bellmore]

"I think we are doing the eggshell walk around the question whether everything that is not explicitly allowed is forbidden or whether everything not explicitly forbidden is allowed."

I think we're doing an eggshell walk around the fact that we've got the 10th amendment to tell us that, for the federal government it's "everything that is not explicitly allowed is forbidden", and for the states it's "Everything not explicitly forbidden is allowed".

Basically modern commerce clause and "N&P" jurisprudence exists to write the 10th amendment out of the Constitution, stand it on it's head.

[chmood]

What a feast! My deep appreciation to Brett and Sebastian for SO much comment-worthy material: it's enough to make me wish that the Debacle of '07 hadn't destroyed my retirement, as I would much rather compose responses than spend another long day on my feet for 'minimum-wage-plus'.

Sadly, I cannot address Sebastian's seemingly-compulsive disingenuity, nor Brett's logical discontinuities, as I'd like. I can only rush back to work, my ibuprofen drip firmly in place, and hope I'm awake enough on my return home to come back & cheer on those who hold up the mirror to the lies and the lied-to in my absence.

Wassail!

[chmood]

Oh, and I must point out my amusement that Tenthers seem NEVER to have anything to say about the NINTH Amendment.

Hat-tip to Brett for reminding me to mention,,,,

[Slartibartfast]

we've got the 10th amendment to tell us that, for the federal government it's "everything that is not explicitly allowed is forbidden", and for the states it's "Everything not explicitly forbidden is allowed"

Somewhere in that explanation, the bit about "the people" got left out. Why do you keep forgetting about the rights of the people, Brett?

9th and 10th Amendments needed a bit more meat behind them, I think. Like an explicit acknowledgement that the rights of the people apply equally.

[Gary Farber]

I agree with all of Eric's post, as is typically the case. Good post, Eric!

[Gary Farber]

Russell:

[...] Folks interested in other departures from the norms and daily political practice current at the time of Ye Olde Founders may also wish to read, or at least read about, Hamilton's reports to Congress and the "American System" based on them, that prevailed under the Whigs and Republicans from the late 18C through the 19th. [....]

See here if interested, and this link is not redundant.

bobbyp on December 13, 2010 at 10:08 PM:

[...] "Congress couldn't ban booze?"

I have a slightly different take. With alcohol, the need for a Constitutional Amendment was probably driven more by its popularity and the politics of getting to prohibition (I mean if a 2/3 majority doesn't give you political cover, what does?). The states and the federal government had absolutely no problem regulating or effectively banning opium for instance (cf Harrison Act 1914). [....]

Yes. Practicality tends to trump theory more than not in politics, and specifically in a significant majority of Congressional acts, and bills eventually passed and signed into law by the President.