In Defense of Lawless Order: Mansfield's Paean to Fascism

“Law consists of two lines above my signature.” -- Saddam Hussein

"I'm the commander in chief, see, I don't need to explain, I do not need to explain why I say things. That's the interesting part about being president. Maybe somebody needs to explain to me why they say something, but I don't feel like I owe anybody an explanation." -- George W. Bush

Harvard Professor of Government Harvey C. Mansfield's May 2 Wall Street Journal essay “The Case for the Strong Executive” is a remarkable brief on behalf of unreconstructed fascist rule through an Executive emancipated from the rule of law.

Mansfield, who unblushingly admits that the alternative to the rule of law is "tyranny," insists that the "defects" of our system of liberty under law suggest "the need for one-man rule."

Seriously. He really wrote those words. And he apparently meant them.

He likewise maintains that the rule of law "is inferior to the living intelligence of a wise man on the spot."

This presumably would be true of our incumbent tyrant, an individual who displays no symptoms of either intelligence or wisdom.

To the best of my admittedly limited knowledge, Mansfield -- who is making his bid to become the neo-conservative Giovanni Gentile -- is the first American public intellectual of consequence to offer the unflinching declaration, by way of an op-ed in a prominent mainstream periodical, that the rule of law is disposable – and that the “executive power” supposedly embodied in the president exists apart from the law.

Mansfield refers to the struggle between “the strong executive and its adversary, the rule of law” -- a formulation that cannot co-exist with the constitutional mandate (which is also cited by the professor) that the president “take care that the laws be faithfully executed.” If the executive is an adversary of the law, how can he carry out the function of enforcing it?

Like John C. Yoo and other exponents of unlimited executive power in the Bush Regime, Mansfield believes that the president draws his power not from the Constitution but from “Necessity” -- or, as Machiavelli (whose dubious authority the professor repeatedly invokes) puts it, la necessita che non da tempo (“the necessity that allows no time”).

In times of crisis, therefore, the president, as head of the “energetic” branch of government, can exercise plenary power, at least according to Mansfield's model. In this he would certainly be in agreement with the energetic chief executive who seized extraordinary powers to February 28, 1933 to deal with a crisis precipitated by the burning of Germany's Reichstag Building.

But this comparison is somewhat unfair .... to Hitler and his followers, that is.

The Nazi definition of Fuhrerprinzip posited that the chief executive was the embodiment of the General Will.

This was explained in the Organization Book of the German National Socialist Party:

The Führer-Reich of the [German] people is founded on the recognition that the true will of the people cannot be disclosed through parliamentary votes and plebiscites but that the will of the people in its pure and uncorrupted form can only be expressed through the Führer.... He shapes the collective will of the people within himself and enjoys the political unity and entirety of the people in opposition to individual interests.... [His] power is not limited by checks and controls, by special autonomous bodies or individual rights, but it is free and independent, all-inclusive and unlimited.... He is responsible only to his conscience and the people....

In practice, of course, Hitler and his clique didn't defer to the will of the “people” in any meaningful sense. Be that as it may, Mansfield's version of the “Leader Principle” is actually more radical than the official Nazi version of that doctrine, since he begins with the assumption that the president – by virtue of some divine afflatus, perhaps? -- is endowed with insight superior to that of the common people, and thus has the power, nay, the moral responsibility to defy the public will:

“A strong executive is requisite to oppose majority faction produced by temporary delusions in the people. For the Federalist, a strong executive must exercise his strength especially against the people, not showing them `servile pliancy.... `Responsibility' is not mere responsiveness to the people; it means doing what the people would want done if they were apprised of the circumstances.”

I wouldn't presume to know Mr. Mansfield's unspoken desires and motivations. It is significant, though, that the lines above saw print just a day after the Grand and Glorious Decider, in defiance of public opinion, vetoed a military appropriations measure that oh-so-tentatively prefigured an end to his precious war.

I can't help but suspect that this was – I'll be delicate here – an act of rectal osculation by a servile court academic. It is also a complete inversion of the description offered in the Federalist of the executive's role.

Here are a couple of "energetic executives" who shared Mansfield's hostility to the rule of law and civil liberties.

What the Founders understood, and the Idiot King's war in Iraq demonstrates beyond dispute, is that a lawless executive is the public official most likely to induce and capitalize on “temporary delusions of the people.”

The strength and energy the executive is supposed to exercise consists of holding fast against transient democratic pressures to aggrandize the central government; it is not his role to use whatever powers he can arrogate to himself to overcome public opposition to expensive and freedom-devouring central government undertakings.

As it happens, Mansfield has as little use for individual liberty as he has for the rule of law. This isn't surprising, since these two concepts are intimately intertwined – just as foreign war is joined to executive lawlessness in unholy wedlock.

“In our time,” the professor pontificates, “an opinion has sprung up in liberal circles particularly that civil liberties must always be kept intact regardless of circumstances. This opinion assumes that civil liberties have the status of natural liberties, and are inalienable.”

As Thomas Jefferson might interject at this point, “Well, duh.”

Mansfield, however, disdains the notion that liberties of any sort inhere in the individual, urging instead that we accept a crude utilitarian premise. The needs of the many – as perceived by the lawless executive -- nullify the rights of the few:

“Civil liberties are for majorities as well as minorities, and no one should be considered to have rights against society whose exercise would bring society to ruin. The usual danger in a republic is tyranny of the majority.... But in time of war the greater danger may be to the majority from a minority, and the government will be a greater friend than enemy to liberty. Vigilant citizens must be able to adjust their view of the source of danger, and change front if necessary. `Civil liberties' belong to all, not only to the less powerful or less esteemed, and the true balance of liberty and security cannot be taken as given without regard to the threat.”

It's important to recognize – as Mansfield certainly must – that the present argument over “the true balance of liberty and security” does not involve only “civil liberties,” but also the most basic individual rights and immunities long recognized in our Anglo-Saxon culture. We've long since ceased to argue over how to fine-tune the constitutional assignment of powers, or even over whether the Constitution should be followed at all.

At this point, freedom-focused people are trying to restore the Magna Carta by undoing the Bush Regime's repeal of the Writ of habeas corpus.

Regarding that fundamental, definitional due process guarantee – the literal foundation of our system of liberty under law -- official position of the Bush Regime today is exactly the same as that of Hitler's regime when it suspended habeas corpus on February 28, 1933: Any individual, citizen or non-citizen, can be deprived of the law's protection at the whim of the Executive, and imprisoned indefinitely without legal recourse.

Totalitarianism could be described as the creation of order without law through a regime claiming limitless power (“power without limit, resting directly on force, restrained by no laws, absolutely unrestricted by rules,” as Lenin put it).

Professor Mansfield's protracted exercise in undergraduate-level sophistry is intended as a defense of the Bush Regime's version of this lawless order. What better evidence can we find to support the once-controversial proposition that “Harvard Hates America”?

Please be sure to stop by The Right Source.

The Second Amendment: The Constitution, In Miniature

"We are here now to protect you, and no one has a need for a weapon any more.” --

A Khmer Rouge soldier sent to disarm Cambodian peasants, as recounted by a survivor of the Cambodian genocide; The New Yorker, January 24, 1994

It is because Daniel Lazare makes no effort to disguise his contempt for the US Constitution that he enjoys the luxury of candor about its provisions.

In his 1995 book The Frozen Republic, Lazare assailed the Constitution for “paralyzing democracy” -- which was one of the key objectives of the Framers, who did not share Lazare's enthusiasm for “majoritarian absolutism” (as one critic aptly described the author's philosophy).

To his credit, Lazare doesn't claim to have found some previously concealed progressive subtext in the Constitution, or offer flatulent platitudes about the “true” meaning of the “living” document. He admits that the Framers created a system in which the powers of the State were to be limited by a written text and not easily expanded through demagogic appeals to the mob.

In similar fashion, Lazare's October 1999 Harper's magazine essay “Your Constitution is Killing You: A Reconsideration of the Right to Bear Arms,” Lazare – a stout supporter of civilian disarmament – offers the following rueful admission:

“The truth about the Second Amendment is something that liberals cannot bear to admit: The right wing is right. The amendment does confer an individual right to bear arms, and its very presence makes effective gun control in this country all but impossible.”

Even here, Lazare misses the most important point, namely that neither the Second Amendment nor any other part of the Constitution could be said to “confer” rights of any kind; rather, they protect unalienable rights by specifying what government can do, and a few of the myriad things it is prohibited from doing.

(A brief digression: Even in the absence of the Second Amendment, the Constitution would protect the individual right to bear arms, since it does not confer on the federal government the authority to disarm the citizenry. The Amendment is an important supplemental protection, however, in that it denies the central government the luxury of using its delegated powers – for instance, that of regulating interstate commerce – to infringe on that right.)

Despite his subtle denial of innate individual rights, Lazare's admission against interest is useful, as are his pointed words of rebuke to fellow “liberals” (here meaning left-leaning collectivists, not lovers of individual liberty) who interpolate their political prejudices into the Constitution's text.

“We have long been in the habit of seeing in the Constitution whatever it is we want to see.,” Lazare admits. “Because liberals want a society that is neat and orderly, they tell themselves that this is what the Constitution `wants' as well.” That desire translated into, among other things, a “purely collectivist reading” of the Second Amendment, in which the purported right mentioned in the text is that of states to create and regulate “select” militias; this is in contrast to the “individualist” view, in which the right to bear arms – like those of speech, freedom of worship, and all other rights and immunities protected in the Bill of Rights – is exercised by the individual.

The “collectivist” view, Lazare writes, “is becoming harder and harder to defend” as more honest scholarship – that is, honest scholarship, more widely reported – demonstrates what should be obvious: The American Founders, who had wrested independence from Britain in a war that began with gun-toting citizens repelling an effort to disarm them, were determined to protect the individual right to armed self-defense. And nothing could be more alien to their intentions than the “collectivist” view of firearms ownership.

“`Standing armies,' the great bugaboo of the day, represented concentrated power at its most brutal; the late-medieval institution of the popular militia represented freedom at its most noble and idealistic,” writes Lazare. “Beginning with the highly influential Niccolo Machiavelli, a long line of political commentators stressed the special importance of the popular militias in the defense of liberty. Since the only ones who could defend popular liberty were the people themselves, a freedom-loving people had to maintain themselves in a high state of republican readiness. They had to be strong and independent, keep themselves well armed, and be well versed in the arts of war. The moment they allowed themselves to surrender to the wiles of luxury, the cause of liberty was lost.”

Does anybody really think it's a good idea to let Bucketheads like these have all the guns?

Lazare is warily circling a point that he apparently doesn't want to make clearly, so I'll do it for him:

The Second Amendment does explicitly protect an individual right to bear arms, but its real significance is that it denies the government a monopoly on the legitimate use of force.

The typical political science textbook published in the last five decades will either assert or assume that government claims a monopoly on force. This is Lenin's vision -- “power without limit, resting directly on force” -- not that of Jefferson, et. al. -- namely, that of governments as contingent entities “deriving their just powers from the consent of the governed,” and subject to abolition when they exceed their modest mandate.

They can't operate a parking brake on their federally funded Gestapomobiles, but they're uniquely qualified to carry and use firearms.

Lazare, like every other commentator, politician, or scholar who wants to transmute the individual right to armed self-defense into a limited, State-granted privilege, is on Lenin's side of this argument. He's simply more honest than most, even though his concessions are heavily seasoned with condescension toward the supposedly archaic views of the Framers.

“Since `we the people' are powerless to change the Second Amendment, we must somehow learn to live within its confines,” he writes as if sighing in weary frustration. “But since this means standing by helplessly while ordinary people are gunned down by a succession of heavily armed maniacs, it is becoming more and more difficult to do so.... There is simply no solution to the gun problem within the confines of the U.S. Constitution.... Other countries are free to change their constitutions when it becomes necessary. In fact, with the exception of Luxembourg, Norway, and Great Britain, there is not one advanced industrial nation that has not thoroughly revamped its constitution since 1900. If they can do it, why can't we? Why must Americans remain slaves to the past?”

Lazare's writing is shot through with the sort of smug historicism one would expect of a modestly bright undergraduate: How could a group of unenlightened white males – most of them Christians of a repellently literalist sort – who gadded about in powdered wigs and tricornered hats possibly have anything worthwhile to say about our modern society and its problems?

The obvious answer is that the Framers knew a great deal about human nature as magnified by political power, and that because of their sound insights the US Constitution, unlike a milk carton, doesn't contain an expiration date.

Nothing that has occurred since 1787 has invalidated the wisdom of the Framers in decentralizing political power and denying the State a monopoly on force. Exactly the opposite is the case: When viewed in retrospect across centuries littered with war and political mass murder carried out by states that claimed a monopoly on coercion, the honest observer whose mind is not hostage to collectivist delusions is astonished at the Founders' foresight.

“Heavily armed maniacs” of the sort Lazare alludes to can kill dozens of unarmed innocents. Heavily armed maniacs in the employ of the State, and clothed in its supposed authority – the oh-so-helpful Khmer Rouge soldier quoted above, for example -- have killed tens of millions of disarmed victims. Important though the first consideration is when we're discussing the right protected by the Second Amendment, it is the latter that best illustrates why that Amendment could be considered the Constitution in microcosm.

Make sure to drop by The Right Source.

Will Saudi Arabia Bail Out Bush Again?

The unspoken – or at least rarely spoken – consensus of establishment scholars holds that presidential “greatness” is made manifest in an aggressive disdain for the Constitution. The “great” men who dominate the presidential pantheon -- tyrants and usurpers like Lincoln, Wilson, and FDR -- ignored the constitutional limits on presidential authority, invoking wartime emergencies to justify centralization of power in the executive.

George W. Bush's accomplishments in this realm may elevate him over those three titans of the post-constitutional presidency. This isn't because he's mastered the Machiavellian subtleties of power, or devised some exotic new rationale for presidential autocracy. Rather, it's because his boundless sense of personal privilege is a perfect fit for the ideologues who surround him – war-obsessed social engineers who understand the evil symbiosis between perpetual war abroad and a dictatorial presidency on the domestic front.

Last Sunday, Secretary of State Rice dropped several gravid hints that in the event Congress seeks to reclaim its war powers – by repealing or modifying its 2002 “authorization” of war against Iraq, by withdrawing funding for the war, or by imposing conditions on the continued deployment of troops to the region -- Bush will simply ignore its enactments.

After condemning Congress for what she called “the worst of micromanagement of military affairs,” Rice was asked on Fox “News” whether Bush would consider himself “bound” by legislation requiring the withdrawal of combat troops within 120 days.

“The president is going to, as commander in chief, need to do what the country needs done,” she replied, striving to craft a sentence that was at once clear with respect to the Regime's assertion of presidential power, and opaque regarding the crimes it contemplates against the Constitution.

In setting out its version of the doctrine Rice alluded to, the Organization Book of the German National Socialist Party used more elegant language, insisting that the chief executive, unlike the legislature, embodies the “collective will” of the people, and exercises power that is “independent, all-inclusive, and unlimited,” for which he is accountable “only to his conscience.”

Translated from German into soundbite-ready contemporary English, that's a pretty good summary of the Bush doctrine of executive power.

There is little appetite on Capitol Hill for a face-off on the matter of war powers: The Democrats are content to nibble at the margins of Bush's Iraq policy. And this is pretty much all they can do, since most Democrats in Congress signed off on the 2002 resolution that supposedly authorized the war in Iraq – a measure with no constitutional legitimacy through which Congress abdicated its exclusive power to commit our nation to war.

In addition to vesting the war decision in Congress, the Constitution gives the legislative branch plenary authority over funding and regulating the military. The role assigned to the president is entirely contingent and derivative. Congressional “micro-management” of a war, whatever one thinks of it from a prudential perspective, is entirely appropriate under the Constitution.

Given that the Iraq war was illegitimate from the beginning, the only suitable course of action would be for Congress to de-fund it, and order (yes, order) Bush to bring the troops home.

Were we the moral, Christian nation we advertise ourselves to be, after our troops were back Congress would issue a national apology to Iraq for the unprovoked, unjust war our government launched upon it, and order (yes, order) Bush and his handlers to travel to Baghdad to deliver it in person. It would then enact a measure providing reparations to Iraq, which is the duty of every nation that launches a war of aggression. (Reparations in this case would be a sum sufficient to repair the country's infrastructure and oil industry; this would make it economically viable once again, and would be far less expensive than continuing the war.)

This is a whole lot of ain't-gonna-happen, of course, even though it should.

What could happen, however, if opposition to the war continues to build, might be a version of the conflict that erupted at the end of WWI (described in Thomas Fleming's superb book The Illusion of Victory), when Congress threatened to issue a formal declaration ending the war. Woodrow Wilson, who by that time had descended into a state of self-enraptured megalomania rivaling that of Bush, intended to keep US troops in Europe to use in punitive action against Germany had that nation – already starving and prostrate as the result of a food embargo – resisted any provision of the Versailles Treaty.

Wilson was eventually forced to concede, and “normalcy” was restored. I wouldn't expect that the delusional man-child currently occupying the Oval Office would prove to be as reasonable were Congress to enact a binding measure ending the war.

If Congress were to cut off funding, it's possible that Bush and his cronies, who (as mentioned yesterday) include veterans of the Iran-Contra plot from the mid-1980s, would ignore the legislative branch and turn to Saudi Arabia or other shadowy sources for funds to continue the war.

After all, as Seymour Hersh points out, the Bush regime's covert operations in the Gulf region have been drawing on “many, many pots of black money, scattered in many places and used all over the world on a variety of missions,” in the words of a Pentagon consultant. “The budgetary chaos in Iraq, where billions of dollars are unaccounted for, has made it a vehicle for such transactions, according to the former senior intelligence official and the retired four-star general.”

In many of those clandestine operations, Hersh points out, the administration has left “the execution or the funding to the Saudis, or by finding other ways to work around the normal congressional appropriations process, current and former officials close to the Administration said.” During a “surprise meeting” in Saudi Arabia last November, King Abdullah warned Dick Cheney “that Saudi Arabia would back its fellow-Sunnis in Iraq if the United States were to withdraw.” In the interest of holding the Shi'ites at bay, one intelligence official told Hersh, “The Saudis are starting to use their leverage—money.”

Hey, get a room: Bush and Saudi King Abdullah

In the event that Congress were to cut off money for the Iraq war, would it be possible that George W. Bush – whose business career was bailed out by the Saudis – would turn to the Saudis for stopgap funding for his illegal war?

After all of the other crimes he's committed against our Constitution and national independence, why would Bush be reluctant to do this, if the occasion presented itself?

Attention, Rep. Walter Jones: The Constitution is Calling

I desperately want to support HJ Res. 14, a bill sponsored by Representative Walter Jones (R-North Carolina) that is intended to pre-empt the Bush regime's plans for war with Iran.

The resolution consists of two brief clauses:

“No provision of law enacted before the date of the enactment of this joint resolution shall be construed to authorize the use of military force by the United States against Iran.”

This statement is obviously true, and should thus be unnecessary. However, various representatives of the Regime – including but not limited to Commissarina for External Affairs Condoleeza Rice – have brazenly and repeatedly claimed that Bush has the innate authority to order a military attack on Iran, or any other nation, at his discretion.

In fact, as Republican Senator Charles Hagel pointed out in a recent interview with GQ magazine, in late 2002, when the Bush Regime was maneuvering the nation into war with Iraq, it submitted a draft resolution to Congress that would have authorized a war against the entire Middle East.

The White House's proposed resolution, Hagel recalled, would have permitted them to “go anywhere in the region.... They could go into Greece or anywhere. Is central Asia in the region? I suppose! Sure as hell it was clear they meant the whole Middle East. It was anything. It was literally anything. No Boundaries. No restrictions.”

The Regime has never permitted something as trivial as the Constitution or the law to impede its objectives, and it has proceeded -- in its demented, power-enraptured, reality-aversive way – as if its original resolution had been passed.

How do we know this?

The Regime has said as much in congressional testimony.

In an appearance before the Senate Foreign Relations Committee in October 2005, Ms. Rice was asked whether the Bushling would circumvent congress in ordering a military strike against Iran or Syria.

“I will not say anything that constrains his authority as commander-in-chief,” replied Rice, a non-responsive answer that assumes the president has the authority to launch a war against either country without a congressional declaration. When pressed by Senator Paul Sarbanes (D-Md.) as to whether congressional authorization would be sought before military action was ordered, Rice continued in the same vein: “The president never takes any option off the table, and he shouldn’t.”

In a tidy phrase, the Busheviks assume that all power resides in the executive, including the unilateral power to expand the war into Iran.

(For a stunning illustration of how widespread this doctrine is in the totalitarian death cult that was once the Republican Party, watch this clip of Virginia Representative Eric Cantor insisting – with a dutiful subservience one usually sees in Pyongyang – that the president didn't need congressional authorization to attack Iraq, and needs none to expand the war to Iran. It's understandable if you entertain the fleeting thought that Cantor is another of Stephen Colbert's satirical creations.)

Rep. Jones' amendment restates the obvious: Bush has never been authorized to prosecute a war against Iran. We have reached the stage in our nation's descent into full-orbed despotism that stating the obvious about such matters is not only necessary, but courageous.

It is in its second clause that Rep. Jones' resolution breaks down:

“Absent a national emergency created by an attack by Iran, or a demonstrably imminent attack by Iran, upon the United States, its territories or possessions or its armed forces, the President shall consult with Congress.”

Well ... no.

Trying to arrest the Regime's drive to war with Iran with this language is a bit like trying to lasso a locomotive with linguini. This formulation leaves the initiative with The Great And Glorious Decider and his handlers. It is that pack of felons who would determine whether Iran poses the threat of a “demonstrably imminent attack.” And as presently written (read it carefully), this provision would permit Bush and his handlers to start a war without so much as consulting with Congress if they can contrive a suitable rationale.

Only Congress can declare war. It's not a matter of the president “consulting” with Congress, or Congress issuing some anodyne resolution allowing the president to make the call. That power is vested in Congress by the Constitution, and anything other than a formal, explicit declaration of war by that body is inadequate and improper.

This is certainly not to say that all wars declared by Congress are morally defensible, since most of the declared wars in our nation's history were not. It is to say that an undeclared war is facially unconstitutional, illegal, and morally impermissible.

The fatal problem with Rep. Jones' resolution is this: As things stand right now, the Busheviks are already claiming that Iran has attacked our occupation forces in Iraq.

That was the point of last weekend's highly classified, double-secret-probation, one step removed from the Cone of Silence briefing by anonymous officials who offered an “assessment” that Iran has been smuggling “explosively formed penetrators” to Iraqi insurgents for use against U.S. Personnel. Without adducing anything resembling, you know, evidence or proof or stuff, the “official” insisted that this plot involves officials at the “highest levels” of the Iranian regime.

As Patrick Cockburn points out, what this mystery-enshrouded guy was describing are improvised explosive devices of a sort that have been used by every guerrilla army for the past century. And it seems a touch unlikely, at least to rational people, that Iran's Shiite regime, which has been handed Iraq on a platter thanks to the U.S. Invasion, would undermine that achievement by supporting a largely Sunni insurgency.

The purpose behind the Bush Regime's “revelation” is utterly transparent, its evidence just as palpably false – so why was the charade of secrecy necessary? My guess is that this was a requirement imposed by whatever “official” was used as the aperture for the Regime's disinformation cloaca. The last fellow who was used thus was Colin Powell, and his reputation has never recovered.

Freedom-obsessed information junkies are invited to visit The Right Source for news, commentary, and Kevin Shannon's radio program.

From "Surge" to Slavery

If you want a good measure of how little the Regime cares for its subjects, consider this fact:

Members of local draft boards, who would be given the power to make life and death decisions regarding deferments or exemptions in the likely event that Congress decides to create a slave army, are required to receive only four hours of training each year.

Our nation is afflicted with 2,000 of the five-member draft boards – I prefer to call them Selective Slavery Soviets (SSS). Their members are appointed by the president, and the selection criteria aren't particularly demanding. And to judge from comments made by members of various boards to the press, the most important qualification is an eagerness to serve the interests of the State, rather than its victims.

“If there is a draft,” comments Steve Zurawski, who belongs to a draft board in Chicago, “we go into action. It's a necessary evil.”

That description is exactly half right. To fight a defensive war, a draft is never necessary. Conscription only becomes “necessary” when policy-makers are pursuing evil objectives.

Another draft board member, Jack McInerey Jr., insists that it's wise to keep the SSS network up and running, because otherwise “it would take a minimum of six weeks to organize a draft.”

“Do you want to give your enemy a month and a half to attack your nation?” asks McInerey. “I don't think so.”

Notes the Chicago Sun-Times: “The idea of mandatory military service in the United States can be traced back as far as the Revolutionary War, but the concept of panels of community members to help with the process did not appear until World War I.”

Note how subtly the author of that sentence misleads the reader by tracing the “idea” -- but not the practice – of conscription back to the founding era. The idea of a military draft was considered and rejected by those who drafted the U.S. Constitution.

On May 29, 1787 -- the first working session of the Philadelphia Convention -- Virginia Governor Edmund Randolph presented a detailed dissection of the Articles of Confederation and its deficiencies. The very first liability listed by Randolph, as recorded in James Madison’s Notes, was the fact that the Articles “produced no security against foreign invasion; congress not being permitted to prevent a war nor to support it by their own authority….”

With respect to matters of national defense, the chief weakness of Congress under the Articles of Confederation was its inability to raise money to pay recruits, by Randolph's reckoning.

Where it was necessary to muster troops to defend the Confederation, Randolph continued, with “neither militia nor draughts [drafts] being fit for defense on such occasions, enlistments only could be successful and these could not be executed without money."

Note this well: Randolph, a figure of no small consequence at the Convention, acknowledged that drafts are not “fit for defense” in the event of a sudden attack on our nation.

While Randolph and other Federalists at the Convention insisted that a stronger central government was necessary in order to defend the infant American republic from foreign aggression, their proposed remedy was to provide Congress with the means to raise money to pay a small professional army. Not once during the debates at the Convention was it suggested that the central government should have the authority to conduct a draft of the general population. Agreement was reached that the federal government – through Congress – could call state militia to the active defense of the union, but that the states would not completely surrender control over the militia.

The session of August 18 dealt with that question in some detail. A compromise was proposed by George Mason empowering the central government to create a “select militia,” which he considered “as much as the General Government could advantageously be charged with.” This suggestion failed to find favor with many of the delegates, as was referred to a select committee for further study.

When the issue was taken up again on August 23, the discussion focused on the power of Congress to regulate and discipline militia called to defend the union.

From those discussions emerged the congressional power to “raise armies” (with a two-year limitation on appropriations for the army) and to call the militia into the service of the United States when necessary for the common defense. Once again, none of the delegates suggested that Congress, or any other branch of the federal government, would be permitted to conscript citizens into a national army.

“After circumscribing the central government’s power to draw the militia into federal service with such careful restrictions, the delegates could not possibly have allowed the federal government to exercise direct control over the citizens by permitting a draft into the regular army,” observed legal scholar Leon Friedman in a 1969 Michigan Law Review article. “The matter was so impossible to imagine, given the circumstances and ideological climate of the times, that no voice was raised against it…. All that was given by the grant [to Congress of limited power to raise armies, and call out the state militia], was the power to organize and enlist a federal, professional army which – the delegates thought – would consist of a limited number of garrison troops. That power was given grudgingly, only in the light of the severe hardship Congress had experienced through the Revolution in depending solely on the states for manpower and military supplies.”

The idea that citizens could be compelled “to bear arms for a national authority, and work against their most profound interests, never occurred to the framers,” continues Friedman. To endorse that concept “would have been a contradiction to their entire political heritage, manifestly inconsistent with their sense of the delicate balance between liberty and power, between the appetite for oppression and the instinct for resistance. If the citizen had any military obligation, it was to his local militia.

Many of the grievances listed in the Declaration of Independence were inspired by abuses of military power by the British Government at expense of the rights of the colonists. Similarly, many of the provisions inscribed in the Constitution and Bill of Rights (such as the limitation of appropriations for the Army to two years, and the Third Amendment’s prohibition of the quartering of troops in private homes) were inspired by well-entrenched, and amply validated, American concerns about the potential danger of military establishments being employed against the people as occupation forces.

Given the care with which the Framers of the Constitution hedged and qualified congressional power to create military establishments, it is untenable to believe that they granted Congress the power of conscription.

It is true that several of the states had mechanisms to conscript citizens into militias. The chief purpose of those bodies, however, was not to fight on behalf of the union, but rather to defend each state in the event of internal insurrection or other crises (such as conflicts with Indians). While Congress had the power to call militias into service of the union, it was clearly understood that the militias could also be called into service to defend individual states from a rogue central government – a form of interposition explicitly endorsed by Madison in Federalist essay 46.

Once again, this fact is impossible to reconcile with the idea that the central government had the power under the Constitution to conscript the very militiamen upon whom the states would rely as an ultimate check against that same central government.

The War of 1812 came about, in large measure, because of the British government’s practice of “impressing” American citizens – that is, abducting American sailors on the high seas, accusing them of being deserters from the British Navy, and forcing them to serve aboard British ships. Thus it’s reasonable to say that the war was, to some extent, based on a profound opposition to conscription, albeit in this case conducted by a foreign regime.

In our nation’s republican infancy, the citizens of most states looked on the federal government in Washington as something akin to a potentially hostile foreign power (an attitude desperately in need of revival, in my view). Despite misgivings about the necessity and ultimate purposes of the war, Americans – even those in restive New England -- were willing to enlist in both militia units and the regular Army in order to defend the union from Great Britain.

However, widespread disaffection and mutiny spread through both the militia and the Army after it became clear that the “War Hawks” in the Madison administration sought to expand the war into Canada. Governors of New England states refused to act on requisitions of militia for a march on Montreal, and “guardhouse lawyers” descended on militia camps to inform soldiers that the federal government had no constitutional authority to deploy them in foreign wars.

“Rigid Republican doctrine, apart from party loyalty, also harmed the war effort,” records historian Robert Allen Rutland. “Republican views concerning the use of the state militia proved to be a genuine albatross [to President Madison and his administration]. In 1798 Republicans had argued that the Constitution limited the use of the militia (today’s National Guard) to executing federal laws within its borders, suppressing insurrections, and repelling invasions. Could the president call on the militia to invade Canada or the Floridas [at the time not part of the United States]? No, said doctrinaire Republicans and Federalists alike….”

This consensus against using the militia as a foreign expeditionary force was complemented with an equally widespread rejection of conscription – even after the land war against Great Britain took a disastrous turn.

By June 1814, the U.S. Treasury was depleted, the federal government’s credit lines were stretched tauter than a Hollywood face-lift, Napoleon had been neutralized by a British-led coalition (meaning that London would soon be able to turn its attentions toward the U.S.), and peace negotiations were stalling. Madison instructed his negotiators at the peace table to drop the U.S. demand that British end the practice of impressment .

Ironically, the U.S. peace negotiators who had previously demanded an end to impressment operated under the authority of Secretary of State James Monroe – who, as Secretary of War, would later submit the proposal for a U.S. military draft.

Within weeks, this diplomatic retreat was matched by a literal retreat after Washington, D.C. came under British naval bombardment. On August 24, President Madison fled into the woods as British troops burned the White House. First Lady Dolley Madison, seeking to protect official papers, household china, and a portrait of George Washington, left the presidential residence literally minutes ahead of advancing British troops. (A freak – or perhaps providential – tornado, coupled with the explosion of a nearby powder magazine, deterred British troops from actually sacking the White House.)

Losing ground in a desperate war with the world’s most powerful empire, suffering the indignity of an attack on our Capitol City and its most visible symbol, the United States faced a crisis unlike any it has experienced either before or since.

Indeed, the situation in which our nation found itself in late 1814-early 1815 provides an ideal test case for one of the arguments favored by some reluctant proponents of the draft: The claim that in the event of a foreign attack that literally threatens our national survival, conscription may be necessary as an ultimate means of national self-defense.

Compelling as that argument may seem to those who consider it hypothetically, the remarkable fact is that it was rejected by Congress when our nation actually confronted the possibility of losing the war to Great Britain.

The Monroe conscription proposal was placed before Congress in December 1814. The immediate congressional reaction – primarily from Republicans, but also from some Federalists – was one of astonished outrage.

“The power claimed is, doubtless, vastly greater and more dangerous than any other possessed by the Government,” protested Senator Jeremiah Mason of New Hampshire. “It subjects the personal freedom of every citizen, in comparison with which the rights of property are insignificant, to the arbitrary discretion [of government]. Had there been the intention of granting such power, would there not have been some attempt to guard against the unjust and oppressive exercise of it, as was done in the granting of power less important?”

Mason scored a telling point by recalling that the Madison administration had described impressment – which he described as a form of naval conscription -- as “utterly repugnant to our constitution and laws.” “The honorable Secretary [James Monroe] when he drafted those instructions, knew not how soon he should be directed to contend for the contrary doctrine.”

Easily the most eloquent and forceful opponent of the conscription proposal was Congressman Daniel Webster of Massachusetts.

“It was `usurpation’ pure and simple, cried Webster,” recalls biographer Robert Remini. “If such as bill is attempted, he warned, `it will cause a storm such as was never witnessed before.’ But the government was desperate. It had no money, and its army was slowly evaporating. In addition, many states had refused repeated requests for militia troops.

One version of Monroe’s plan did pass the Senate (remarkable, in light of the fact that the Senate as then constituted was intended to represent the interests of the state governments). Describing the plan as “wicked and violent,” Webster warned that it “will be a dead letter in New England.” Angered that proponents of the draft insisted that it was authorized by “implied powers,” rather than by any specific grant of power in the Constitution, Webster eviscerated the proposed draft in a lengthy speech on December 9:

“Is this, sir, consistent with the character of a free government? Is this civil liberty? Is this the real character of our Constitution? No sir, indeed it is not. The Constitution is libeled, foully libeled. The people of this country have not established for themselves such a fabric of despotism…. Where is it written in the Constitution, in what article or section is it contained, that you may take children from their parents, and parents from their children, and compel them to fight the battles of any war in which the folly or the wickedness of government may engage it?…. If the Secretary of War has proved the right of Congress to enact a law enforcing a draft of men out of the militia and into the regular army, he will at any time be able to prove, quite as clearly, that Congress has the power to create a Dictator.”(Spelling in the original.)

If Congress approved this patently unconstitutional and undeniably despotic measure, Webster continued, “It will be the solemn duty of the State Governments to protect their own authority over their own militia, and interpose between their citizens and arbitrary power. These are among the objects for which the State Governments exist; and their highest obligations bind them to the preservation of their own rights and the liberties of their people.”

The conscription proposal was conspicuous on the agenda of the Hartford Convention, which met shortly after Webster delivered his speech. Far from contributing to the defense of the Union, the proposed draft helped fuel a movement that very nearly tore it apart.


A little more than a week ago, Congressman Charles Rangel of New York introduced the "Universal National Service Act of 2007," which would not only re-instate the draft, it would extend it to all Americans of both sexes from ages 18 to 42. This measure is a transliteration of the eighth plank of the Communist Manifesto, which dictates a universal liability for all to serve as the state directs.


Rangel's bill would make all Americans from ages 18 to 42 the property of the President, to use as he sees fit in either military, homeland security, or other "national service" functions. The bill is written in such a fashion that it would provide a new pool of conscripts for immediate use in Iraq and Afghanistan if -- make that when -- the "surge" results in a larger and bloodier mess in the Middle East.


Who are the five people in your community who would have life-and-death power over the future of your children? Now is a good time to find out.

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