Federalist 39
In essence, Madison has two theses. The first involves the nature of a republic and whether or not this government is a republic. The second concerns the whether or not this "new" system creates a system in which the states have sovereignty (this is what he means when he uses the term "federal") or does it create a unitary government with sovereignty in the national level.
Two questions:
1) In the light of our current war on terror, has the notion of republicanism with its insistence on limits on the national government become as one administration official suggested a "quaint" anachronism? If so, ? If not, what limits should remain? A perusal of Amendments 1, 2, 3, 4, 5, 6, 7 & 8 plus a review of the concept of habeas corpus would be useful to give you context and ammo.
2) What role, constitutionally, does a state government have in the war on terror?
posted by Mr. K @ 9:19 AM
17 comments
17 Comments:
Wow. Two for two...either I am super-nerdy or just more organized than normal.
With the Bush Administration's founding Homeland Security, the TSA, the over-the-top airport security, and especially the invasion of Afghanistan, certianly people could say that Bush is outside the national government's authority and eliminating Consitutional limits. However, researching the Consitution and the reading of Fed. 39, I honestly belive that the government did not go outside of its borders with the war on terror. I agree that the counter-terorism measures may seem rediculous, the governemnt was simply filling the gap in authority. To understand what I mean (because I was not clear enough), consider a dougnut. Prior to 9/11, the government was providing homeland security to those citizens living in the middle of the donut-the hole. After 9/11, the government expanded measures to the farthest reaches of the doughnut. So, while staying inside their authorty by passing the HSA and TSA through Congress, the war on terror did not leave the doughnut.
Focusing on the issue of state authority, I think that a state needs to protect its own property. For example, when celebrities come to the state, they need to protect them from harm. Essentially, the state must protect its entire infastructure against terrorim, or mind its own doughnut, if you will continue that miserable analogy. I think that thew states should support the efforts of the national government yet provide more reasonalbe solutions if nessecary or possible.
I forgot to add this: I think that you could tie the ciritiscm endured by the Bush Administration to the agony Thomas Jefferson put up with when undergoing the Louisiana Purchase. Many people were frustrated with Jefferson's supposed overextension of power, and the issue is apparently still debated today, I think. Also, you could tie this issue to the more recent Guantanamo Bay debates over prisoner rights. I think that this issue has caused the left wing Americans to critiscize the governments elimination of rights for all Americans. From a Conservative standpoint, they are not citizens, so they lose several consititutional rights, like Trial by Jury and such. The conservatives, overall, think that these prisoners are not being torutred or killed off, the Americans are simply using them for information...both of these polarizing issues tie in to the War on Terror
The Constitution clearly states that the Federal government (particularly the Legislative Branch) provide for a national defense. Name a state that could adequately and efficiently defeat terrorism and protect itself in war. I would be willing to wager that no state could do that. So even as the government in DC continues to expand in regards to the War on Terror, it is necessary and expressly permitted by the Constitution. I do not feel that any of my rights given to me by the Bill of Rights have been broken by the recent federal crackdown on terrorism. Look at Code Pink or Cindy Sheehan, if it was up to me, I would have deported all of them. However they are allowed to keep doing what they do. The two things people might have a problem with are the wiretapping and the keeping of prisoners, particularly in Guantanamo Bay. But even these measures do not violate the Constitution, the Geneva Convention, or even natural rights. For starters, the US only wire-tapped overseas calls. Which makes it a very small minority, but continuing on with that, who cares if your calls are being overheard. The federal government does not do anything if you are talking to your illicit lover. They are looking for terrorist activity. So unless you are plotting to blow something up, it doesn’t matter. They way I see it, those who care are the ones who are planning stuff. If people complain about it, we should just do it more, and catch those scheming to terrorize things. Moving on, the Geneva Convention states that enemy combatants must be in uniform. The terrorists we capture and put in our Cuban base are not in uniform, so anything we do for them is not required. We are just being nice. They are prisoners of war; imagine if in World War II we had crazy left wingers calling to release the captured Nazis. It is not any different now. Let us not forget the instances where we have released prisoners from Guantanamo Bay, only to recapture them shooting at our soldiers in Afghanistan. We are in a war; we should not have to deal with justifying why we are holding people trying to kill us. I believe that whatever precautions are necessary to protect our country should be more than welcomed. Regardless of what people say about the War now and the ways in which we are preventing terrorism, the simple fact is we haven’t been attacked in almost 7 years. Terrorists are trying harder than ever to hit us, major attacks have happened in many European countries in the past few years, but no one has been able to attack us since we started all of these new programs. Terrorists hate our way of life, America, freedom, and Christianity. Islamic Terrorism (yes, I said Islamic. Like Giuliani, and unlike the entire DNC, I too am not afraid of offending terrorists) targets the nation. It is the federal government’s job to protect the nation, as stated by the Constitution. So states can send representatives to Congress to address the war on terror, or try to get an amendment started, but other than that, I believe it’s a federal issue. Federalist 39 contends that the Constitution is a mix of federalism and a national government. I agree, but when the Constitution gives the right to protect us to the national government, there is not much question about who should be doing the protecting.
Ruling in a time of war is very different from ruling in a time of peace. This has at least been known since the Roman Republic, when individual leaders would be granted complete power for six month periods during times of war. I hold the opinion that the national government should be allowed to do what is necessary to protect the citizens of the United States. I realize that this gives the government quite a great deal of power, but I believe that if this power ever reaches an abusive extent, the courts will step in and reestablish order. George Bush made a promise to the American people on September 12th 2001 saying, “The United States will hunt down and punish those responsible for these cowardly acts.” As far as I am concerned, until he achieves that goal, whatever needs to be done, must be done. The issue over Guantanamo is something that I do not have a very clear opinion on yet. At first I was in complete support of the system, but after hearing about Maher Arar, the Canadian who was wrongfully captured and tortured, I began to have doubts. If Guantanamo was always used for actual enemies of state then it would make sense, but when mistakes are made like that I am not so sure. Guantanamo is an example of how the courts stepped in when the central government took its power too far. That whole situation does not go against the constitution though, because Arar is not a United States resident, thus he is not protected by the writ of habeas corpus in the Bill of Rights. The Patriot Act seems to be a particular issue referenced to by the majority of people who think the national government is abusing its power. I have no problem with this act and once again think that if anything is done that really intrudes on my rights, the courts will step in and establish order. Those who are against it must either have something to hide or just want to argue for the sake of it. So I do not believe that any limits need to be put on the national government because it has its own division,the judicial branch, which has the purpose of limiting its activity. State governments’ roles in the war on terror are solely domestic. Their concentration is place on protecting major cities and airports through police forces and state run bureaus of investigation. Of course there are also federal institutions like the FBI and the TSA which also serve these purposes as well, but unlike the federal government which send troops over seas, the state governments do not choose to do so.
I think that the government needs to sit down and read the constitution in a group, and then get hit on the head so they remeber it. Im sure it will be they first time many of they have even seen the document. While the war in Afghanistan was started by a without a declaration of war, it was important to national security. But the invasion of Iraq went outside the constitution, and no measure was passed to give that authority, unlike the gulf of tonkin resolution ( which is no longer in effect) which allowed LBJ to send comabt troops to Vietnam. Also, the patriot act is criminal. And not to agrue with crouch, but the courts arent going to challenge it cuase they favor Bush. It is possiable to fight the war on terror while protecting the rights of U.S. citizens. If i wanted to live in a police state I'd move to North Korea.
And as far as the powers of states, they should keep up police forces as well as providing extra support to government agencies at air and sea ports.
(Sorry this is so disjointed. I had a lot of thoughts and wasn't exactly sure how to group and organize them.)
Michael and Jarrod both hold that the Constitution is only supposed to apply to the citizens under it, except when the Constitution itself outlines specific rules for non-citizens. HOWEVER to examine it from another angle: the Constitution provides rules for the government, and it should apply to all actions of the government, no matter who is affected by those actions. True, the first priority of American law is its citizens, but I cannot accept that this implies the government gets to do whatever it wants to non-citizens. Remember that the rights given to American citizens under the Constitution are given because they are believed to be rights of humans, not privileges of Americans. Therefore although the government is not legally bound to protect the rights of non-citizens, it cannot disregard them completely.
Crouch makes the point that Bush is following through on his promise...the problem which has arisen, I think, is that the promise was quite vague. There's no obvious limit to what it can imply--and limitless government is something that we try to avoid, yes?
Article 1, section 9: "The Privilege of the Write of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion of the public Safety may require it."
It is painfully obvious that the Constitution does not (and, in all practicality, cannot) define exactly what circumstances would constitute an 'invasion of the public Safety". The fact that this and many other aspects of the Constitution are quite subjective creates a problem. Who gets to decide when the Writ can be constitutionally suspended? In trying to answer that we probably would end up with a tangled mess of authorities and processes.
The notion of Republicanism has certainly not disappeared or become a "quaint anachronism". I think the problem is not with the foundations of the government, but with contemporary circumstances and with the individuals elected to the government. If the people at large object, then the system should allow for the gradual replacement of officials with people who accurately represent the opinions of the people at large. The system is not built for immediate response to the wishes of citizens. It never has been. It is constructed to be slow and inefficient. Soon enough the people will elect representatives who will represent their views sufficiently. The slow pace of it is unfortunate, but for all purposes unavoidable.
As for the State governments...I shall begin by quoting the Federalist 39 reading:
"But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers."
"In its foundation [The Constitution] is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national"
Note that Madison, in his conclusion, holds that the operation of powers is national, while the extent of powers are federal; that is, the national government is, of course, national, but the fact that its powers are limited by the states makes it federal in nature.
In a federal government, "the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere.
Based on Madison's evaluation, I think it's safe to say that the Constitution allots for a government that is more federal than national (though not purely one or the other); therefore it's clear that the state governments and officials are the ones that directly influence the federal government. Even though GWB has got abysmal approval ratings, the people themselves do not get a DIRECT say in his actions. If they did, we would have a purely national government, which is not, according to Madison, what the people at large wanted, and I don't think people want that now, either.
The State governments play a role in that they ideally represent their constituents. That is why Madison finds "the proposed constitution" worthy of "the honorable title of republic". A federal government answers to the state governments, which answer to the people of a single state. Therefore a change in the policy of the federal government coming from the people must first occur on the state level; then enough states must undergo such a change in order to affect Congress; then Congress can begin to enact the change.
Yes, much of what has happened as a result of our "war on terror" is disgusting, and I agree that no matter what the original ostensible intent of the action, it has gone on too long. But a significant reason for this? The subjectivity and vagueness of its initiation, and of the Constitution itself. There are a million reasons given for why it has all happened; but I think the main reason is that certain people involved in our government have collectively made mistakes or poor decisions. Think about it. Our basic system of government has essentially been the same for centuries; yet there have been good administrations and bad. The Constitution itself does not have to be called into question every time people misuse it, whether intentionally or not. I have a feeling that, in the same way the extent of this problem is a result of several mistakes or voluntary actions and other circumstances of the times, a solution will eventually arrive from multiple sources. This is not to say that no one should do anything; it is merely to say that no one person's action or one policy will change it. The solution will emerge as a result of many factors which will combine together into a resolution. A lot of outright political conflict comes from people expecting immediate results. And, as mentioned above, our government is not intended for immediate results.
I think that everyone thus far has made some pretty compelling arguments. Personally, I would have to agree with points made by Michael and Jarrod: the U.S. Government should do what is necessary to protect its citizens. However, I’d have to agree with some of Audrey’s statements as well. We shouldn’t disregard non-citizens completely, since the rights established in the Bill of Rights are supposedly natural human rights, not just citizen rights.
Personally I don’t have many problems with new security measures that counter potential terrorist activity, such as extended airport security or the Patriot Act. Despite it making going to the airport a bigger hassle, it has, as Jarrod pointed out, prevented any terrorist attacks over the past seven years. The fact is the United States is at war with terrorists who would do anything in order to kill people in the US, and in turn has the obligation to protect its citizens. I believe that the protection of citizens is just cause enough to implement many of these security measures and acts. Also, in my opinion, the Government so far has remained inside its limitations set out by the Constitution. Then again, the Constitution is very vague, hence the issues that arise.
The federal government essentially answers to the state governments who answer to the will of the people in those states. During a time of war, the states should support the federal government and protect its inhabitants in a domestic capacity (by providing extra security at airports and sea ports).
A state government is required to play a role in the war on terror. Although the national governmnet is charged with the operation of all the organizations run to carry out the war; the states are still required to provide the national government with help through state run organizations in assistance to larger ones.
First, its not to be said as Michael did, war is a time of uncertain politics because of the difficulty of the situation. I agree with Audrey's point that although the constitution is vague it was founded on the notion that all humans have natural inviolable rights. Beyond that we must consider that since the creation of the CIA we have been in a constant state of war until recently most of the measures taken have been hidden from the public's view; however, with the growing number of enemies and their increasing boldness it has taken more to maintain a higher ground. The problem is the extent to which the constitution allows us to go and the ones in charge of adhereing to it are willing to go. Who knows? I certainly dont, yet.
In the constitution, the national government is given the authority to defend the citizens of the United States. When terrorist attacks were carried out on September 11th, this authority was activated. I do not believe that the national government has exceeded its limits...yet. It is a fine line that the government is walking when they give themselves the power to tap our phones. Whether you want to believe it or not, this is a serious matter which gives quite a large amount of power to the government. I am not saying that I don't trust government officials to stay within the limits set by the constitution, but what I am saying is that these are people who are listening to us. Anyone with that much power will eventually use it in a way not intended. That is why I believe that people who challenge the governments authority should continue to do so to maintain the check and balance system. Jarrod, the majority of people who care do so to prevent the infringement of their rights. Guantanamo is a special place for the people the United States deems potentially to our country. I believe that everybody, innocent or guilty that is incarcerated within Guantanamo should have a trial of some sort. However, the fact that not all of the prisoners get one does not bother me one bit. If you are in Guantanamo, you did SOMETHING to get in there. I believe all methods short of torture should be used to extract information from detainees. Those people are prisoners of war and do not deserve rights.
State governments do have a domestic role as Michael says, but they are also handing over their national guardsmen to the president to be mobilized for overseas conflict. This may seem mandatory, but states can refuse to hand over their troops. It is their choice.
Personally, I beleive that there is too much gray area in terms of federal/ state powers. The very idea of a democratic republic, while appealing, is exceedingly difficult to maintain. True state powers have more or less been swalloed up by the modern national government because the politics of modern world REQUIRES a strong central government to prevent potential exploitation by another nation. Think of it this way: one whole is greater than the sum of its parts. Unification is unavoidable. While some of us may be very proud about our own states, nothing compares to the massive pride in ones nation. This isn't nessecarily a bad thing like in the war on terror. One state cannot fight it alone. Imagine leaving New York to deal with the Taliban simply because they were an unfortunate target. Long story short: states should deal with their own specific issues on a local level, and leave universal issues to the feds.
When it comes to state governments involvement in the war on terror I agree with maxwell. State governments help the national government by state run org. that assist larger, more national run org. Also, a state has to protect itself from terrorism. The measures taken by the national government are meant to help the nation as a whole. Thus, the states must make their own, more inclusive measures, to ensure their own security.
I would agree with that one administration official when he says limits on the national governemts have become a "quaint" anachronism. However, as Jarrod has stated, The Constitution clearly states that it is the legislative branch's duty to provide for a national defense. And again, like Jarrod said, no state could provide for our entire national defense. But, the national government has gone a little overboard with the tapping of overseas calls, security in airports, etc. What would happen if they didnt though? A nation requires a strong, and powerful, central government in order to provide a solid national defense. As Charlie said, it is impossible to fight the war on terror without infringing some rights. I do not feel violated by what is being done. People can deal with a little "right infringement" if it means their safety. The war on terror has exposed the true, almost limitless, power of our national government, and often times not in the best light. But, I believe that why they are doing what they are doing is for the best of our nation as a whole.
The National governement did what it had to do in a time of war. The rules change in wartime. It is the duty of our national governement to do what is best for the country, and sometimes this may mean expanding the power of the federal government. The state governemnt really does not have a role in decision making during wartime. State governments can stick to regulating the STATE, like police officers and fire fighters etc. In specific regards to the war on terror, I do not believe that George Bush or the National government as a whole did anything that was not what they believed to be nescessary. Decisions had to be made quickly and in the best interest for the safety of the country.
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asher, i said "It is possiable to fight the war on terror while protecting the rights of U.S. citizens." just fyi.
A few reactions:
1) I appreciate a good pseudonym. Who could not love "madaddy shirley money?" However, "The next gen. Adams Politician" might want to clue me in as to identity so I can give appropriate credit.
2) Are you certain people will be more loyal to their country than to their state? The framers did not think so and such is reflected in much of their discussion in the Federalist papers. Remember that the phrase "United States of America" was treated as a plural noun until after the Civil War. When asked to identify by affiliation, most people said Virginian or Ohioan rather than American. If that were not the case, the Civil War would not really have made any sense as a states' rights struggle. You might say, "yes well, that is not true today." I again ask "Are you sure?" Every four years Americans get a little revved up over the Olympics with their chants of "USA, USA, USA!" but the enthusiasm has fallen off considerably since the end of the cold war. And it still is pretty much confined to Olympic years. I have yet to see monumental displays of nationalism for any of the major world championships. Now compare that to the affiliation we have with state football and basketball teams. Think of all the people who live eat and breath Georgia football without ever having graduated from the school. Isn't the tendency establish emotional affiliation greater for that which is closer than to that which is far away?
3)A number of references have been made to the Patriot Act and to habeas corpus as it applies to the current situation. Let me suggest you also look into three other laws that have pertinence to the war on terror. The first is the oldest - Foreign Intelligence Surveillance Act (FISA), and the more recent Military Commissions Act of 2006 (MCA) and the FISA Amendments Act of 2008. Lots of complexity there but I urge you not to simply look at Wikipedia to understand them. A lot of the stuff in these documents does not apply to our discussion of federalism except for at least one provision of the FISA Amendments Act which prohibits states from investigating or punishing telecom companies who cooperate with wiretaps requested by the national government and prohibits states from punishing them for doing so. Michael who is so comforted by the protection afforded by the judicial branch might be very interested in examining the degree to which the MCA and FISA Amendments Act curtail the jurisdiction of the courts (but that is a separation of powers issue and not a federalism issue).
4) Ultimately the issue (whether your focus is one of federalism, separation of powers or protection of individual liberties) is one of the natural and long standing conflict between the goal of protecting the public from dangers without or from dangers within. Madison's words in Federalist 51 resonate: "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." The Articles were scrapped for the Constitution largely for the former, but crafted at the time and amended with the Bill of Rights with an eye on the latter. The Framers (with the exception of the Hamilton faction), did not trust government. That is why federalism, separation of powers, checks and balances, habeas corpus, and the Bill of Rights are part of the Constitution. 9-11 and the fall of the Twin Towers re-demonstrates there are bad people out there who wish us ill. However, WWII Japanese internment camps, Operation Cable Splicer, COINTELPRO, Nixon's Enemies List, and (counter to Jarrod's confidence that the government is not interested in your talking to your illicit lover) Operation Leprechaun demonstrate that government WILL abuse the power it is given all in the name of protecting us from baddies.
Honestly, I believe most of the actions taken by the U.S. government due to terrorism were neccessary. Our country was and is in danger and something had to be done. Everything done by the government has been conducted within the bounds of the constitution, thus, no wrongs have been committed. Our nation stopped believing in strict constitutionalism a long time ago. However, some of these new actions are pushing the boundaries. I personally believe this wiretapping is infringing on natural human rights- something our nation was founded upon. Im sorry Jarrod but I dont care if the government is only looking for terrorism I still dont want them listening in on my conversations no matter what they are about. And I do believe that if we give the government the power to wiretap overseas theyll eventually start doing it here. And once they start doing it here "only looking for terrorism" they will start busting people for other things. This is the start to someone having control over my life. I fight this as much as i fight propaganda, burning books, and censorship. Plus, who knows where I'll be in the future, I havnt actually decided on a career path. I could still pursue a life of crime - I might end up an international drug smuggler, or in an anarchist faction bombing people. Then, I definatly wouldnt want the government listening in on my phone calls. I agree with alot of what was said already. The national government is running the show in the fight against terror but justly so because a state government could not handle it on its own. After all, if we expect the state governments to handle these situations on their own, whats the point of the UNITED in USA. The state governments are still playing a role in the war helping out the national government and thats all that can be expected from them.
So I tried to be witty since my last name is Adams and there have been many an Adams politician but I can see my efforts were for naught oh well. It was worth a try! You still are the king mac daddy shirley money... in any case... Responging to Mr. Killian's comments I would like to disagree and agree on the whole notion of sports. While yes the Olympics unite the states once every 2 years (same stuff happens in the winter games) and beyond that there is very little national pride in sports like soccer (world cup? what is that some sort of drink?). However it is unfair to claim that it is because people are more attached to their local sports. With me personally I am not a big football fan but I enjoy going to Walker's games because it is my school: a direct relationship. I have pride of much the same level in my country when we compete on a national level. Simply put: it is a matter of frequency more than anything else. Because giant uniting national occurences are few and far between it is only natural that national pride would die off in the mean time. AND I very strongly disagree with one notion proposed by Mr. K (no offense Mr. K). The idea that when asked people afilliated themselves as members of their given state over being American. I would really like to know the context of this study because something smells fishy. I have yet to see EVER a bumper sticker saying "proud to be a georgian" or a state flag flying from someone's stoop. Im not saying Im just saying. It all depends on the context of pride when aproaching which body people genuinely feel closer to.
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