Friday, September 17, 2010

Some thoughts on the Constitution's Language and Other Historical Subjects

Some day I'm going to write about the confusion created by the difference in the meaning of words that are used in the United States Constitution when it was written versus their common usage today. For example, "regulate" and "regulation." When the Constitution's Article 1, Section 8 speaks of Congress's power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" the word regulate meant something more akin to "promote" to the Framers, rather than the meaning of the word in government usage today which is more akin to "limit" or "control." Similarly, the expression "A well regulated Militia" in the Second Amendment has today been used to suggest that the government has a right to regulate (limit or control) gun possession, but in the eighteenth century, the use of "regulated" in conection with the military or a militia meant "discipline" or, more specifically, parade ground drilling. This preamble to the point of the amendment--which is that "the right of the people to keep and bear Arms, shall not be infringed"--refers to the need for practice of an armed militia unit together and with their weapons.

As a side note, the context of the Second Amendment is clearly (from the phrase "being necessary to the security of a free State"--there: I have quoted every word in the entire amendment though not in order) is a state militia as a creature of each state and not as an adjunct to the national military. In the Federalist Papers the assumption is clear that the militia is not like the modern National Guard in that the state militia might be expect to fight against the national army if it acted militarily against a state's interests. This leads me to another point and what I believe is the greatest flaw in the Constitution: James Mdison only focused, in his creation of the Constitution, on making a novel division of powers between the executive, legislative, and judicial branches of the national government; he took for granted and therefore paid no legal attention to the balance of power between the national and state governments. Over time, and in various ways, the balance has shifted away from the states and toward the national government. The de facto abolition of independent state militias is only one of the ways in which this balance has shifted. In the time of the Founders, the power of the states, much greater than it later would be, was taken for granted by Madison. (Historically, we might debate whether Madison and Hamilton understood this would happen. Some think that Madison was naive on this point while Hamilton knew that the Constitution might promote the diminution of state power.)

Occassionally separate lines of research come together to illuminate each other. Recently this happened. Last year or the year before I was reading about President Millard Fillmore, my favorite under-rated president. One of the tibbits I learned was that during his administration, someone tried to get the United States government to support a plot to overthrow the emperor of Austria. On the face of it, of course, the Fillmore administration's rejection of this proposal seems justifiable. Why should the United States have involved itself in such a scheme? What possible benefit could it have had for our country? Would any American president of that era taken up the offer to get in on this scheme?

Well, my current reading of a biography of the nineteenth century German politician Otto von Bismarck proves that the Fillmore administration's caution was more than justified. In 1848, there were several attempted revolutions in Europe, almost none of which led to any permanent change. By 1850, the Austria government had removed one emperor and his chief minister and replaced the emperor according to the laws ofd succession and put in a new chief minister. In other words, the more things changed, the more they stayed the same. During this transition, many people in Europe thought that the untested new government in Austria might be ripe for overthrow or vulnerable to attack. It must have been based on this that the United States was approached after 1850 with a scheme to help tople the Austrian monarchy. It turned out, however, that the new government was being managed by very able political and military leaders who secured Austria through several political maneuvers including winning the support from the Czar of Russia. Austria was not as vulnerable as many assumed. And although Bismarck and others later rested some power away from Austria, at the time the Fillmore administration was being offered the opportunity to get in on the ground floor of an anti-Austrian coup, the Austrian government was actually too strong for the schemee to succeed; so the United States would have caused itself needless grief if it had involved itself in such a project.

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