We Are Publius

Today in Federalism

2008-04-02T12:53:00.004-04:00

April 2, 1788:

Federalist Paper No. 77, the last Paper to appear as a newspaper article, is published. The remaining Papers (78-85) were released in a bound volume containing Papers 37-85, on May 28.

Mark your calendars!

Birthday Festivities Cont'd

2008-03-25T13:21:00.007-04:00

The New Federalist asks: '50 Years: The Age of Maturity for the European Parliament?' in a must read article.

Meanwhile, E! Sharp Magazine has a slightly more pessimistic view.

The EU Turns 51

2008-03-25T10:51:00.007-04:00

This article from the Independent was actually passed on to me last year, on the 50th anniversary of the Treaty of Rome, but I wasn't able to post it then. But I would argue that most of the points are still valid (especially no. 50), so Happy Birthday Europe!

50 reasons to love the European Union
As the EU celebrates its anniversary, The Independent looks at 50 benefits it has brought, and asks: "What has Europe done for us?"
Published: 21 March 2007

1 The end of war between European nations
2 Democracy is now flourishing in 27 countries
3 Once-poor countries, such as Ireland, Greece and Portugal, are prospering
4 The creation of the world's largest internal trading market
5 Unparalleled rights for European consumers
6 Co-operation on continent-wide immigration policy
7 Co-operation on crime, through Europol
8 Laws that make it easier for British people to buy property in Europe
9 Cleaner beaches and rivers throughout Europe
10 Four weeks statutory paid holiday a year for workers in Europe
11 No death penalty (it is incompatible with EU membership)
12 Competition from privatised companies means cheaper phone calls
13 Small EU bureaucracy (24,000 employees, fewer than the BBC)
14 Making the French eat British beef again
15 Minority languages, such as Irish, Welsh and Catalan recognised and protected
16 Europe is helping to save the planet with regulatory cuts in CO2
17 One currency from Bantry to Berlin (but not Britain)
18 Europe-wide travel bans on tyrants such as Zimbabwe's Robert Mugabe
19 The EU gives twice as much aid to developing countries as the United States
20 Strict safety standards for cars, buses and aircraft
21 Free medical help for tourists
22 EU peacekeepers operate in trouble spots throughout the world
23 Europe's single market has brought cheap flights to the masses, and new prosperity for forgotten cities
24 Introduction of pet passports
25 It now takes only 2 hrs 35 mins from London to Paris by Eurostar
26 Prospect of EU membership has forced modernisation on Turkey
27 Shopping without frontiers gives consumers more power to shape markets
28 Cheap travel and study programmes means greater mobility for Europe's youth
29 Food labelling is much clearer
30 No tiresome border checks (apart from in the UK)
31 Compensation for passengers suffering air delays
32 Strict ban on animal testing for the cosmetic industry
33 Greater protection for Europe's wildlife
34 Regional development fund has aided the deprived parts of Britain
35 European driving licences recognised across the EU
36 Britons now feel a lot less insular
37 Europe's bananas remain bent, despite sceptics' fears
38 Strong economic growth - greater than the United States last year
39 Single market has brought the best continental footballers to Britain
40 Human rights legislation has protected the rights of the individual
41 European Parliament provides democratic checks on all EU laws
42 EU gives more, not less, sovereignty to nation states
43 Maturing EU is a proper counterweight to the power of US and China
44 European immigration has boosted the British economy
45 Europeans are increasingly multilingual - except Britons, who are less so
46 Europe has set Britain an example how properly to fund a national health service
47 British restaurants now much more cosmopolitan
48 Total mobility for career professionals in Europe
49 Europe has revolutionised British attitudes to food and cooking
50 Lists like this drive the Eurosceptics mad

Faith of Our Fathers

2008-03-18T10:00:00.005-04:00

The Founding Fathers are getting a lot of love so far this year. First, HBO makes a miniseries about John Adams, now a new book, entitled Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America by Steven Waldman has just been published by Random House.

Sadly, I don't get HBO, and don't feel like changing my cable options (not sure why HBO isn't included, but oh well), so I'll just have to wait for John Adams to come out on dvd. But Nick Gillespie, the editor of reason.tv, has a good review of Founding Faith in the New York Post (founded by Alexander Hamilton!), and I've already added Founding Faith to my want-to-read pile.

Minerva Deadline EXTENDED!

2008-03-14T17:47:00.004-04:00

Breaking news:

Thesil has extended the deadline for Minerva entries to April 15th, which means that I might actually be able to finish my piece in time. We'll see.

And MANY THANKS! to Val Schrock for making the button for us! (visible on all of the WFI's pages)

TJ and Soft Power

2008-03-14T09:36:00.006-04:00

In Harper's this week, Jefferson anticipates the doctrine of soft power:

I wish that all nations may recover and retain their independence; that those which are overgrown may not advance beyond safe measures of power, that a salutary balance may be ever maintained among nations, and that our peace, commerce, and friendship, may be sought and cultivated by all. It is our business to manufacture for ourselves whatever we can, to keep our markets open for what we can spare or want; and the less we have to do with the amities or enmities of Europe, the better. Not in our day, but at no distant one, we may shake a rod over the heads of all, which may make the stoutest of them tremble. But I hope our wisdom will grow with our power, and teach us, that the less we use our power, the greater it will be.

–Thomas Jefferson, letter to Thomas Leiper, June 12, 1815, in: The Writings of Thomas Jefferson (Memorial ed.), vol. 14, p. 308

Federalist Paper No. 7

2008-03-08T21:07:00.002-05:00

Poor Hamilton. He wishes he could just leave the question of what could make the states fight each other, at just: the same reasons every other group of states has ever fought against one another. But he needs to address the particulars of the American situation, so his ink can’t be spared.

The reasons he addresses are:

Territorial disputes (par. 2-4)
Competitions of commerce (par. 5-6)
Public debt of the Union (par. 7-8)
Laws in violation of private contracts (par. 9)

As he states, reasons 1 and 2 aren’t unique to America, but he does have reason to argue that 3 and 4 are.

By ‘public debt of the Union’, Hamilton refers primarily to the accumulated war debt. There are two problems he sees with leaving this debt to be dealt with by the single states:

The apportionment of debt: The different states accumulated different losses and costs based on their role in the Revolutionary war (heavier losses of human life, destruction of property, interruption of trade), in the pursuit of the common good – independence. How, then should the costs be apportioned – by the ability of each state to pay, by costs that were not paid out at the time, etc? Each state will obviously want to minimize its debt.
How to discharge the debt: Apparently, members of some of the states ‘either less impressed with the importance of national credit, or because their citizens have little, if any, immediate interest in the question’ to paying ANY of the debt. On the other side, there are citizens who are creditors to the Revolutionary army and young nation, and really want to be paid back. Not to mention, some countries (France) lent the Americans money, and not paying back allies is a sure-fire way to make any support disappear.

The final point Hamilton raises is ‘laws in violation of private contracts’. I don’t follow this quite as easily, but my understanding is that a citizen of one state enters into a contract with a citizen of another state, after which the legislature of the first state passes some law that violates the contract between the two citizens, and injures the citizen of the second state. And since the citizen of the second state’ rights are violated, then his state will have to act to protect him, and now suddenly two states are having a go over this contract and the interfering law. In his example of Connecticut and Rhode Island, it almost seems as if Rhode Island’s legislature passed laws that would harm citizens of Connecticut on purpose, which doesn’t seem like a very neighborly thing to do. Or as Hamilton puts it, a ‘[breach] of moral obligation and social justice.’ (On a side note, no wonder he got into a duel with Aaron Burr)

As always, Hamilton says it better than I. From his conclusion:

The probability of incompatible alliances between the different States or confederacies and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers…[T]his conclusion is to be drawn, that America, if not connected at all, or only by…feeble tie… [would] be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions… would be likely to become a prey to the artifices and machinations of powers… Divide et impera must be the motto of every nation that either hates or fears us.

.... And We're Back!

2008-03-08T10:07:00.004-05:00

Ok, so that was a nice vacation (I wish). We Are Publius has been on hiatus these past 2 months because I've been busy setting up some other blogging projects (the Everyday Idealist, Blogworthy, and The List), and I've been up to my eyeballs in WFI work. I've also been doing some spring cleaning (mental and blog) because I felt I was getting off-topic with WAP (less confusing than calling it Publius, since there was that other guy...), but had nowhere else to go.

My hope is that the EI will solve that problem, and allow WAP to focus better on federalism (US and otherwise) and other issues of international and global law and governance, and therefore less on the US, except as it pertains to the global picture.

I'm also floating the idea of possibly getting some of my friends in the movement (World Federalist Movement, that is) to contribute. We shall see.

In the meantime, Federalist Paper No. 7 (remember those?) will be posted shortly (end of day), and I've got some topics I've been saving to write about.

I'm still growing into both blogging and We Are Publius - both what my intentions are and what it means to have set this responsibility for myself. Expect that I'll continue to make changes to both the format and content. I'd like to bring in more outside links and make a wider range of resources available. And as I develop the WFI's webpages, the resources I find most useful will be linked here.

I'm a little ambivalent about short posts with just links, but I don't see them disappearing. I read somewhere that a really good article is one about which you have nothing further to say. As part of Publius, I want to share those articles, even if I have nothing to add to the debate. But it is easy to substitute them for originial content, and I don't want to do that either. Either way (with or without short entries), I think I'd like my posting to be a tad more judicious.

Final housekeeping details: all old WAP posts are still available and I'm testing a calendar feature to manage Today in Federalism announcements.

We now return you to your regularly scheduled programming.

Today in Federalism, Belated Edition

2008-03-07T16:59:00.001-05:00

While I was gone:

March 2, 1788: New York publishing firm J. & A. McLean published the first thirty-six [Federalist Papers] as a bound volume, titled The Federalist.

For upcoming Today in Federalism events, check out the cool new widget by Beautiful Beta.

Federalism 101

2008-03-07T16:36:00.005-05:00

Cool video intro from the Forum of Federations.

Hat tip: World Federalist Movement- Institute for Global Policy Facebook group

Minerva Deadline

2008-03-07T15:42:00.004-05:00

As a heads-up for aspiring authors of global governance policy, the deadline for Minerva vol. 32 is March 15.

To submit, please contact the editor:

thesil [at] midcoast.com
or

Minerva
PO Box 397
Waldoboro, ME 04572

Thesil is a fantastic person and she puts out a really top quality publication. If you can't submit, but still want to read the journal, either contact Thesil at the above address or read it online in PDF form.

Coming Soon...

2008-01-24T10:07:00.003-05:00

... to a tv set near you!

This miniseries looks interesting enough that I might have to make sure I actually get HBO.

Ron Paul, Libertarians, and the Rest of America, Reprise

2008-01-09T13:05:00.001-05:00

A much better articulation of my hopes, fears, and misgivings about Ron Paul's candidacy on reason's Hit & Run today.

Pop Culture Is Good for Democracy?

2008-01-07T11:32:00.000-05:00

This would make a great thesis project.

It's Friday, I'm in Love

2008-01-04T13:02:00.000-05:00

I always love my country, but recently, I haven't exactly been moved to tears by the relationship - or if I have, they've been for the wrong reasons.

Today, however, with 'Obama Wins!' emblazoned across every newspaper, I am beyond moved.

Even Republicans are proud of Obama's victory, and the world rejoices.

American Christmases

2007-12-25T10:04:00.000-05:00

The WSJ's Opinion Journal features two good Christmas articles.

First, Washington's Christmas gift to the young America [nitpick - Fleming calls the country the United States of America, although at that time it was still governed by the Articles of Confederation, not the Constitution]

Second, the history of December celebrations, from Saturnalia to the Nativity to Virginia's Santa Claus.

Happy Holidays!

Ron Paul, Libertarians, and the Rest of America

2007-12-24T09:08:00.001-05:00

Right now, Ron Paul is the face for libertarianism in this country (which is ironic if you think about the nature of libertarianism). But nevertheless, when Americans think about libertarianism and libertarians, Ron Paul is who they picture. So I'll admit I'm conflicted over his candidacy.

One the one hand, I think he's weak/naive on foreign policy, a little laissez-faire even for me, and more than a little crazy. And his followers definitely worry me.

One the other hand, there's just something about him. I think I have to agree with Eric N., commenting on Matthew Yglesias' recent Ron Paul posting.

A More Perfect Union

2007-12-24T08:26:00.002-05:00

While searching my papers for an essay I wrote about Alexis deTocqueville's Democracy in America and Fight Club, I found this article published in the Atlantic Monthly in April 2004. Since the Atlantic requires a subscription to read the article, I've posted it in its entirety here.

A More Perfect Union

How the Founding Fathers would have handled gay marriage
by Jonathan Rauch
.....

Last November the Supreme Judicial Court of Massachusetts ruled that excluding gay couples from civil marriage violated the state constitution. The court gave the legislature six months—until May—to do something about it. Some legislators mounted efforts to amend the state constitution to ban same-sex marriage, but as of this writing they have failed (and even if passed, a ban would not take effect until at least 2006). With unexpected urgency the country faces the possibility that marriage licenses might soon be issued to homosexual couples. To hear the opposing sides talk, a national culture war is unavoidable.

But same-sex marriage neither must nor should be treated as an all-or-nothing national decision. Instead individual states should be left to try gay marriage if and when they choose—no national ban, no national mandate. Not only would a decentralized approach be in keeping with the country's most venerable legal traditions; it would also improve, in three ways, the odds of making same-sex marriage work for gay and straight Americans alike.

First, it would give the whole country a chance to learn. Nothing terrible—in fact, nothing even noticeable—seems to have happened to marriage since Vermont began allowing gay civil unions, in 2000. But civil unions are not marriages. The only way to find out what would happen if same-sex couples got marriage certificates is to let some of us do it. Turning marriage into a nationwide experiment might be rash, but trying it in a few states would provide test cases on a smaller scale. Would the divorce rate rise? Would the marriage rate fall? We should get some
indications before long. Moreover, states are, as the saying goes, the laboratories of democracy. One state might opt for straightforward legalization. Another might add some special provisions (for instance, regarding child custody or adoption). A third might combine same-sex marriage with counseling or other assistance (not out of line with a growing movement to offer social-service support to so-called fragile families). Variety would help answer some important questions: Where would gay marriage work best? What kind of community support would it need? What would be the avoidable pitfalls? Either to forbid same-sex marriage nationwide or to legalize it nationwide would be to throw away a wealth of potential information.

Just as important is the social benefit of letting the states find their own way. Law is only part of what gives marriage its binding power; community support and social expectations are just as important. In a community that looked on same-sex marriage with bafflement or hostility, a gay couple's marriage certificate, while providing legal benefits, would confer no social support from the heterosexual majority. Both the couple and the community would be shortchanged. Letting states choose gay marriage wouldn't guarantee that everyone in the state recognized such marriages as legitimate, but it would pretty well ensure that gay married couples could find some communities in their state that did.

Finally, the political benefit of a state-by-state approach is not to be underestimated. This is the benefit of avoiding a national culture war.

The United States is not (thank goodness) a culturally homogeneous country. It consists of many distinct moral communities. On certain social issues, such as abortion and homosexuality, people don't agree and probably never will—and the signal political advantage of the federalist system is that they don't have to. Individuals and groups who find the values or laws of one state obnoxious have the right to live somewhere else.

The nationalization of abortion policy in the Supreme Court's 1973 Roe v. Wade decision created a textbook example of what can happen when this federalist principle is ignored. If the Supreme Court had not stepped in, abortion would today be legal in most states but not all; pro-lifers would have the comfort of knowing they could live in a state whose law was compatible with their views. Instead of endlessly confronting a cultural schism that affects every Supreme Court nomination, we would see occasional local flare-ups in state legislatures or courtrooms.

America is a stronger country for the moral diversity that federalism uniquely allows. Moral law and family law govern the most intimate and, often, the most controversial spheres of life. For the sake of domestic tranquillity, domestic law is best left to a level of government that is close to home.

So well suited is the federalist system to the gay-marriage issue that it might almost have been set up to handle it. In a new land whose citizens followed different religious traditions, it would have made no sense to centralize marriage or family law. And so marriage has been the domain of local law not just since the days of the Founders but since Colonial times, before the states were states. To my knowledge, the federal government has overruled the states on marriage only twice. The first time was when it required Utah to ban polygamy as a condition for joining the Union—and note that this ruling was issued before Utah became a state. The second time was in 1967, when the Supreme Court, in Loving v. Virginia, struck down sixteen states' bans on interracial marriage. Here the Court said not that marriage should be defined by the federal government but only that states could not define marriage in ways that violated core constitutional rights. On the one occasion when Congress directly addressed same-sex marriage, in the 1996 Defense of Marriage Act, it decreed that the federal government would not recognize same-sex marriages but took care not to impose that rule on the states.

Marriage laws (and, of course, divorce laws) continue to be established by the states. They differ on many points, from age of consent to who may marry whom. In Arizona, for example, first cousins are allowed to marry only if both are sixty-five or older or the couple can prove to a judge "that one of the cousins is unable to reproduce." (So much for the idea that marriage is about procreation.) Conventional wisdom notwithstanding, the Constitution does not require states to recognize one another's marriages. The Full Faith and Credit clause (Article IV, Section 1) does require states to honor one another's public acts and judgments. But in 1939 and again in 1988 the Supreme Court ruled that the clause does not compel a state "to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate." Dale Carpenter, a law professor at the University of Minnesota, notes that the Full Faith and Credit clause "has never been interpreted to mean that every state must recognize every marriage performed in every other state." He writes, "Each state may refuse to recognize a marriage performed in another state if that marriage would violate the state's public policy." If Delaware, for example, decided to lower its age of consent to ten, no other state would be required to regard a ten-year-old as legally married. The public-policy exception, as it is called, is only common sense. If each state could legislate for all the rest, American-style federalism would be at an end.

Why, then, do the states all recognize one another's marriages? Because they choose to. Before the gay-marriage controversy arose, the country enjoyed a general consensus on the terms of marriage. Interstate differences were so small that states saw no need to split hairs, and mutual recognition was a big convenience. The issue of gay marriage, of course, changes the picture, by asking states to reconsider an accepted boundary of marriage. This is just the sort of controversy in which the Founders imagined that individual states could and often should go their separate ways.

Paradoxically, the gay left and the antigay right have found themselves working together against the center. They agree on little else, but where marriage is concerned, they both want the federal government to take over.

To many gay people, anything less than nationwide recognition of same-sex marriage seems both unjust and impractical. "Wait a minute," a gay person might protest. "How is this supposed to work? I get married in Maryland (say), but every time I cross the border into Virginia during my morning commute, I'm single? Am I married or not? Portability is one of the things that make marriage different from civil union. If it isn't portable, it isn't really marriage; it's second-class citizenship. Obviously, as soon as same-sex marriage is approved in any one state, we're going to sue in federal court to have it recognized in all the others."

"Exactly!" a conservative might reply. "Gay activists have no intention of settling for marriage in just one or two states. They will keep suing until they find some activist federal judge—and there are plenty—who agrees with them. Public-policy exception and Defense of Marriage Act notwithstanding, the courts, not least the Supreme Court, do as they please, and lately they have signed on to the gay cultural agenda. Besides, deciding on a state-by-state basis is impractical; the gay activists are right about that. The sheer inconvenience of dealing with couples who went in and out of matrimony every time they crossed state lines would drive states to the lowest common denominator, and gay marriages would wind up being recognized everywhere."

Neither of the arguments I have just sketched is without merit. But both sides are asking the country to presume that the Founders were wrong and to foreclose the possibility that seems the most likely to succeed. Both sides want something life doesn't usually offer—a guarantee. Gay-marriage supporters want a guarantee of full legal equality, and gay-marriage opponents want a guarantee that same-sex marriage will never happen at all. I can't offer any guarantees. But I can offer some reassurance.

Is a state-by-state approach impractical and unsustainable? Possibly, but the time to deal with any problems is if and when they arise. Going in, there is no reason to expect any great difficulty. There are many precedents for state-by-state action. The country currently operates under a tangle of different state banking laws. As any banker will tell you, the lack of uniformity has made interstate banking more difficult. But we do have interstate banks. Bankers long ago got used to meeting different requirements in different states. Similarly, car manufacturers have had to deal with zero-emission rules in California and a few other states. Contract law, property law, and criminal law all vary significantly from state to state. Variety is the point of federalism. Uniform national policies may be convenient, but they risk sticking us with the same wrong approach everywhere.

My guess is that if one or two states allowed gay marriage, a confusing transitional period, while state courts and legislatures worked out what to do, would quickly lead in all but a few places to routines that everyone would soon take for granted. If New Jersey adopted gay marriage, for instance, New York would have a number of options. It might refuse to recognize the marriages. It might recognize them. It might honor only certain aspects of them—say, medical power of attorney, or inheritance and tenancy rights. A state with a civil-union or domestic-partner law might automatically confer that law's benefits on any gay couple who got married in New Jersey. My fairly confident expectation is that initially most states would reject out-of-state gay marriages (as, indeed, most states have pre-emptively done), but a handful would fully accept them, and others would choose an intermediate option.

For married gay couples, this variation would be a real nuisance. If my partner and I got married in Maryland, we would need to be aware of differences in marriage laws and make arrangements—medical power of attorney, a will, and so on—for whenever we were out of state. Pesky and, yes, unfair (or at least unequal). And outside Maryland the line between being married and not being married would be blurred. In Virginia, people who saw my wedding band would be unsure whether I was "really married" or just "Maryland married."

Even so, people in Virginia who learned that I was "Maryland married" would know I had made the strongest possible commitment in my home state, and thus in the eyes of my community and its law. They would know I had gone beyond cohabitation or even domestic partnership. As a Jew, I may not recognize the spiritual authority of a Catholic priest, but I do recognize and respect the special commitment he has made to his faith and his community. In much the same way, even out-of-state gay marriages would command a significant degree of respect.

If you are starving, one or two slices of bread may not be as good as a loaf—but it is far better than no bread at all. The damage that exclusion from marriage has done to gay lives and gay culture comes not just from being unable to marry right now and right here but from knowing the law forbids us ever to marry at all. The first time a state adopted same-sex marriage, gay life would change forever. The full benefits would come only when same-sex marriage was legal everywhere. But gay people's lives would improve with the first state's announcement that in this community, marriage is open to everyone.

Building consensus takes time. The nationwide imposition of same-sex marriage by a federal court might discredit both gay marriage and the courts, and the public rancor it unleashed might be at least as intense as that surrounding abortion. My confidence in the public's decency and in its unfailing, if sometimes slow-acting, commitment to liberal principles is robust. For me personally, the pace set by a state-by-state approach would be too slow. It would be far from ideal. But it would be something much more important than ideal: it would be right.

Would a state-by-state approach inevitably lead to a nationwide court mandate anyway? Many conservatives fear that the answer is yes, and they want a federal constitutional amendment to head off the courts—an amendment banning gay marriage nationwide. These days it is a fact of life that someone will sue over anything, that some court will hear any lawsuit, and that there is no telling what a court might do. Still, I think that conservatives' fears on this score are unfounded.

Remember, all precedent leaves marriage to the states. All precedent supports the public-policy exception. The Constitution gives Congress a voice in determining which of one another's laws states must recognize, and Congress has spoken clearly: the Defense of Marriage Act explicitly decrees that no state must recognize any other state's same-sex marriages. In order to mandate interstate recognition of gay marriages, a court would thus need to burn through three different firewalls—a tall order, even for an activist court. The current Supreme Court, moreover, has proved particularly fierce in resisting federal incursions into states' rights. We typically reserve constitutional prohibitions for imminent threats to liberty, justice, or popular sovereignty. If we are going to get into the business of constitutionally banning anything that someone imagines the Supreme Court might one day mandate, we will need a Constitution the size of the Manhattan phone book.

Social conservatives have lost one cultural battle after another in the past five decades: over divorce, abortion, pornography, gambling, school prayer, homosexuality. They have seen that every federal takeover of state and local powers comes with strings attached. They have learned all too well the power of centralization to marginalize moral dissenters—including religious ones. And yet they are willing to risk federal intervention in matrimony. Why?

Not, I suspect, because they fear gay marriage would fail. Rather, because they fear it would succeed.

One of the conservative arguments against gay marriage is particularly revealing: the contention that even if federal courts don't decide the matter on a national level, convenience will cause gay marriage to spread from state to state. As noted, I don't believe questions of convenience would force the issue either way. But let me make a deeper point here.

States recognized one another's divorce reforms in the 1960s and 1970s without giving the matter much thought (which was too bad). But the likelihood that they would recognize another state's same-sex marriages without serious debate is just about zero, especially at first: the issue is simply too controversial. As time went on, states without gay marriage might get used to the idea. They might begin to wave through other states' same-sex marriages as a convenience for all concerned. If that happened, however, it could only be because gay marriage had not turned out to be a disaster. It might even be because gay marriage was working pretty well. This would not be contagion. It would be evolution—a sensible response to a successful experiment. Try something here or there. If it works, let it spread. If it fails, let it fade.

The opponents of gay marriage want to prevent the experiment altogether. If you care about finding the best way forward for gay people and for society in a changing world, that posture is hard to justify. One rationale goes something like this: "Gay marriage is so certain to be a calamity that even the smallest trial anywhere should be banned." To me, that line of argument smacks more of hysteria than of rational thought. In the 1980s and early 1990s some liberals
were sure that reforming the welfare system to emphasize work would put millions of children out on the street. Even trying welfare reform, they said, was irresponsible. Fortunately, the states didn't listen. They experimented—responsibly. The results were positive enough to spark a successful national reform.

Another objection cites not certain catastrophe but insidious decay. A conservative once said to me, "Changes in complicated institutions like marriage take years to work their way through society. They are often subtle. Social scientists will argue until the cows come home about the positive and negative effects of gay marriage. So states might adopt it before they fully understood the harm it did."

Actually, you can usually tell pretty quickly what effects a major policy change is having—at least you can get a general idea. States knew quite soon that welfare reforms were working better than the old program. That's why the idea caught on. If same-sex marriage is going to cause problems, some of them should be apparent within a few years of its legalization.

And notice how the terms of the discussion have shifted. Now the anticipated problem is not sudden, catastrophic social harm but subtle, slow damage. Well, there might be subtle and slow social benefits, too. But more important, there would be one large and immediate benefit: the benefit for gay people of being able to get married. If we are going to exclude a segment of the population from arguably the most important of all civic institutions, we need to be certain that the group's participation would cause severe disruptions. If we are going to put the burden on gay people to prove that same-sex marriage would never cause even any minor difficulty, then we are assuming that any cost to heterosexuals, however small, outweighs every benefit to homosexuals, however large. That gay people's welfare counts should, of course, be obvious and inarguable; but to some it is not.

I expect same-sex marriage to have many subtle ramifications—many of them good not just for gay people but for marriage. Same-sex marriage would dramatically reaffirm the country's preference for marriage as the gold standard for committed relationships. Of course there might be harmful and neutral effects as well. I don't expect that social science would be able to sort them all out. But the fact that the world is complicated is the very reason to run the experiment. We can never know for sure what the effects of any public policy will be, so we conduct a limited experiment if possible, and then decide how to proceed on the basis of necessarily imperfect information.

If conservatives genuinely oppose same-sex marriage because they fear it would harm straight marriage, they should be willing to let states that want to try gay marriage do so. If, on the other hand, conservatives oppose same-sex marriage because they believe that it is immoral and wrong by definition, fine—but let them have the honesty to acknowledge that they are not fighting for the good of marriage so much as they are using marriage as a weapon in their fight against gays.

The URL for this page is http://www.theatlantic.com/issues/2004/04/rauch.htm.

Federalist Paper No. 6

2007-12-23T09:41:00.000-05:00

Hamilton begins his second Federalist Paper with a brief review of the “innumerable” ‘causes of hostility among nations’. He also makes the rather snarky comment that

A man must be far gone in Utopian speculations who can seriously doubt that, if these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other.

In other words, the idea of peace between separate or confederated states is a pipe dream.

I have to say, Hamilton was not the most optimistic guy. He had an unfailing lack of faith in people (and apparently, especially in women: ‘The influence which the bigotry of one female, the petulance of another, and the cabals of a third, had in the contemporary policy, ferments, and pacifications, of a considerable part of Europe, are topics that have been too often descanted upon not to be generally known.’). So, with this in mind, it’s not really surprising that he spends most of this Paper detailing historical evidence for the greed, vagaries and perfidies of people and states throughout history. He also rightly points out that it is not only statesmen who may determine a state’s peace, but the average citizen as well. He invokes recent (for him) history: Daniel Shays and his Regulators, noting, ‘If Shays had not been a DESPERATE DEBTOR, it is much to be doubted whether Massachusetts would have been plunged into a civil war.’

I should also probably note that despite Hamilton’s misgivings about statesmen, he concluded the ideal form of government had represented all the interest groups, but maintained a hereditary monarch to decide policy. In Hamilton's opinion, this was impractical in the United States; nevertheless, the country should mimic this form of government as closely as possible. He proposed, therefore, to have a President and elected Senators for life (surprising, really, that TJ and Madison couldn’t stand him).

I confess that I misread the seventh and eighth paragraphs the first three times. I thought that Hamilton was arguing that despite all of this, however, there is still hope! (which should have been my first clue that I was mistaken). In actuality, he says that visionary men ‘stand ready to advocated the paradox of perpetual peace between the States’ (written eight years before Kant’s Perpetual Peace). They argue that ‘Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other’: the Enlightenment Era version of the ‘Golden Arches Theory of Conflict Prevention.’

Hamilton counters that republics, even commercial republics, are still just as likely to get into wars. Commerce, instead of eliminating causes of war, simply provides other incentives: war as commerce by other means. As evidence, he cites Sparta, Athens, Rome, Carthage – ‘the aggressor in the very war that ended in her destruction’, Venice, Holland, Britain, Austria, Bourbon, France, England and France involved in Austria vs. Bourbon, etc. In essence, if separate, composed as neighbors, states will fight. Here, he doesn’t offer any explicit evidence that states won’t fight even if they are united (and in fact his mentions of North Carolina’s revolt, the ‘late menacing disturbances in Pennsylvania’ and the insurrections and rebellions in Massachusetts makes me wonder that states will become embroiled in violence no matter what), except to quote Gabriel Bonnot de Mably, l’Abbé de Mably:

NEIGHBORING NATIONS (says he) are naturally enemies of each other unless their common weakness forces them to league in a CONFEDERATE REPUBLIC, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors.

The quote sums up the Paper nicely, as Hamilton notes with his final line: “This passage, at the same time, points out the EVIL and suggests the REMEDY,” which I must assume he addresses in the next Paper, as there are only the two on Dissensions between the States.

Laugh or Cry?

2007-12-21T11:33:00.001-05:00

Radley Balko's "Predictions for 2008" online at reason.

Number Weirdness

2007-12-21T11:03:00.000-05:00

While looking over the set up of the blog last night, I realized my posting has taken on a weird Fibonacci-type sequence: 4, 5, 9. This will make 14. I doubt this will be the last post of December (as I still have several entries in the works), so the pattern will be broken. But I thought it odd enough to be cool enough to point out (remember the WM entry? Yes, the geekiness extends beyond politics).

Keep It Clean!

2007-12-20T23:55:00.001-05:00

While it's fairly obvious I care deeply about the state of American politics, and I hold definite views on policies, and now, candidates, I've tried to keep Publius fairly apolitical. It's not that I mind a good partisan debate, but the point of my blog isn't to try to persuade anyone to my political camp, but merely to get them to pay attention.

I'm also aware that there is a certain amount of mudslinging involved in political campaigns. It drives me crazy, but for the most part I can ignore it. And again, I try not to discuss it here, or if I do, it's based on some extraordinary merits and issued with a caveat, such as I did on Tuesday. But this just bothered me. The following email was forwarded to me this morning (I believe in it's entirety - I don't think the person who forwarded it actually wrote the introduction, since that's not how she writes. In other words, this is comes across as one of those pre-generated responses, like when you sign a petition onlin). Perusing articles of this type online are one thing, but when I'm assaulted by it in my own inbox, it's just too much; I finally had to respond. First, the article:

Interesting Obama history

I’ve been alerted to an interesting Boston Globe article about Barack Obama’s role, when he was in the Illinois legislature, in the attempt to get the state committed to universal health care. It turns out that the story very much prefigures the debates we’re having right now.

Obama later watered down the bill after hearing from insurers and after a legal precedent surfaced during the debate indicating that it would be unconstitutional for one legislative assembly to pass a law requiring a future legislative assembly to craft a healthcare plan.

During debate on the bill on May 19, 2004, Obama portrayed himself as a conciliatory figure. He acknowledged that he had “worked diligently with the insurance industry,” as well as Republicans, to limit the legislation’s reach and noted that the bill had undergone a “complete restructuring” after industry representatives “legitimately” raised fears that it would result in a single-payer system.

“The original presentation of the bill was the House version that we radically changed - we radically changed - and we changed in response to concerns that were raised by the insurance industry,” Obama said, according to the session transcript.

To be fair, the piece also says this:

During debate over the Health Care Justice Act, Obama also attacked the insurers, accusing the industry of “fear-mongering” by claiming, even after he made changes they wanted, that the bill would lead to a government takeover.

This story gives a lot of context to the debate over health reform now. Obama clearly sees himself playing the same role as president that he did as a state legislator — as a broker among groups, including the insurance industry, as someone who can find a compromise solution that’s acceptable to a wide range of opinion.

My thoughts: being president isn’t at all like being a state legislator, Illinois Republicans aren’t like the national Republican party, 2009 won’t be 2003, and the insurance industry’s opposition to national health reform — which must, if it is to mean anything, strike deep at the industry’s fundamental business — will be much harsher than its opposition to a basically quite mild state-level reform effort.

The point is that if national health reform is going to happen, it will be as the result of a no-holds-barred fight of an entirely different order from what Obama saw in Illinois. The president’s role will have to be far more confrontational, involve far more twisting of arms and rallying of the public against the special interests, than Obama’s role as a state legislator in the Illinois case. And it will take place against a backdrop of fierce attacks not just from the industry but from Republicans who fear, rightly, that any kind of reform will move the country in a more liberal direction.

My worries about Obama are that he doesn’t seem to understand this — that he thinks that in 2009, as president, he can broker a national health care reform the same way that as a state legislator, in 2003, he brokered a deal that mollified the insurance industry. That’s a recipe for getting nowhere.

Now, my response:

I don't usually do reply-alls, but the excess of mudslinging emails/op-eds and whatever else in this campaign (not even from the Republicans, from the Democrats!!!) is starting to get to me. And its not just about Obama - although he seems to have borne the brunt of it. I'm tired of EVERYONE getting and everyone receiving. Can we please clean this up and actually have a real debate?! I finally just had to write this:

Ok, let’s look at this honestly. There are two issues here which are being conflated and confused.

1. Obama's health plan
2. Obama's legislative history/ties to lobbyists

The Boston Globe article (the theoretical base of the arguments in this email, actually has nothing to say about the merits of Obama's health plan, just his skills as a legislator. This is the beginning of a legitimate discussion to have, and the Globe does a fair job of presenting the facts (I'll get to the merits of the email in a minute).

But the heading of this email is “I don’t like Obama’s Health Care Plan”. Well, that may be so, but based on what faults? Certainly none with the actual policy are presented within the email or the Globe article.

So, we have an email that implies it will discuss the health care plan, but actually discusses the viability of Obama based on his conciliatory nature.

So again, point 1: the health care plan. The primary criticism Obama has been drawing from the Democrats is that his health care plan won’t cover everyone. This is true. It will only cover those who want to be covered. This is a free country. We can’t force people to have health insurance. This is not analogous to car insurance at all (which I have heard some comparisons to). We can require people to have car insurance should they decide to practice the privilege of owning and driving a car. But if they don’t, then, no insurance necessary. For health insurance, we would have to require people to have car insurance for the privilege of…. Being alive? No, thank you. Even if it is something I want (enough to pay for it myself before I was covered through my job). I’ll accept the government making it as easy as possible for me to afford it in order to increase the likelihood that I will have it and then won’t have to rely on Medicare or Medicaid when I get hit by a bus. But, it should be my decision, not the government’s. I am still an autonomous individual, ADULT. I can make these decisions for myself, thank you (requiring coverage for CHILDREN is another matter). For further discussion of Obama’s approach to healthcare, I suggest these links: http://www.nytimes.com/2007/11/30/opinion/30krugman.html?_r=2&n=Top/Opinion/Editorials%20and%20Op-Ed/Op-Ed/Columnists/Paul%20Krugman&oref=slogin&oref=slogin
http://politicalticker.blogs.cnn.com/2007/12/01/obamas-false-healthcare-ad-draws-fire-from-clinton/
http://jaydiatribe.blogspot.com/2007/12/obamas-and-clintons-health-care-plans.html

To return to point 2: Obama’s skills as a legislator. The Globe article does raise questions about Obama’s honesty about working with lobbyists. I don’t think that working with lobbyists is necessarily wrong (getting insurers on board to provide healthcare does seem like a good idea, but that could just be me), and I could also be willing to accept that Obama has legitimately evolved his thinking since his time in the state legislature, and if placed in the same position today, would act differently (I’d certainly like to think I’ve changed at least a bit – and in positive ways – since 2004). But yes, now that I know that about his history, I will be more vigilante in assessing his interactions with lobbyists, as well as speeches on the subject. But the email doesn’t stop at hey, check out this bit about Obama – maybe you should pay attention. Instead, it continues on to draw conclusions about his ability to push legislation through Congress. Ok, I guess that’s fair. But I can’t say that I think the conclusions make any sense whatsoever.

The email offers two points and then a conclusion:

1. Obama didn’t just roll over to serve the needs of the insurers: he did give them a hard time:
“To be fair, the piece also says this:
During debate over the Health Care Justice Act, Obama also attacked the insurers, accusing the industry of “fear-mongering” by claiming, even after he made changes they wanted, that the bill would lead to a government takeover.”

So he CAN be tough, just not tough enough, per the second point:

2. Being president isn’t like being a state legislator, and passing health care reform nationally won’t be like passing health care reform in Illinois.

Definitely a fair point. However, this doesn’t mean that Obama won’t be capable at the presidential level.

Why must we conclude that health care reform will require a ‘no-holds-barred’ approach? Certainly, ‘special interests’ will want to have their say and get their way (by the way, AARP = special interest, especially from the perspective of anyone under the age of 40, childrens’ advocates = also a special interest group. EVERYONE uses lobbyists, not just “them”). But Congress also has to represent their constituents: old people, middle aged people, and children (in a fit of pessimism I'll say that everyone ignores 20-somethings). And polls have show that the majority of the American public wants some form of wide-spread health care coverage and reform. But who knows, it could get ugly.

To that, I would further say, and so we want a president who will make it uglier by playing partisan politics and refusing to broker a solutions so that the American people can FINALLY get the legislation we want and need?! Policy (that which politics is supposed to create) is ALWAYS a matter of compromise, at least in a democracy. Dictatorships don’t have much compromise in their policies, but don’t tend to act on the behalf of their subjects either. Compromise is a good thing – remember the adage ‘two heads are better than one’? It’s not because both immediately come to an agreement. Yes, policies can be weakened, but if the alternative is complete gridlock and policymaking by lack of progress, then I will conciliation, open-mindedness, compromise, mercy, justice, and the genuine desire to get stuff done! any day.

I obviously am on Obama's side here, as that last paragraph proves, but my broader point is this: I’m glad I was alerted to the Globe article – passing information like that around helps citizens keep candidates and politicians honest. But if we’re going to draw conclusions, let’s base them to the facts that are presented, and ACTUALLY present the facts. Campaigns and policy histories are far too complicated as it is, why make it dirty as well?

And really, why can't we? Without further discussing the faults/merits of an Obama presidency, I'm just tempted by the possible decline in all this name-calling in the guise of fair debate and the 'interests of the people'. It is entirely possible for two rational people to disagree completely on a political issue, and yet remain completely civil in their debate, as well as maintain a friendship. This past Sunday, the 18th, was the national Day of Reconciliation in South Africa. While not at all trying to compare the circumstances, couldn't the US do something like that? Or at least try it in the holiday spirit?

State Experimentation and the EPA

2007-12-20T14:56:00.000-05:00

This article in the LA Times amused me.

Favorite quote: Environmental Protection Agency administrator Stephen L. Johnson's "a confusing patchwork of state rules". It's called federalism, people, and it's the point! States are SUPPOSED to experiment with policies in order to find what works best for them (keeping the national minimums/maximums in mind). California has a lot more cars and pollution than most of the rest of the county (LA tops the American Lung Association's lists for both short- and long-term particle pollution), so thats why they feel they need stricter emissions standards. Moreover, state experimentation allows the rest of the country to get a sense of which policies work and which don't, so that citizens can then push to adopt or adapt them for legislation at the state or the national level. Having done no research on this, I'm pretty sure California has long led the way on pollution standards, and is part of the reason why we have the standards in place that we do now.

Besides, as Dean Baker points out at the American Prospect, you can keep track of it with an Excel spreadsheet.

For further reading on the subject, Publius: The Journal of Federalism (we're an original lot aren't we?) is offering free access to "Environmental Policy and the Bush Era: The Collision Between the Administrative Presidency and State Experimentation", an article from their special edition, US Federalism and the Bush Administration.

Notre ami, M. Franklin.

2007-12-18T13:44:00.000-05:00

The French kind of like him too.

This Is Not a Test

2007-12-18T13:08:00.000-05:00

I'm a little hesitant to link to this essay by Christopher Hitchens in Slate yesterday, but feel that its too good to pass up. I don't really like Hitchens - I think he's too bombastic at times and too often substitutes hyperbole for substance, but he is smart and clever, and underneath it all, I enjoy the point he explores about Article VI of the Constitution.

So, ignoring his ad hominems about Gov. Huckabee, enjoy!

The Good Old Days,

2007-12-17T13:26:00.000-05:00

Continued:

"Have you no decency?"

Today in Federalism

2007-12-15T15:04:00.000-05:00

Happy Bill of Rights Day! Today is the anniversary of the ratification of the Bill of Rights. Enjoy your liberties!

TGIF

2007-12-14T11:56:00.001-05:00

It's Friday and the day of my company's holiday luncheon, so I have very little that is substantive to say. I did want to post this picture I found while looking for communication cartoons for my powerpoint presentation at work. Hopefully I won't ever really get there (although my post last night might be a good start).

Depending on the expected snow storm, I might be more productive this weekend.

The Good Old Days

2007-12-13T22:34:00.000-05:00

Some thoughts occurred to me while I was listening to Denis McDonough speak tonight about candidate debates in this country (YPFP sessions are off the record, but seeing as the topic of the discussion is posted on the front page, I don't think I've given anything away):

We bemoan the disappearance of the 'good old days' in politics - a time when politicians could be more candid and less partisan (forgetting, of course, the partisanship and witchhunts of the McCarthy era). The primary culprit seems to be the media - blamed for dumbing down debates to soundbites. Is this necessarily true, however? The 'old days' certainly had their moments (the bipartisanship during the Truman administration detailed in James Chace's excellent biography of Dean Acheson was astounding and makes me entirely wistful), but have those moments passed entirely?

Isn't it patronizing on the part of talking heads to assume that the public doesn't want these poll-tested, prepackaged deals? Why on earth do they assume that average Americans don't care? Its our country too- perhaps even more so, since we are the soldiers and police officers, firefighters, EMTs, teachers, shopkeepers, workers, and everyone else. We are America. Why wouldn't we want to know exactly what and where our leaders plan to drag us in to?

This will become a common theme here, but we have the power and responsibility to ask the tough questions, as do our spokespeople - the media and Congress - and our leaders - again, Congress and the President - have the responsibility to answer to us. Americans generally dislike those who ride on other's coattails. Its time we realized that's what we've been doing, assuming the media will do our job for us. I always feel like this part ends up echoing 'if you build it, they will come', but its true. If nothing else, we've learned that politicians respond to polling. So if we start demanding real answers, and stop accepting prearranged debates, then mightn't they start to give us what we want?

This is in danger of becoming a bit of a rant, so I think I'll stop here, but this is definitely a subject I feel passionately about. Americans are not dumb. We might be insular and isolated, apathetic or agnostic, but generally, present us with a reasonable argument and we'll at least hear you out. Of course we won't necessarily change our minds, but I think most of us are at least willing to consider alternatives. So present us with some! We don't care only if we have nothing worth caring about. Let's collectively agree not to let politics be one of those.

Public Service Announcement

2007-12-10T14:14:00.001-05:00

Words to blog by.

On the subject of breaks, Federalist Paper No. 6 is coming soon.

Happy Human Rights Day!

2007-12-10T12:05:00.000-05:00

Plan your own celebration!

Good holidays seem to fall on Monday.

Reading List

2007-12-06T15:08:00.000-05:00

Really more like a reading wish list at this point, since I've been behind on my reading list since I was 13 (current list length: 30 pages, typed).

William Blake: The Complete Illuminated Books

From the Guardian.

(Hat tip: Andrew Sullivan)

The Founding Fathers, Exposed!

2007-12-06T12:30:00.000-05:00

This was a fun article on Alexander Hamilton. It's important to remember that while the Founding Fathers were fairly impressive, they were still only human. A lot of them did things that would get a politician fired today (at least).

But of course, that's part of the brilliance of their work: they recognized their failings and those of others, and created a system of governance of the people, by the people, which mitigates the flaws of all of us. They also realized that what was acceptable to them might not be acceptable to us, and incorporated mechanisms to deal with changes in accepted practice, so that our system could carry on, despite all the bumps in the road. And now, we're just the latest incarnation of an enduring vision; not of a perfect union, but hopefully a more perfect one.

Foundations of Liberty: The Great Writ

2007-12-05T14:08:00.000-05:00

Today the Supreme Court takes up the argument that the 2006 Military Commissions Act stripped the Guantanamo Bay detainees of the right to petition for a writ of habeas corpus.

Tom Lynch at Cato weighs in.

Voting Rights and the iPod Generation

2007-11-23T13:44:00.000-05:00

Jonah Goldberg at the NRO on voting rights.

My question is, even if we really wanted to, could we do it? *commence research*

On the subject, I found an interesting article from NJ. Apparently, Article II, Section 1, Paragraph 6 of the New Jersey State Constitution used to state that "no idiot or insane person shall enjoy the right of suffrage." On Nov. 6, 2007, it was amended to say: "No person who has been adjudicated by a court of competent jurisdiction to lack the capacity to understand the act of voting shall enjoy the right of suffrage." So, at least in NJ, Jonah's proposal could be acceptable; he makes the argument that those lacking 'basic civil literacy' lack the capacity to understand the act of voting (because if they did they would accord it proper respect, and not 'cheap[en]' it, I'm guessing).

To me, the difference between the two sentences is really a cosmetic change; while the derogatory terms 'idiot' and 'insane' are removed, the point remains that a court can decide someone is not competent to vote, and thus disallow them from doing so.

So, two follow-up points/questions: 1. the practical basis and 2. the Constitutional case.

1. The text of the NJ Constitution says 'No person who has been adjudicated by a court....' My interpretation of that (based on my understanding of competency hearings in general), is that each individual and each case is addressed on an independent basis to determine the specific competency of that individual, and it must be done in a court and ruled upon by a judge- failing a political literacy test, while possibly identifying an uneducated individual, will not carry the legal weight to deny voter competency. This would seem to preclude against declaring an entire group of people incompetent, since I highly doubt that Jonah or any one else wants to spend the rest of their life suing for competency rulings on every one who fails such a test.

2. The original text of the Constitution does not address the voting rights of citizens, only that they have the right, through state Electors, to chose their representatives. How the state Electors are chosen, however, is left up to the individual states. However:

But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States....

Now, admittedly, this statement comes from a section on apportionment of Representatives. But it does clearly state the 'right to vote'. Furthermore, US citizens cannot be denied the right to vote on basis of race, color, previous condition of servitude (15th Amendment), sex (19th Amendment), age over 18 (26th Amendment). Conditions under which a citizen may have their voting rights denied: participation in rebellion or other crime (14th Amendment).

I might be incorrect, but I believe the purpose of the 24th Amendment is to prevent economic status from being used as a bar to voting (the inability to pay a tax). The specific text is this:

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reasons of failure to pay any poll tax or other tax.

So, you can't be denied the right to vote because you are: a different race, a different color, a former slave, a woman, the wrong age, or poor. You can be denied the right to vote because you tried the overthrow the government (I guess you wouldn't be voting for them anyway) or you committed a crime. I'm not entirely certain how we get away with preventing criminals from voting, but my guess is it goes something like this: because they reflect poorly on US citizenship and their evident disregard for the laws of the US which protect us hint that, if allowed to vote, they might vote in such a way to do away with those protective measures, or allow such behavior as would be detrimental to society. Which I think is ridiculous because it assumes that laws in this country are automatically beneficial (let alone Constitutional- all I can think about in this case is the civil disobedience in the 1960s- we want to deny these people the right to vote, after passing Amendments and laws so that they could?!). But I guess that a parallel argument could be made for uneducated voters.

I am neither a lawyer nor a legal scholar, so I could be missing something on the right of criminals to vote, but either way, not allowing people to vote because you think they are stupid (while not at all contradictory to the spirit of the Constitution- the Founders were afraid of mob rule, hence creating a republic, not a democracy), does go against the letter of the Constitution. Two final, and fairly important quotes:
The 14th Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.Voting might not have been an original right, but I would say it definitely counts as a privilege. And furthermore:

The 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Just because we don't have an Amendment saying uneducated people can't vote doesn't mean we can deny their right to do so.

(Hat tip: Kathryn Jean Lopez by way of Andrew Sullivan)

Happy Thanksgiving!

2007-11-22T13:03:00.000-05:00

Politics and pardons for $200, Alex.

The dinner discussion you might want to avoid.

Me? I just thank goodness.

This year I'm thankful for professors, specifically my American Law and Civil Society seminar prof (really never thought I'd use that material ever again) and my religious ethics prof. These are the two profs probably contributed the most to my intellectual development (academic development would be a longer list), and probably most responsible for me being where I am today. And I'm especially thankful that I was able to get back into contact with both of them recently, and tell them what an impact they have had.

'Til the other side of the turkey torpor.

Noun vs Verb

2007-11-21T17:52:00.001-05:00

I some how missed this op-ed by Peggy Noonan.

I'm not sure exactly where I fall in her categories. I can be ardently interventionist, particularly on matters of the Responsibility to Protec t. However, I don't believe that democracy can be imposed, and even if it could be, that we have a right to do so. I believe we have a responsibility to help our fellow humans, but that duty is usually best fulfilled by helping them help themselves.

Some instances, such as humanitarian crisis, or genocide, require direct action and aid. Others, such as combating dictatorship or lack of civil or economic liberties, does not necessarily require such active intervention. Sanctions, perhaps, or diplomatic repercussions (bilateral, multilateral or international (UN)), as well as support of dissidents and activists, are important. Especially diplomatic measures- what sort of signal does it sent that we say we support civil liberties and human rights, but then have normal relations with governments that suppress their own people? I'm not saying we should never work with China or Pakistan or Saudia Arabia- that would be naive, irresponsible, and possibly insane- but that doesn't mean that just because they are 'our' dictators we should give them a free pass.

I guess the best summary for my attitude is if we're going to talk the talk, we should walk the walk. And I sincerely hope we keep both talking and walking.

Federalist Paper No. 5

2007-11-12T11:58:00.000-05:00

Jay recaps the general argument of the first set of Federalist Papers in paragraph two: ‘that weakness and divisions at home [will] invite dangers from abroad; and that nothing [will] tend more to secure us from them than union, strength, and good government within ourselves.’ In this last in the series on the Dangers from Foreign Force and Influences, Jay invokes the union of England and Scotland (part of what makes it the United Kingdom), the example with which the former colonists were ‘in general the best acquainted.’ He begins with Queen Anne’s appeal to the Scottish Parliament in 1706 to accept the proposed union. The predicted benefits:

An entire and perfect union… will secure… religion, liberty, and property; remove the animosities amongst [Scottish clans and regions], and the jealousies and differences betwixt [the] two kingdoms. It must increase… strength, riches, and trade; and by this union the whole island, being joined… will be ENABLED TO RESIST ALL ITS ENEMIES.

In contrast, Jay reminds the reader of the island’s history before the union: divided into three nations, ‘almost constantly embroiled in quarrels and wars with one another.’ Despite their shared interests and common cause, at least with respect to the ‘continent’- Europe-, instead, mutual jealousies, often nursed by their very enemies in Europe, kept the island divided.

He then returns specifically to America. He asks directly: if America is divided into three or four different nations (confederations; we’ve already tried and failed at 13 individual states), won’t the result be the same as in Britain? Although he couches it in terms of ‘envy’, what Jay is really describing in the fifth through seventh paragraphs is the possibility of unstable balance of power, resulting in an arms or trade race, but importantly, ‘formidable only to each other.’ Not exactly a future worthy of a country that defeated Britain.

Jay also addresses the possible counter-argument, that the confederacies will form defense unions. He challenges the reader to name such a time when the independent states combined in an alliance and united their forces against a foreign enemy. This line actually confuses me. Wasn’t that what they did with the Revolutionary War? Perhaps Britain wasn’t a foreign enemy, because it was the colonizing power?*

He also raises the point that should the confederacies go to war with each other, they may be tempted to reach out to foreign nations for assistance, but these powers, once received, could then turn on their American allies to conquer, as the Romans did millennia before.

Jay debates the subject of the Dangers from Foreign Force and Influence through four consecutive Papers. His work sometimes tiptoes this side of specious, being more convinced of his own rightness than in presenting a fully fledged argument, but, especially in the latter Papers, with their wealth of historical examples, he does present a strong argument.

This is also the last of Jay until Paper No. 64, when he returns to discuss the Powers of the Senate. Next, we’ll explore the problem of Dissensions between the States, and reintroduce Alexander Hamilton.

* A friend offers this interpretation: "I think he is asking, rhetorically, when Britain and Spain, which had formerly been divided (Britain consisted of Scotland, Wales, etc., and before that England was just the name of land mass that contained the kingdoms of Mercia, Wessex, Northumbria, etc., and before it was united Spain contained Aragon and other kingdoms) opted to form the loose kind of confederation that anti-Federalists preferred. The answer, he implies, is that they did not. They formed strong unions that allowed them to repel foreign invaders."

So, basically a restatement of his previous points, with more historical evidence.

But How Can We Remember You If You Won't Let Us Forget?

2007-11-08T12:44:00.000-05:00

So it seems that Guy Fawkes is not going away any time soon. As most everyone knows by now, on Nov. 5, libertarian GOP candidate Ron Paul's supporters launched a money-bomb fundraising campaign, inspired by the image of Fawkes from the 2005 movie V for Vendetta. As Jacob T. Levy (who I just discovered) explains here, this is more than a little weird, and heavily ironic.

I was never a fan of V, mostly because I don't accept that one man's terrorist is another man's freedom fighter: the definition of terrorism as use of force/violence either against or to cause terror in a civilian/non-combatant population in order to influence state policies is well established, and condemned as a crime by most major moral traditions. Like murder, terrorism is by definition wrong.

Ironically, the premise of the comic makes sense, and, in spite* of the torture, it raises excellent questions about the role of governments, the meaning of patriotism, and the protection of liberty. But all of that is lost on an American audience, and so we end up with a libertarian using a terrorist as a campaign gimmick.

And in light of all of this, I'm doubly glad Washington banned Guy Fawkes Day celebrations- both in protest to the actions of the British monarchy, and also because the alternative seems to be honoring a terrorist.

(Hat tip: Andrew Sullivan)

*There can never truthfully be an 'in spite of' with regards to terrorism- once it enters the picture, all moral legitimacy is lost

Guy Fawkes, American Exceptionalism and Good PR

2007-11-06T15:00:00.000-05:00

I wrote in the Federalist Paper No. 3 entry that Americans have long characterized ourselves as 'exceptional' and repeatedly rejected the practices and politics of Europe. Yesterday (Nov. 5) was Guy Fawkes Day, a holiday in Britain celebrating the foiling of a Catholic plot to blow up Parliament in 1605. However, Fawkes' torturing, and the anti-Catholic propaganda employed by the monarchy eventually tarnished the holiday, leading George Washington to ban its celebration in the US. All very noble, democratic, rights of man, etc., right? Perhaps not.

The Corner at the National Review discusses the reality of the situation: Washington wanted the friendship of the Canadians (hmm, especially since we wanted the British out of the neighborhood- dangers of foreign force and influence possibly?) and since the Quebecois were all Catholic, celebrating 'Anti-Pope Day' might not have been very politic.

So again, its not necessarily that American leaders can be any less realist than Europeans, its just that they're expected not to be- although, really, I'd say they're victims of their own success. A brilliant professor of mine once said that words create reality: if we say that we are idealist and above realpolitick, then we will be, even when we're not. Contradictory and confusing? Of course, but that's human nature for you.

(I stole the picture and got the links from AndrewSullivan.com. I hope he doesn't mind)

Election Day

2007-11-06T09:54:00.000-05:00

Today is Election Day! Don't forget to vote!

Federalist Paper No. 4

2007-11-04T10:23:00.000-05:00

In retrospect, Jay’s emphasis in No. 3 on just and unjust wars really was about not giving other nations just cause against America, through foolish actions on the part of individual states or citizens. Jay’s first line in No. 4 is clearer: ‘[the] just causes of war given to other nations’ (my emphasis).

Still, the second paragraph reaffirms my argument that Jay rejects- at least in the public formation of policy- the practices of realpolitik, and war as politics by other means. He doesn’t ignore that realism is a compelling theory of international relations, with powerful players, but he does diminish its legitimacy, calling the practice ‘disgraceful’ to human nature. I do think Jay- all the Founders, really- is trying to move America in a more idealistic direction, by redefining national interest to coincide more firmly with international interest. It’s a barely nascent line of thinking, but one that prevails throughout American political literature, and illustrated by history.

Returning to the Paper.
Jay warns Americans that not only do they need to protect themselves against causing unjust war, but also aggressors in unjust wars. If you remember, in No. 3, Jay fixed the causes of just war as primarily rising from the violation of treaties or direct violence- attack. Under this definition, those who would seek to use force to secure other goals would not have just cause.

Jay gives specific examples, drawn primarily from the pursuit of trade advantages. He mentions rivalries over fisheries (Britain and France) and navigation and shipping (most of the powers of Europe), particularly in shipping to China and India. Now, most people today would suggest using trade sanctions, quotas, subsidies and other mechanisms of economic soft power to diminish America’s advantage. Indeed, mercantilism was a well-understood economic policy, but it was seen more as a means to grow a nation’s wealth (and therefore military potential), rather than project power over other nations. However, and I could definitely be wrong about this; American history wasn’t my preferred topic of study in school; military power was still the primary tool of foreign influence. I’m pretty sure that is what Jay fears here, in part because of his early references to war, and also because he mentions Spain blocking the Mississippi and Britain the St. Lawrence, both of which could only be done and maintained- and defeated- by military might.

In such situations, with such inducements to war, the ‘best possible state of defense’ depends on the ‘government, the arms, and the resources of the country.’ And what form of government, what means of control of arms and resources, could best defend the country? Why, a unified national federation of course!

Jay’s arguments for unification:

Broader and deeper pool of resources- human, capital, natural, vegetable, animal, mineral. Not only the best leaders (Jay discussed peace/pre-war time leaders in No. 3, but focuses more on war time leaders here), but the best soldiers, and of course the necessary resources for war. (Paragraph 12)
Central authority for mobilizing, distributing and organizing resources- primarily military. (Paragraphs 12-16)
Central authority creating regulation- primarily for markets: trade, capital, credit, etc. Established, regulated, and stabilized markets strengthen the so-called “soft power” of a nation. (Mentioned in the last paragraph)

Pretty straightforward, with few surprises. These are the arguments I expected all along. But I’m definitely glad for where Jay took the last Paper.

One Paper left on the Dangers of Foreign Force and Influence: No. 5. Coming Shortly.

Pursuing the Global Common Good

2007-11-01T17:10:00.001-04:00

One thing I love about being in DC is the opportunity to attend countless policy events. I try to attend a fair number, on a variety of subjects and so far I've been fairly lucky in their quality. One in particular stands out, not for its stunning brilliance, but rather for the opposite. I studied religion and ethics in international relations in college, so I was particularly excited about the Center for American Progress' event 'Pursuing the Global Common Good' to launch their report of the same name. Instead, I was sorely disappointed.

The event itself wasn't bad, just unoriginal and mediocre, prompting me to tell a friend later: 'If you've seen heard one lecture on morality in the practice of foreign policy goals, you've heard them all.' Still, I held out hope for the report. Some ideas and thoughts don't translate well into events; the report would present each position as it was intended. Sadly, length and thoughtfulness of presentation do nothing positive; rather the sense of a missed opportunity only heightens the disappointment.

Pursuing the Global Common Good is intended as a reader, particularly for those who respond to the call of religion moral teachings. While the report also explores secular moral reasoning, the central arguments stem primarily from the Abrahamic religions. Not surprising, considering the book is in part the work of the Faith and Progressive Policy Initiative at the CAP. Each essay examines an important international issue, treating it within the context of current affairs. The intent is to outline a multifaceted and holistic ethical foreign policy. In that vein, it suggests that there is a role for morality and ethics in the theory and practice of foreign policy, and by extension, a place for peoples of faith within the ranks of policy makers. As a libertarian, I have every interest in maintaining the separation of church and state. But this provision in the Constitution was not meant to exclude people of faith from the practice of statecraft, or even to force them to discount their moral views learned from religious instruction. Indeed, the Founding Fathers were religious men, and their belief that 'all men are created equal' (my emphasis) in God's image, with His Spirit, infuses the American system's logic of inalienable rights, even if Biblical teachings are not cited directly. Plus, since I was a religion minor, from a personal/academic standpoint, I was ready for a good debate. Unfortunately, PtGCG has serious substantive and analytical flaws. While I haven't addressed each essay, most of the specific sources of my disappointment are detailed below.

Introduction I have to say, I think the Introduction was my favorite chapter. Part of the reason I studied anthropology and religion as an IR major was that I am fascinated by concepts of identity (individual and communal) and the influences they have on policymaking. I was especially taken by the appearance of ubunto, a word I became familiar with while writing my thesis. I think it is a fascinating concept, and really enjoyed the author's effort to open it to debate for Western audiences. At some point, my attempt to write about the Introduction developed into an outline for an essay on communalism and liberalism (sample discussion questions: Is individualism inherently modern? Can communalism sometimes be modern?) In the interest of staying on point, I decided to set aside the ubunto piece. It's still in development, but I'll post when its done.

Pursuing the GCG (Title Essay) Each section is more like a set of bullet points. While I can't (and probably wouldn't) argue with any of the points specifically, in total they come across more as many good points set in an outline (not even necessarily in best order) to be written into a longer paper. Unfortunately, all we are presented with is the outline, and not the thesis. There is the requisite Darfur paragraph (not to in any way diminish the events in Darfur, but what about Niger a few years ago, or Somalia even now? Or the Congo, past, present, and possibly forever?- to name just a few. If we're going to be serious about stopping genocide and human rights violations, then lets' actually acknowledge all of them, not just the popular ones). I understand that one of the authors is a Ph.D student at Georgetown, but couldn't he have produced something more than an outline?

Forging a Response to Climate Change: Why Communities of Faith Are Essential
I will admit that I was thrilled to see a section entitled 'The Federal Response' in the essay on global warming; although this work is aimed at an American audience, perhaps, in recognition that this is an international issues, and falls under the jurisdiction of several international governmental organization, the authors meant the US response as one state in a larger (global) system?! Sadly, my hopes were dashed. The authors mean Presidential and Congressional policy responses. Which leads me to a temporary digression for a rant:

In a federation (such as the US), they are ALL 'federal' levels. What the authors meant to say was 'national', as in, 'of the nation.' I don't expect everyone to always get it right, but there are some who should really know better (here's looking at you Washington Post).

A Faithful Case for Intervention: Our Common Responsibility to Protect Humanity and Prevent Atrocities
In this essay, one section discusses the problem of ‘Protecting People under Threat.’ The author, Dr. Elizabeth Ferris, informs the reader that

most of the debate about the responsibility to protect has focused on the use of military force. The International Commission’s impressive work on the responsibility to protect includes many pages of possible actions that can be taken… but most attention has focused on when a military response should be initiated. Yet intervention can be seen on a continuum.

She goes on to list non-military interventions:

fact-finding missions, promises of new assistance or withdrawal of assistance, diplomatic demarches, disinvestment or economic sanctions, monitoring by human rights monitors, police action, deployment of military force, and many others.

And yes, she is correct; there are many ways and means of intervening internationally without resorting to ‘boots on the ground.’ And the authors of Responsibility to Protect do an excellent job of discussing those options. But I think that part of the reason for the focus on the military option is that countries are so loathe to use it. Diplomacy, disinvestment and sanctions are all well-used tools in the international community’s belt (read about the controversy over ‘smart’ sanctions here), with varied results, precisely because they are not military options. Most politicians look first to those options so that they can give the appearance (and occasionally actuality) of acting, without invoking the generally unpopular option of use of force. So, for those who are concerned with preventing genocide and other violations of human rights, more emphasis must be given to military solutions, in order to force a debate on a country’s true level of commitment. All options must be of course discussed, but there are situations in which the use of force is no longer an option, it is a necessity. Rwanda was such a case. Kosovo as well. Darfur has proven itself to also fall into this category. In fact, whenever the threat of genocide is real (whether or not the politicians actually label it as such), we must use force must to prevent it. Economic sanctions are not strong enough. For someone claiming to write a ‘Faithful Case for Intervention,’ I am surprised by Ferris’ failure to honestly discuss the arguments for military intervention. Instead, her superficial mention of the idea seems instead intended to dissuade the reader from supporting the use of force. I am disappointed by her treatment of the subject; I feel that it is almost dishonest. After all, St. Augustine essentially invented the notion of ‘just warfare’, under which the prevention of genocide morally, and legally (1948 International Convention against Genocide- mentioned a page earlier in Ferris’ article) falls.

I generally think that the emphasis of this report may have been a bit off. While keeping in mind that this aims to encourage communities of faith to produce global citizens, CAP is a secular organization, and it is from that perspective that many of its supporters arrive. This work should be a means to: 1. Persuade a secular audience to welcome faith-based actors in to foreign policy on the basis of their common goals and 2. Strengthen the arguments facing secular actors who may disregard (or are pushed away by) realist concerns but are attracted to moral appeals. PtGCG really does neither.

PtGCG is a truly promising abstract, but as a finished piece, it fails to deliver. I expect this quality from undergraduates (of which I was one not all that long ago), but not from graduate students and experienced practitioners. I really hope this is not the CAP's final work on the matter, because it is an important discussion to have in US politics. But we, the American people, deserve, and desperately need, a real debate, with all sides honestly and fully represented. One of my favorite lines from the West Wing is from 'Let Bartlet Be Barlet' in the first season: 'We're going to raise the level of public debate in this country and let that be our legacy'. Why does it take a television show to subscribe to that purpose?! Americans aren't stupid, or apathetic (just overwhelmed). But how can we expect to lead the "free world" if we don't actually discuss what that leadership entails?

Thats really more than I had ever intended to write about this report, so I think I'll stop. I will have to revisit some of the topics discussed here (the Introduction in particular) so those will appear in due time.

That Publius Guy (a word about the title)

2007-10-27T08:17:00.006-04:00

I used to think that that the pen-name for the authors of the Federalist Papers was just a clever form of anonymity- dubbing themselves 'Publius', the voice of the concerned public. Not exactly. Hamilton, Madison and Jay didn’t just pull any authoritative-sounding Greek name out of a hat. Like most intellectuals of the day, they were at least passingly familiar with classical history. In fact, Publius was just another front in the PR war. In the Introduction to my copy of the Federalist Papers, Kesler writes:

[Hamilton] chose 'Publius' as the pseudonym, trumping his adversaries invocation of heroes of the late Roman republic (Brutus and Cato) with a reference to one of the founders and saviors of republican Rome- Publius Valerius Publicola, whose biography was paired with that of Solon in Plutarch's famous Parallel Lives. Solon, the democratic lawgiver of Athens, had lived to see his polity overthrown by a tyrant; but the Roman Publius firmly established his republic, which endured and expanded for centuries. Moreover, after making his laws, Solon had left Athens for ten years in order to avoid having to interpret his legislation. By contrast, Publius had remained in Rome in order to serve as consul, to improve (at a critical moment) the city's primitive republican laws, and to impart his own spirit of moderation, justice, and wisdom to the regime. What did this imply for the American Publius? At least this, that he wished to seize a fleeting moment favorable to constitution-making- when the wise and moderate men of the Federal Convention would have their greatest influence- in order to form a just and enduring republic in an extensive land.

So other than a nice history lesson, what does this mean for this blog? Why did I chose 'We Are Publius' as my title?

It certainly wasn't out of arrogance. I have no pretentions about being the next Madison. I can only dream of being half as good of a writer, and the number of important civic topics on which I am not entirely woefully ignorant is laughable. If the future of American republicanism is resting on my shoulders, then we are all in a lot of trouble.

Except, in a way, it is. I am an American citizen, and proud to be. I love my country. I think the 'American Experiment' is one of the most incredible achievements in human history, not because we always live up to our vision, but we constantly strive to. And we learn from our mistakes. We are a work in progress, and we're still young, but even 200 years later, we cannot be judged a failure. I hope we never are.

But inorder to ensure our success, we all need to be Publius. We need to serve as consuls (representatives, at all levels), improve our laws in the constant pursuit of justice tempered by mercy, and impart our own common-sense spirit of endeavor, of charity, of moderation and love of liberty.

And that's why I started this blog. This is my challenge to myself, and to others: to be a better citizen. Better informed, more thoughtful, more active, less complacent citizen, of America, and of the world. It won't be an easy task, and not one to be completed in a year, or two, or even a lifetime. But I'm not sure I can think of a better charge.

Federalist Paper No. 3

2007-10-21T10:22:00.000-04:00

The title for the Federalist Paper No. 3 is ‘The Same Subject Continued: Concerning Dangers from Foreign Force and Influence’, so naturally Jay brings in themes from No. 2. He begins by reiterating that the ‘conventional wisdom’ of Americans is that of the ‘importance of their continuing firmly united under one federal government, vested with sufficient powers for all general and national purposes.’ As a writer, I love his sly (although really quite obvious) flattery: ‘the Americans, intelligent and well-informed’, for whom he has ‘great respect.’

Jay finally gets to the meat of the matter in this Paper (I suppose No. 2 could be considered his introduction?). Jay states that the first goal of reasonable people: securing their safety. He notes that threats can come from ‘foreign arms and influence’, as well as domestic causes. He chooses here to discuss the former, by examining ‘whether… a cordial Union, under an efficient national government, affords… the best security that can be devised against hostilities from abroad.’

Jay begins, not with the possible threats faced by America, but with a meditation on just and unjust wars. Instead of questioning which formulation of state (national federation vs. various permutations of confederacy and independent states) will best muster a defensive army, he asks which will be more likely to give just causes of war.

The more I think about this approach, the more it astounds me. I suppose that the question of the capability to form a winning army is not strictly necessary, as only four years early the Americans had defeated the British, one of the greatest military powers in the world. Still, as Jay notes later, even at this early date, America had already signed treaties with six foreign nations (Britain, France, Spain, Germany, Portugal and Prussia), with all but Prussia maritime nations capable of conducting both naval battles and landing troops on American shores. Furthermore, both Britain and Spain were neighbors, with colonies flanking to the North and South. So despite the existence of treaties, the threat of violence, even just as small incursions by guerilla groups, remained fairly high. And yet, the early focus of this Paper is the morality of the possible conflicts, not their military outcome. Jay only returns the discussion to the question of federation vs. confederation in the 7^th paragraph:

It is of high importance to the peace of America that she observe the laws of nations towards all these powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate States or by three or four distinct confederacies.

The question in my mind now becomes: could this be an example of the genesis of American exceptionalism? America has been characterized as special from the very beginning: Winthrop’s famous, “City upon a Hill” sermon was given in 1630 (no, Reagan didn’t use it first), but the sentiments expressed here seem more in line with a rejection of Europe’s realpolitik. And yes, while I’ve known for quite some time that American foreign policy is often presented as idealistic and, if not more cooperative, than at least less expedient than that of ‘Old Europe’. (I think Kissinger’s Diplomacy devotes a whole chapter to Wilson’s perfection of this stereotyping of foreign policy). But I didn’t think, or at least had forgotten, that the idea started so early. However, Jay’s recommendations, while internationalist in nature, and morally-driven (really, state structure decided on the basis of the likelihood of venturing into a just war?), are no less self-serving than Bismarck’s. It’s just that Jay defines the good of the state differently. Bismarck and other realists view the national interest as roughly: territorial control and integrity, military and economic security, ready ability to project national power, and the means to increase and expand those components. Ok, excellent. Those measures make sense, given the world in which they developed. Jay doesn’t address those issues, at least not here. Here is his logic:

A national government is more efficient, and more appealing to men of character, who will then ‘not only consent to serve, but will also generally be appointed to manage it,’ and furthermore, these officials will be the best of the best, because a broader pool (the whole country vs. the individual state) will bring more qualified applicants together, and from there the people will be able to chose the MOST qualified: ‘[a] more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government….’ The result will be a government that is ‘more wise, systematical, and judicious’ than the individual states can afford, and consequently: 1. Other nations will be more satisfied with our leadership, and 2. American citizens will be safer, presumably as the enlightened government will respect our rights and security, and so work harder to secure both. He further argues this point in the next paragraph: under a national government, laws, both domestic and international (treaties) will apply equally to all citizens; judges will have consistent standards of appointment as well as enforcement of rulings, and so on. This is known as the ‘Full Faith and Credit Clause’ of the Constitution. Great, glad to have it. But what about those foreign forces and influences?

Well, all those temperamental little states, especially the borders states, might be tempted to ‘swerve from good faith and justice’, by, perhaps, picking a fight with Britain or Spain, or the Indian nations (I really love Jay’s statement that ‘Not a single Indian war has yet been occasioned by aggressions by the present federal government- here he means the confederate government under the Articles- the ‘feeble as it is’ is the clue’. He’s right, but oh so innocent). Even if the state leadership rejects the temptation, the state’s citizens may not. However, the state may not have the means, or truthfully, the desire, to punish those wayward citizens, and since these things have a way of spreading, suddenly there is another war on the continent, between, say, Maine, and Britain. Good going!

All of this makes a lot of sense- while there can be (especially in the realist school of thought) good reasons for inviting war, most people don’t usually want to. Jay’s logic is sound, if his paragraphs are occasionally a bit hard to follow. And again, by rejecting the discussion of wars prompted by intemperate grievances, Jay implies that this nation will literally chose its battles differently. He doesn’t explicitly dismiss realist reasons for war (presumably wars fought for the expansion of territory or national power aren’t intemperate), but he does imply, or at least allow the audience to infer, that those arguments will not influence national policy. American exceptionalism again.

Jay finishes this Paper by finally addressing the compelling argument that national unity = national strength. If the national government does get drawn into a conflict started wrongly by a state, America’s internal unity, and consequent strength, will be in a better position to offer ‘acknowledgements, explanations and compensations’. Little states are forced into pardon and humiliation by powerful nations, as Jay illustrates with the example of Genoa in 1685.

But why did Jay spend so much time discussing just vs. unjust wars? Where is the national interest? I feel that that little train of argument, so discussed in the first part of the Paper, doesn’t quite arrive in time for the end of it.

I can read into the text, and argue that not only will a national government be more temperate and so less likely to pick unprovoked fights, when it is forced into war by the aggressions of another state (defense is considered a just cause of war), it will have the court of public opinion on its side. But Jay doesn’t deliver that argument himself. He takes it for granted that just wars, and ensuring that those are the only type of war fought, are a sound argument. Which, hey, we’re Americans, so he’s not entirely wrong. But where does this attitude come from? Our religious and civil policies are already different from Britain; this we know, this is why we were founded. But when does the rejection of realist national military and diplomatic policy occur? Perhaps I’ve missed it and it’s no longer an issue by the time of the Constitution and Federalist Papers. I think not though. These Papers are part of the debate about American government and identity. Foreign policy intentions certainly fall into that.

I don’t think this topic is exhausted yet. Now I’m really curious as to what else I’ll find in the rest of the Papers.

Federalist Paper No. 2

2007-10-15T08:19:00.000-04:00

As an exegesis of the Federalist Papers, or even just an argument in favor of them, No. 2 isn’t particularly strong. I probably would have gotten marked down for writing something this flimsy in high school. It’s not that Jay doesn’t have good arguments in favor of the Constitution, it’s just that he doesn’t make them. Instead, this Paper consists almost entirely of assumptions, implications, and the reputations of others.

The first 14 Papers generally cover the “Utility of the Union for your political prosperity” (see A Short History of the Federalist Papers). Their argument is that the “Constitution… [is] for the sake of the of the Union, and the Union… [is] for the sake of safety or self-preservation” (Kesler, Introduction, xvii). In this vein, Jay begins with the statement: “Nothing is more certain than the indispensable necessity of government.” This line wouldn’t have been likely to garner much disagreement. The Founding Fathers were working on the shoulders of the philosophers Hobbes and Locke, who argued that humanity existed in a ‘state of nature’ (resulting in a life that was ‘nasty, brutish and short’) without a government to moderate our baser instincts. This is the idea behind the ‘social contract’, which Jay references almost as a sidebar: the people will need to divest some of their natural rights to the government, in order to secure some protection. So far so good. The radicalism of the Constitution wasn’t the creation of a government, per se, but its structure.

The federated unity of the proposed government is the most important part of the Constitution, and the defense. Some had suggested creating several confederacies, each holding the powers suggested for the single national government. Jay dismisses the merits of that suggestion outright. He makes the point that prior to the War, the former colonies had been convinced of the necessity of unity (remember the political cartoon "Join or Die " from elementary school?). Indeed, it was the colonies united efforts which allowed them to win the Revolutionary War.

Still, the supporters of confederacies must have had some reasonable arguments, yes? Well, perhaps. But we’ll never know just from reading this Paper. Jay doesn’t address them. Instead, he paints a picture of a united people occupying a united land. In addition to the emotional response it stirs, it also hints at important economic truths: in a world still dominated by agriculture and horse/wind power, extensive and varied lands for crops/livestock combined with navigable rivers and safe ports produced a powerful economy. But remember also that NJ and NY and Massachusetts used to fight over tariffs, shipping costs, port fees, etc., costing farmers and merchants alike. A unitary and singular trade policy that allowed the free flow of goods between the states, and instead directed all mercantilist policies towards Europe, would yield substantial dividends.

It should be noted, that Jay takes a few rhetorical liberties here. The colonies had never had the same religion: Massachusetts was founded by the Puritans, who were Calvinist; Virginia was founded as a nominally Anglican colony. Even if one was to argue that both colonies were Protestant, don’t forget that Maryland was established as a Catholic colony (and while all are Christian sects, try explaining that to those who feared that the ‘Papists’ would subvert the American traits suspicion of authority and separation of church and state). Still, it’s a very nice paragraph.

Jay then returns to his previous point about how Americans used to believe that we needed to be united to survive. The very best minds had been convinced of it, and the people had believed their leaders. And now the very best have again come together, and produced a unifying Constitution, so the people need to believe their leaders again. Really, this piece is more a defense of the Convention by way of defending the First Continental Congress (Jay’s Congress of 1774). The Congress was formed in response to the Intolerable Acts passed by the British Parliament. Patrick Henry wanted to form a new government, but several conservative members (including Jay) supported a Plan of Union. That Plan was rejected, but the Congress did sign the Articles of Association (AoA) which intended to modify the colonial government, in part through the threat of boycott. In the AoA, the colonies declare their allegiance to the king, but state that Parliament’s actions are unacceptable. They state their grievances, and the consequences of not rectifying those complaints. Most importantly, in the last paragraph, the delegates swear: “And we do solemnly bind ourselves and our constituents”. Union! at least of a sorts. Not long after, the Declaration of Independence is signed, and history is made.

The readers of the Federalist Papers would have been familiar with this background, as it would have been recent events for them, rather than our history. Still, I stand by my original statement: No. 2 is a rather flimsy argument. As far as I can tell, after several re-readings, Jay doesn’t mention the Dangers of Foreign Force and Influence as the title suggests. In fact, he does very little to address the particular merits of either union or confederacy, stating instead: “I am persuaded in my own mind.” There are arguments to be found referenced throughout the text, but they are not explicit. The political nature of the Federalist Papers is made clear here, if it is more understated elsewhere.

Some final points: yes, in the 8^th paragraph, when Jay refers to the institution of a ‘federal government’, he is referring to the Articles of Confederation- clearly not a federal government in our current understanding of the word. Unfortunately for the beginning reader, the authors of the Federalist Papers, were rather casual with their use of ‘federation’ vs. ‘confederation’- the words are used interchangeably. Usually, the context removes any doubts about the intended meaning/current interpretation, but I’ll do my best to catch any occurrences and clarify them. Here, Jay’s point is that the Confederation was flawed and that a less hasty and more deliberate consideration of government has yielded a less flawed proposal.

And just for a bit of fun (a professor of mine used to introduce such tidbits with, ‘historically speaking’), the proceedings of the Constitutional Convention were not ‘cool’ in any sense of the word, except possibly for the terms of some relationships afterwards. They took place in the summer in Philadelphia (a beautiful city, but not the most pleasant in the summer, especially without air conditioning), and most every day that the Convention met featured at least one hot-tempered debate. (For a fascinating retelling of that summer, read the excellent The Great Rehearsal).

Today in Federalism

2007-10-02T08:17:00.000-04:00

October 2, 1789: George Washington transmits the proposed Constitutional amendments (the Bill of Rights) to the States for ratification.

Another Explanation for Reading the Federalist Papers

2007-10-01T08:15:00.000-04:00

William and Mary | About Us

Yes, I went to a school where we use the third President of the United States as a reference. Draw your own conclusions.

Federalist Paper No. 1 (a brief entry)

2007-09-27T08:18:00.000-04:00

Initially, the most difficult part of reading the Federalist Papers is the language. Antiquated English is not the easiest to wade through, especially not while also contending with such heady stuff as the foundational philosophy of an entirely new form of government, one that is consciously established after ‘reflection and choice’, and not merely the result of ‘accident and force’. That is one of the subtexts of this introduction: ‘My fellow Americans!’ Publius says, ‘we have the opportunity here to choose our own government, not only the members thereof, but also the manner in which we will be governed, for the second time (the first time not having worked out so well)! So let’s make it a good one!’

Others, like George Clinton, Governor of New York, stood to lose too much power and profit if a national government was allowed to function. Hamilton, as a delegate from New York, no doubt had Clinton in mind when he made his sometimes disparaging remarks about the Constitution’s detractors.

However, he does make hint that the next of the Papers will deal with the size of the proposed union, and especially the case that a large and powerful Union is the only way to prevent undue foreign influence- a sensitive subject for a people who had fought to win their independence from a country many had never visited.

So that is more or less the Federalist Paper No. 1: an appeal to the good sense of the People of New York, the admittance that not all who doubted the Constitution were acting out of their own self-interest, but rather for the public good, disgust at and warnings of those who were only self-interested, the thesis of the Federalist Papers, and the preview of the next installment.

Happy Constitution Day!

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Today is the 220th anniversary of the signing of the Constitution. And, serendipitously, my birthday, but we'll let that be. So celebrate! It's not just Monday anymore.

A Short History of the Federalist Papers

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The Federalist Papers are a collection of essays (85 in total so get comfortable) written by Alexander Hamilton, James Madison and John Jay, under the pen name 'Publius' in order to urge the ratification of the proposed Constitution. By the time the first Federalist Paper was published on October 27, 1787, the public debate was already over a month old, and the internal debate at the Constitutional Convention had begun over six months earlier.

Although addressed to the People of New York, the Federalist Papers were republished in other states and used by Federalists to persuade their respective states as well. The Federalist Papers did often need to address current particular concerns, but they followed the overall thesis stated in the first Paper.

Originally sent to amend the Articles of Confederation, the Virginia Delegation (of which Madison was a part), with the aid of like-minded delegates (including Hamilton, delegate from New York), instead proposed replacing the Articles with a new, more centralized government. Members of the smaller states feared they would be overwhelmed by the economic and political power of Virginia and New York, as well as the growing Southern and Western territories, at first refused to discuss a closer union. However, eventually the idea of a federal government- with powers given to both the states and a stronger national government- emerged. This federated form of government was not only a departure from the contemporary government, federalism itself was also a radically different philosophy and style of governance, influenced by the writings of Locke and Hobbes, as well as the still recent Revolutionary War and the events that provoked it. The written Constitution comprised of a combination of their hopes, fears, and best guesses.

(For a history of the Constitutional Convention, read the excellent books The Great Rehearsal and Miracle at Philadelphia. For an explanation of federalism as both a philosophy and a style of governance check out CGS' overview of federalism.)

Not all of the delegates accepted the proposed Constitution and several refused to sign it. These delegates led the charges against ratification.

Although collectively known as the Anti-Federalists, the detractors of the Constitution listed several different complaints. The most common fear was that the executive of the national government would develop into a monarchy, or perhaps combine with the legislature into a tyrannical aristocracy. A Bill of Rights was seen by many (including George Mason, a Convention delegate, and Patrick Henry) as the only way to protect personal rights- essential to a people who had recently fought a war for ‘life, liberty and the pursuit of happiness’, and its absence was a major obstacle to their support. Other objections included the acceptance of slavery into the Constitution- the infamous 3/5ths compromise, whereby slaves were counted towards representation in the House. This was a necessary compromise, as the southern states of South Carolina and Georgia absolutely wouldn’t have joined, but still a rather onerous one. Some felt that the size of the territory of the states would make governing impossible, and that that was the real reason for the failure of the Confederation, but that several smaller Confederacies might succeed.

The result was that not only did Hamilton (and Jay and Madison) have to prove that the Union was a viable form of government and better than the Articles, but that a change from the Articles was necessary. In order to address all of these issues, Hamilton laid out his thesis in 6 parts:

The utility of the Union to your political
prosperity
The insufficiency of the present Confederation to preserve that
Union
The necessity of a government at least equally energetic to the one
proposed, to the attainment of this object
The conformity of the proposed
Constitution to the true principles of republican government
Its analogy to
your own State constitution
and lastly
The additional security
which its adoption will afford to the preservation of that species of
government, to liberty, and to property.

The first three subjects deal with the necessity of a Union, both for survival and the attainment of liberty and are covered in the first 36 Papers. The second three discuss the merits of the proposed Constitution, and make up the remainder of the Papers (37-85

Welcome

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Welcome to We Are Publius, a blog on federalism and citizenship. I plan to have at least semi-regular posting, so please check back for new entries.

The majority of the content here (at least by volume) will focus on a discussion of the Federalist Papers, the defense of the US Constitution by Alexander Hamilton, James Madison and John Jay. This blog was originally intended as a guide to the Papers, exclusively, but there seems to be enough occasional incidents in federalism to justify expanding its purpose.

A word as to why on earth I decided such a project as the Federalist Papers: because they are there. I work with a group called Citizens for Global Solutions. Federalism is a guiding principle of CGS, and the Papers are some of the definitive documents of federalism. Still, I've never read them, and I bet most other people haven't either, and probably for the same reason: all 85, when compiled in a book, number at well over 400 pages, and they are in Colonial-era English, which makes them both beautifully and archaically written, and thus not easily given to pleasure reading.

So here I am, and We Are.

For those of you who are more ambitious/adventurous, the Federalist Papers are posted in PDF format here, grouped by subject. For the truly geeky, you can buy your very own copy of the Papers on Amazon- I use the Signet Classic edition.