Aggressive Abroad and a Despot at Home: the Tenth Amendment

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In his correspondence with the recently defeated Robert E. Lee, Lord Acton was continuing a discussion begun by the anti-federalists and the first framers of the Constitution about one hundred years before them.  Lord Acton had written to Lee requesting the ‘other side of the story,’ because thus far, European historians had only heard from the victorious North in their task of making a historical record of that struggle.
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In his letter, Acton lamented the loss of the South to the North because he saw that “secession filled me with hope, not as the destruction but as the redemption of Democracy.” He was certain Lee understood his position, adding “I mourn for the stake which was lost at Richmond more deeply than I rejoice over that which was saved at Waterloo.” To some, this may at first appear to be a strange thing to say: that our civil war was hope for Liberty…but only if the South had won.
imageBut Lee understood the question posed by the Europeans. While delicately balancing Acton’s concerns and his own, considering his re-established loyalties to a gracious US government, Lee answers, “while I have considered the preservation of the constitutional power of the General Government to be the foundation of our peace and safety at home and abroad, I yet believe that the maintenance of the rights and authority reserved to the states and to the people not only essential to the adjustment and balance of the general system but the safeguard to the continuance of a free government.” Then Lee pulls no punches: “whereas the consolidation of the states into one vast republic, sure to be aggressive abroad and despotic at home, will be the certain precursor of that ruin which has overwhelmed all those that have preceded it.”

It would be the unbalancing concentration of centralized power that would inevitably lead to a tyrannous state, Lee was saying. It is perhaps appropriate that he was saying this to Lord Acton, who is famous for coining the phrase “power corrupts, and absolute power corrupts absolutely.” If power was not balanced with the States, then it became absolute power at the national level. 100 years previously, a prescient man anonymously identifying himself only as “A Farmer” would say in an article later tagged as Anti-Federalist paper #3, “The facility of corruption is increased in proportion as power tends by representation or delegation, to a concentration in the hands of a few. . .”

How did this discussion begin?

In the Summer of 1787, initial drafting of the Constitution was achieved. Before it could become “the supreme law of the land” the States had to sign onto it. But even earlier, so as to act in concert during the American Revolution, the thirteen colonies had chosen to create a congress to act as a mediator between them and King George III. A congress had also previously written the Declaration of Independence and the Bill of Rights. When the war was finally won, these colonies became sovereign and independent states, so much so that King George had to sign thirteen individual peace treaties–one with each of the new States.

But now, in 1787, patriots who had just tossed an oppressive tyranny off their backs were alarmed that a central government was even being proposed. At the very least, a “bill of rights,” which would explain and codify why the patriots fought, was completely missing from this proposal called the Constitution. The ideas of Thomas Paine and Thomas Jefferson, of John Locke and Voltaire–that government was a creation of the people; that power is derived from the consent of the governed; that individuals have certain natural, inalienable rights–was conspicuously absent from the document. In addition, Article 1 of the constitution seemed only to limit the States’ powers and create an unbounded federal government. These patriots, later termed “anti-federalists,” knew that a balance between State and National sovereignty was necessary for the continuation of Liberty. How else does an enlightened people govern “from the bottom up” unless power flows from the people through the States to the federal level? During the attempt to ratify this Constitution with each State, a reasonable and necessary debate began.

‘A Farmer’ argued that a decentralized government was difficult, if not impossible, to corrupt. Citing Switzerland as his example, he stated, “where the government is lodged in the body of the people… they can never be corrupted; for no prince, or people, can have resources enough to corrupt the majority of a nation.”

In anti-federalist paper #17 ‘Brutus’ warned, “the power in the federal legislature, to raise and support armies at pleasure, as well in peace as in war, and their control over the militia, tend not only to a consolidation of the government, but the destruction of liberty.” In a later publication, #25, he adds, “standing armies in time of peace are dangerous to liberty, and have often been the means of overturning the best constitutions of government,” citing Caesar’s Rome and Britain’s Cromwell as examples.

Madison countered under the pseudonym, “Plubius,” in Federalist paper 45, that a “natural attachment of the people” to their more localized State government would hinder a federal government’s growth. But, even so, if “ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. There would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole.”

Hamilton, Madison, and John Jay wrote under the pseudonym, "Plubius"

Hamilton, Madison, and John Jay wrote under the pseudonym, “Plubius”

Additionally, Madison continued, it would be a numbers game in favor of State opposition. The numbers of federal troops required to quell an intolerant State just could not be possible due to organized militias of “citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.” There was about a snowball’s chance in hell then, in Madison’s estimation, that a federal government would ever dominate a State.  It was clear that even some prominent Federalists envisioned or desired a smaller federal government or, at the very least, powerful States.

Eventually, language that clarified this discussion, found in the original Articles of Confederation, would be shortened to become the Tenth Amendment. “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled,” became, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Madison may have realized the folly of his arguments when he shifted his alliance away from fellow federalist Alexander Hamilton later in his career. In his paper entitled, “Is There a Madison Problem?” Gordon Wood explains, “If any of the Founders was a modern man, it was not Madison but Hamilton. It was Hamilton who sought to turn the United States into a powerful modern fiscal-military state like those of Great Britain and France. Madison may have wanted a strong national government to act as an umpire over contending expressions of democracy in the states, as his Virginia Plan suggests. But he had no intention of creating the kind of modern war-making state that Hamilton had in mind. Which is why he had no sense of inconsistency in turning against the state that Hamilton was building in the 1790s.”

Madison began to counter Hamilton’s vision of a strong central government. He would later emphasize his concerns that with weak States and a strong central government “the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people.” It was apparent that Madison with his farsighted concerns was an anomaly as a federalist, which as a rule did not want strong states. The founder Hamilton was a more typical federalist, who did want concentrated power at the federal level.

Even Abraham Lincoln–the President who would bring to fruition everything the Anti-federalists feared and the Federalists said was impossible–initially declared in his first inaugural speech, “that the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depend; and we denounce the lawless invasion by armed force of the soil of any State or Territory, no matter what pretext, as among the gravest of crimes.”

Lincoln, however, saw that it was more pressing to preserve the Union than to fret too much over the more esoteric issues of State sovereignty–despite the fact that several states had consolidated their position in their State Constitutions. Lee points out to Acton, “the New England states, whose citizens are the fiercest opponents of the Southern states, did not always avow the opinions they now advocate. Upon the purchase of Louisiana by Mr. Jefferson, they virtually asserted the right of secession through their prominent men; and in the convention which assembled at Hartford in 1814, they threatened the disruption of the Union unless the war should be discontinued. The assertion of this right has been repeatedly made by their politicians when their party was weak, and Massachusetts, the leading state in hostility to the South, declares in the preamble to her constitution, that the people of that commonwealth “have the sole and exclusive right of governing themselves as a free sovereign and independent state, and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right which is not, or may hereafter be by them expressly delegated to the United States of America in congress assembled.”

For the next one hundred years, the issue would lay more or less dormant as these United States healed her wounds, fought a world war, entered a depression, and fought another world war. Federal power increased in response to these crises, and now the US has participated in several conflicts in which matters her constituent states have had no official say. To many, it appears that Lee’s warning has come to pass; the US has become “aggressive abroad.” It was only very recently that a unilateral decision to bomb Syria by the US administration was narrowly avoided, and only then because of an unusually vocal popular outcry. In the last decade, the US has already dropped bombs on six separate and sovereign nations.

At home, it has become obvious that it is the federal government that wears the pants. There is a long list of Supreme Court decisions, State Sovereignty resolutions, and more recently, Nullification efforts revolving around Tenth Amendment questions and federal law. It has become clear that no matter what the issues are, the federal government decides what the States can, and cannot, do. Often, the mere theoretical probability of a product or service crossing state lines–even though it hasn’t already done so–condemns trade of that product to the threat of regulation of the federal government. The States find themselves begging forgiveness or asking permission from the federal government on many issues.

This state of affairs is not what Madison intended when he declared, “the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite,” nor when Thomas Jefferson added, “I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.’ To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.”

Was Lee also right about the “despot at home?” In what shape will the final answer come?

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The Fourth Amendment: Set Free From “Petty Tyrants”

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“I can’t in good conscience allow the U.S. government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.”
Edward Snowden

Have you ever heard someone say, “Why do I care about privacy?  I have nothing to hide.” Some even go on to add, “if it stops all of this violence, then I’m actually for a little invasion of my privacy.” Sometimes another inaccurate argument might be presented when discussing online privacy: “Free men love liberty, and criminals crave privacy.”

Perhaps Ben Franklin countered these statements best when he warned “those that would trade freedom for a little temporary security, deserve neither and will soon lose both.” Do you wonder why Ben sounded so indignant?

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He knew that if you did not aggressively protect your rights, you would be jeopardizing the rights of others, as well. He was insulted that one would be willing to weaken Liberty, for all, through their careless negligence.

We all bear the costs of increased surveillance in our country, and although it levies all taxpayers, not all costs are financial. It infringes on everyone’s private life, not just those that are willing to allow it. It compromises everyone’s officials and leaders. Their decisions affect everyone in society, not just those that yielded their Liberty. These leaders include those in the political, military and private sectors. Information used to blackmail a corporate leader might have far reaching consequences that affect many of us, not just a few. These consequences could be more serious in the event that a senator’s (or a military general’s) decision was compromised. This unreasonable intrusion into our privacy generally increases our distrust of one another.

Lack of privacy also inhibits the dissemination of sensitive information necessary for “whistle blowers” to bring tyranny into the open, affecting everyone. If a state official sees something wrong or unethical being performed by an institution in which they have insider information, they might anonymously leak this information to the press so that a public discussion can begin to change what is happening. If they know that “leaks” are not anonymous, and their careers, or even their lives, would be jeopardized with reprisals from unscrupulous individuals, these “whistleblowers” might remain silent. In this case, it is not a criminal that “craves” privacy, but someone trying to end corruption. Journalists and other members of a free press understand this concept well and defend their right to protect the privacy of their sources tenaciously. This could affect you!
Privacy has financial value. Consider Congressman Blackburn’s formal remarks: “What happens when you follow the European privacy model and take information out of the information economy? … Revenues fall, innovation stalls and you lose out to innovators who choose to work elsewhere.”  We have also seen an unwillingness of foreign corporations to purchase American- made computers and components because they are correctly suspicious that these goods will make them vulnerable to industrial espionage. This hurts our bottom line directly.

Additionally, donors might crave privacy. Often donations are made anonymously for any number of good reasons. Perhaps the person would like to avoid additional solicitations from other individuals or charities once their generosity was made public. Perhaps a donor would prefer his politics remain unknown to the public so that he may continue to do business with those that may have strong opinions opposite of his own. Perhaps the donation might reveal vulnerabilities of the donor in other ways. One example might be if a donor would like to contribute to a cause that is socially sensitive, such as ending prohibition during the twenties. Whatever the reason, donors that might be good people, championing good causes, could also “crave” privacy.

But privacy has another intrinsic value. Billy Graham put it simply when he said,“Once you’ve lost your privacy, you realize you’ve lost an extremely valuable thing.” It might be hard to imagine not having privacy. Think about how you’d feel if you found out that you forgot to zip up your fly while at a party, or as a young teenager, your parents listened in on every phone conversation you had with your friends. Privacy allows us to develop normally and psychologically as human beings. Think about what Marilyn Monroe might have meant when she said, “A career is born in public – talent in privacy.”

In a few sentences, the framers of the Constitution seemed intuitively to understand and cherish our right to avoid unreasonable intrusions into our private, and perhaps even public, lives. Let’s examine the evolution of the uniquely American concept of privacy, unreasonable searches, and the creation of the Fourth Amendment:

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James Otis

In February 1761, a lawyer named James Otis argued unsuccessfully against “Writs of Assistance” in the defense of merchants who had failed to pay duty to the English Crown on smuggled goods. Writs of Assistance were broad-based warrants that allowed for general searches for no one specific and no place in particular. They could be used by custom officials whenever they wanted to search for smuggled or stolen goods and written materials expressing political dissent.

Often, these searches were destructive to the owner’s property on which they were conducted. Often, property not related to the original infraction was seized. Otis offered a passionate plea to the courts: when no standard for issuing warrants existed, the subjects of those searches become the victims of “petty tyrants.” He explained, “[C]an a community be safe with an uncontroul’d power lodg’d in the hands of such officers, some of whom have given abundant proofs of the danger there is in trusting them with ANY? …Every one with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner also may control, imprison, or murder any one within the realm. In the next place, it is perpetual; there is no return. A man is accountable to no person for his doings. Every man may reign secure in his petty tyranny, and spread terror and desolation around him.”

Lord Camden

Lord Camden

In 1763 and 1765, two separate cases involving the ransacking of pamphleteers homes and the seizure of property related to sedition charges resulted in the British judge on both cases, Lord Camden, overturning them on the basis that the searches were illegal. (Pamphleteering was the 18th century equivalent of “blogging”!). And on June 10, 1768, John Hancock’s gaff-rigged Sloop, “Liberty,” was seized by the British after a search at sea turned up smuggled wine. John Hancock was at the time one of the wealthiest merchants in Boston and blatantly disregarded paying taxes to the Crown on imported goods. To make matters worse, the Captain and crew of the “Liberty” kidnapped the British customs official that had discovered the boot-legged wine and held him prisoner (in part, because the cheeky official wouldn’t consider taking a bribe!) until they could offload most of their cargo at dock, duty-free. A riot and some fisticuffs later, and the “Liberty” was commandeered in port by the British.

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John Adams defended Hancock in five months of legal wrangling which led suddenly and unexpectedly to dropped charges. It would later be Adams that would distill the angst of the period in legal language for the Massachusetts Constitution:

“Every subject has a right to be secure from all unreasonable searches and seizures of his person, his house, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the person or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.”

Congress would edit and narrow the language that would lead to the adoption of this language as the Fourth Amendment within the Constitution:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

It is interesting that Adams argued that even a commercial merchant vessel was immune to searches “without any probable cause” and that his language in his state Constitution was broader in scope of the protections eventually granted in the US Constitution. Though many authors contributed to the final wording (including James Madison), Adams probably had the most intimate experience with aberrant conditions prior to any law being enacted.

It is also worth noting that it was the illegal search of the homes or vessels that mandated a “not guilty” verdict, even though the defendants, in these cases, were probably guilty of some misdeed. It was clearly established that probable cause was the proper measure of a search or seizure, and any fact discovered afterwards, in the event of a improper search, was null and void.

Could it be then, that the framers saw the necessity, on occasion, for lawbreakers to be protected from unreasonable searches and seizures? Much as the right to bear arms implies that those arms might be used one day to guard against tyranny, maybe the right to be free from unprovoked, and possibly condemning searches might be necessary to protect a public accumulating contraband to resist tyranny. In both cases, an illegal act, or the threat of an illegal act, might be necessary.

Imagine a scenario where an ethical person might be compelled to act illegally in the face of a tyrannical regulation or law. History is replete with examples. Consider what it would mean to harbor an escaped slave in antebellum times; or a Jew during the Nazi occupation of Poland; or to protect a rare library of astronomy books during the Spanish Inquisition, or to sequester guns and grenades for the French Underground during the German occupation of France. These examples — and there are plenty more — were not necessary for the framers; they had had experiences of their own.

So, why do we find the Fourth Amendment applicable to today’s society even with huge technological advances the founders could not have envisioned in their time? It is because it is not a document discussing technology. It is a document discussing ethics and principles. It is discussing ideas. Ethics and principles do not change within the human species very much. What is fair today was fair 2000 years ago and will still be fair in 2000 years to come.

The Fourth Amendment applies to today’s technology because an “unreasonable search” occurs when the government violates a person’s expectation of privacy during a phone call or even an internet connection. Even though a search may be electronic, digital, or some future, yet undiscovered technology, rather than a physical one, it is still a “search” covered by the Fourth Amendment. You should be able to reasonably expect your privacy.

Having left communist Russia, Ayn Rand knew about the expectation of privacy and “petty tyrants.” She said “civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.”  So, the next time someone asks you if you are concerned about your Fourth Amendment rights, remember that those rights set you free from other men. One’s answer should be: “Very…”

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