For the Security of the State: Part II
By Scott Lipkowitz
At the end of the the first part of this post I made the argument that rather than guaranteeing the individual’s right to fight a tyrannical government, the Constitution and the 2nd Amendment provide the means by which the government could ensure that the Revolution of 1776 could not be repeated. This seems very much at odds with the views of those who seized control of the Mahleur National Wildlife Refuge, and who resisted federal officials on the Bundy Ranch. To them, the Constitution guarantees their “right” to rebel against tyranny and oppression. Yet, as we saw in Shays’ rebellion, the nature of tyranny and oppression is often in the eye of the beholder. Shays’ Rebellion is often called the American Revolution’s final battle - indeed it is the subtitle of historian Leonard L. Richards’ fantastic book on the subject - but it was not solely a battle in the traditional sense. Beyond the armed skirmishes at Springfield and Petersham, the insurrection brought a larger, more ominous conflict to the fore: the conflict between the ideals set forth in the Declaration of Independence and the stark realities of power and authority in the post- Revolutionary United States. This stark reality would eventually manifest itself in the adoption of the U.S. Constitution; which in many ways is the antithesis of the Declaration’s lofty principles. It provided for a strong central authority; a distant ruling power very much like that which Shays’ rebels fought to overthrow not only in the Revolution, but in Massachusetts as well. How then, some 229 years after the Constitution’s drafting, did those at Mahleur and the Bundy Ranch come to view it as the guarantor of their “right” to rebel against the government it created? Did the authors and proponents of the Constitution truly intend to codify a right to rebel against them?
In order to address these questions we have to first look at what drove the push for a stronger central government and for the adoption of the Constitution. Shortly after the outbreak of hostilities in the Revolution, the Continental Congress convened a committee to draw up a proposal for how the various states would interact. Would they be tightly knit or loosely associated? Ultimately, in 1777, they chose the latter; opting to create a “firm league of friendship” rather than a unified national government. The various states retained a substantial level of autonomy. While there was cooperation between them, especially during the war, they were the United States in name only. What little federal authority that did exist was all but powerless to deal with the many social and economic problems which faced the new nation. Congress had no power to levy taxes for the repayment of war debt or to raise funds to deal with issues of internal security; hence the ultimate need of the Boston elite to raise their own private army to deal with Shays and his men. Shays’ Rebellion was simply the last of many problems created by the ineffectual Articles; but a problem which struck a nerve with the newly seated rulers of the United States. The Rebellion inspired such vitriol in many of the founders that it moved Sam Adams, an outspoken advocate for the Revolution in the 1770’s, to state that a “rebellion against a king may be pardoned, or lightly punished, but the man who dares to rebel against the laws of a republic ought to suffer death.” These are surprising words from one who decried the arbitrary rule of kings; nor do they sound like the words of one who would seek to codify the insurrectionists right to overthrow the government. What was it about Shays’ Rebellion that engendered such animosity?
Central to this question is the notion of factions - groupings of like-minded individuals set in opposition to one another - often with deadly consequences. Factions seem to be an inevitable consequence of our humanity; an outgrowth of our shared tribal past. We all have different backgrounds, different needs, different experiences, different ideas and ideologies. All of these are potential fault lines along which factions, in any group, may develop. The larger the group, it seems, the larger the potential. Even within tribal societies individuals also have their own sets of unique wants, desires, etc, but conflict here is mitigated to a degree by the overarching common necessities of tribal life. This is not to say, however, that conflict does not occur or that violent factions can not take hold in a tribal society -indeed they have sometimes been their undoing- but rather that as a society grows in scale and complexity, the probability of the formation of a diversity of opposing factions increases. In the modern United States one only has to look at all the various groups; be they farmers, teachers, coal miners, or defense contractors who lobby the government for favor to see the effect of factions in action. Although there are many ways in which factions may form, to the founders, Shays and his insurrectionists were of the most dangerous kind: a faction motivated by perceived economic injustice.
In the Federalist 10, published in November 1787, James Madison -Virginia statesman and chief architect of the newly drafted Constitution - cited human society’s propensity to create a “various and unequal distribution of property” as the single most important cause of factions. Madison was also a firm believer that factions were inevitable; factions based along economic lines even more so, due to the differing faculty with which individuals secured property and wealth. One could certainly argue that the leaders of the Revolution formed an economic faction for exactly these reasons, with the violent overthrow of their British rulers as the direct result. In any case, it seems certain that the rebellion of Shays and other Massachusetts farmers was on Madison’s mind when he wrote his federalist argument. If such factions were allowed to go unchecked, and to impose their will through force each time a decision was made that they did not like, there would be a complete breakdown of state authority- as indeed there was in Massachusetts. To Madison, no one could live under such conditions; anarchy would prevail. Controlling the effects and power of these inevitable factions was therefore essential. Madison felt he had the answer: the creation of a strong central government which would ensure that one group could not impose it’s will on another; especially where the interests of property were concerned. Writing in the Federalist 10 he stated: “Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than it’s tendency to break and control the violence of faction.”
Now it may have struck you that such an argument does not make much sense. After all, the elites of Boston and the state government were an economic faction, imposing their will on others, and creating the very source of tension which provoked armed opposition in the first place. In that light, a call for a stronger central government appears very much like the interests of one faction achieving a primacy above all others. While Madison seemed to view the strife caused by economic differences with disdain, he never-the-less saw the prime duty of government to be the “protection of [the] faculties” from which “the rights of property originate.” It is the prime purpose, in Madison’s mind, of a strong central federal government to protect the interests of the propertied class from those factions who would seek to hinder or hurt them. Madison, being of the propertied class himself, sought to control the violence of factions, by ensuring that his faction would come out on top. Statements such as these belie the notion that the Constitution was written as a libertarian document, much less that it intended to uphold the ideals of the Declaration which Shays and his men believed were on their side. The Constitution, and the government it instituted, aimed to control the harmful effects of factions by ensuring that the right faction held power.
Viewing the Constitution in this way was a central characteristic of the ensuing debate over its adoption. While Madison and Alexander Hamilton argued its benefit, George Clinton and others, writing in the Anti-Federalist Papers, called the Constitution and its proposed federal system “A dangerous plan of benefit only to the ‘aristocratik combination’.” Similar to the grievances of Shays and his men, the Anti-Federalist’s introduction sees the true motive for the adoption of a strong national government to be in line with the desires of those who sought to “erect an aristocracy” within the United States. What’s more, ‘their cry is for a RIGID government, it matters little to them of what kind, provided it answers THAT description.“ Any government instituted by the Constitution would be for the benefit of the wealthier classes - those whose fortunes (both literal and figurative) were tied to the success of the state’s authority. It is not hard then to conclude that such a government would indeed try to suppress factions which opposed it; and one historical way of doing so - familiar to any former British subject - would be to disarm them. The Anti-Federalists dealt with these anxieties in multiple Papers; citing the potential for despotism, the potential for the President to become a “military king”, and an overall fear of a standing army which could be used to support the rulers of the United States in any “usurpations of power, which they may seem proper to exercise.” (In making this argument, the Anti-Federalists embraced this blog’s impetus to learn from history, drawing examples from the death throes of the Roman Republic.) All of these fears may be scoffed at today; but they none-the-less are still a concern. To the founders these arguments presented still more fault lines along which new factions might grow and eventually oppose them.
Thus the problem that presented itself to those who supported the adoption of the Constitution like Madison and Hamilton was not simply the control of factions. They needed to exert that control in such a way that the fears of those who felt as George Clinton did would not lead to further strife and potentially the overthrow of their leadership- as was the case in England in 1688. The Constitution and the 2nd Amendment set out to do just that. The 2nd Amendment states:
“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
If a fear of disarmament was a concern, the 2nd Amendment would ensure the new federal government could not prohibit the individual use of weapons- a liberty long enjoyed even under English rule. If a fear of a standing army created anxiety, the Constitution in Article I Section 8 would ensure that no army could be raised for a period longer than two years, and would, in the same section, make militias the main source of internal security. This would seem to confirm what the militias of Mahleur and Bundy assert- that the guarantees of the 2nd Amendment, combined with the limitations of the Constitution, uphold the rights of the citizenry to rebel against the government if it becomes 'tyrannical’. Yet, was it not the guarantee of a right to bear arms, and a militia based security apparatus, that enabled Shays’ Rebellion in the first place? Why would the founders have built into the new system the same structural flaws which lead to the kind of factional violence they now sought to prevent?
The answer is that they didn’t. We often refer to the Amendments as if they were singular entities. In reality they are part of the larger Constitution; the rights they guarantee often referencing it’s sections. The 2nd Amendment, while guaranteeing an individual right to bear arms, also provides for their use in a militia- a militia provisioned, organized, and disciplined by the authority of Congress as set forth in Article 1 Section 8. What’s more, the 2nd amendment gives the government the ability to call forth this militia “for the security of the state.” The Constitution grants you the ability to arm yourself; but with the caveat that every so often the government will call upon you and your weapons to fight on its behalf. This was borne out in Pennsylvania in 1794 - a mere 5 years after the Constitution’s adoption, and 3 years after the enactment of the 2nd Amendment - when under the command of President Washington the militia was called out by the federal government to put down rebelling whiskey distillers in western Pennsylvania who were getting uppity about their taxes. It is the only instance in United States history in which a sitting President lead the armed forces in actual combat; and it was not against some invading foreign power, but against the government's own citizens. Instead of guaranteeing an individual or group of citizens’ right to fight government tyranny, the phrase “for the security of the state” provides the government with the means to fight the tyranny of insurrection.
It was in this way that Madison, Hamilton and the other founding fathers were able to channel and control, to a degree, the factions which opposed them: by assuaging their fears and giving the superficial appearance that the Constitution upholds the Declaration’s support of rebellion against tyranny. While the Declaration and its ideals aided the founders during the Revolution, in its aftermath they became a kind of Pandora’s Box. Once the notions of equality, liberty, and a right to rebel against perceived unjust authority are let loose, they are hard to get back into the box. That the Founding Fathers attempted to do so merely sheds light on their humanity. Far from the mythic creators of a shinning city on a hill, the one time revolutionaries found themselves, at the war’s conclusion in 1783, to be the new rulers of a nascent state. Having just freed themselves from British rule, it is not hard to understand their desire to solidify their hold on power, and to keep in check those forces and factions which sought to undermine or challenge it - such as Shays and those who rebelled alongside him. Similar actions are taken by all groups of humans when trying to protect their interests. That the Constitution and the 2nd Amendment are a product of such human endeavor does not diminish their importance, but rather enables us to see them for the flawed constructs of human nature that they are.
Ultimately, the Constitution and the 2nd Amendment do not guarantee the right to rebel against the very government which they instituted- no matter what those at Mahleur, the Bundy Ranch, or those of a similar mind might argue. Would we truly expect it to do so? Does such a right even need to be codified? After all, what right did the founders have to rebel against Britain? Though the founders cloaked their Revolution in ideology, at its heart was a common human desire for power and autonomy. The militias of Mahleur and the Bundy Ranch had a similar underlying motive, one that has motivated armed rebellion against perceived tyranny and oppression throughout human history. Yet we view these modern militias in a negative light. Why? Perhaps, like Madison, we do not want there to be a 'right’ to rebel against authority. Perhaps after more than 200 years of living under a relatively stable system, despite its many flaws, we recognize the transient nature of tyranny. If every Mahleur or Bundy militia were allowed to impose its will at the end of the barrel of a gun, the law and order we come to expect within our complex society could not exist. Perhaps we too see the befits of controlling the negative effects of factions, and have come to expect instances of oppression and tyranny to be overcome by non-violent means. One thing, however, is certain - the conflict between the Constitution and the ideals of the Declaration continue to be a defining characteristic of American public life. It is a conflict between how we wish to perceive ourselves and the realities of what we actually are; and it may never cease until we abandon the former in favor of dealing with the latter.
Articles of Confederation. 1777. http://www.ourdocuments.gov/doc.php?flash=false&doc=3
Hamilton, Alexander; Madison, James. The Federalist Papers. 1787
Clinton, George. The Anti-Federalist Papers. 1787
Constitution of the United States of America. 1787. https://www.billofrightsinstitute.org/founding-documents/constitution/
Richards, Leonard L. Shays’s Rebellion: The American Revolution’s Final Battle. University of Pennsylvania Press. 2003.
District of Columbia v Heller. 554 U.S. 570. (2008) Supreme Court of the United States. pgs 22-30.
English Bill of Rights. 1689. http://avalon.law.yale.edu/17th_century/england.asp
Declaration of Independence. 1776. http://www.billofrightsinstitute.org/founding-documents/declaration-of-independence/
Stack, Liam. (January 2, 2016). “Wildlife Refuge Occupied in Protest of Oregon Ranchers’ Prison Terms”. The New York Times. p A13. http://www.nytimes.com/2016/01/03/us/oregon-ranchers-will-return-to-prison-angering-far-right-activists.html?_r=0