Untried Weapons – Repairing The Tattered Remains Of A Constitution That Has Not Been Tried And Found Wanting, But That Has Been Found Difficult; And Left Untried (Part 4) – Guest Essayist: David Eastman
This essay continues a series exploring briefly why the Constitution is ineffective at restraining federal officials today, and illustrates how members of the present generation must come to view their relationship to the Constitution if it is to be of service in effectively responding to federal overreach. The series will conclude by highlighting two largely untried and fundamentally different approaches to restoring constitutional constraints; issue-based legislative accountability, and a convention of states to amend the US Constitution.
The Constitution and the Permissive Public
In the Federalist Papers, Alexander Hamilton made the rather unremarkable observation that “…nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society.” For an example, he drew from antiquity the case of Sparta’s highly decorated admiral, Lysander, in the Peloponnesian War. Term limits in Sparta required that Lysander resign as admiral at the end of his one year term of office and that no person could hold the office of admiral a second time. Yet when Sparta suffered a naval defeat, Lysander was soon called upon to lead the Spartan Navy once more in battle. Hamilton noted “how unequal parchment provisions are to a struggle with public necessity.” To paraphrase; it isn’t a fair fight. When constitutional limitations are paired against public necessity in the boxing ring, it’s like trying to take on an opponent whose weight class is three classes higher than yours. Sure, you may get a few punches in. You may even secure a few concessions from your opponent in the process. But in the end, constitutional limitations will inevitably succumb to perceptions of public necessity.
In our own Constitution, in Article I, Section 8, Congress is granted power “to raise and support Armies” and “to provide and maintain a Navy”. No provision is given for Congress to provide and maintain an Air Force. And yet, if there was ever a cry against Congress providing us with an Air Force in 1947, it has been lost to history—drowned out by the perception that having an Air Force is a public necessity. Even that timeless opponent of federal overreach, Thomas Jefferson, found good reasons to overreach the barrier of the Constitution as president:
“A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation…An officer is bound to obey orders; yet he would be a bad one who should do it in cases for which they were not intended, and which involved the most important consequences. The line of discrimination between cases may be difficult; but the good officer is bound to draw it at his own peril, and throw himself on the justice of his country and the rectitude of his motives.” (President Thomas Jefferson in a letter to John B Colvin; September 20, 1810)
Presidents—indeed officials at all levels of government—have been throwing themselves on the justice of the country from the earliest days of the union. Had Jefferson been punctilious, he would not have made the Louisiana Purchase from Napoleon. Had Andrew Jackson been punctilious he would not have circumvented both Congress and the Louisiana Legislature in declaring martial law in New Orleans, later arguing “at such a moment, that constitutional forms should be suspended for the preservation of constitutional rights”. Indeed, we would have neither the Declaration of Independence nor the Constitution if delegates to the Continental Congress and the Constitutional Convention had not “acquiesce[d] in the necessity” of circumstances that involved the most important consequences to the nation.
While apologists and media spokesmen will always be available to spin a story on behalf of those in power, and the cases above were no exception, I choose to highlight Jefferson and Jackson because both men readily admitted the questionable nature of their decisions in light of the Constitution. Was this a violation of their oath to defend it? In one sense, it was. But in another, it was in keeping with, and arguably inspired by, fidelity to that oath. In “Restoring the Constitution”, James Ceaser makes the case that those who would defend the Constitution today must first distinguish what a Constitution is and what it is meant to do from all the muddled thinking that surrounds the topic today. A constitution is law, but it is more than a legal instrument. It is also a political document. As John Marini argues in “Abandoning the Constitution”, it “is an attempt to spell out the conditions of just and reasonable government”, and an imperfect one at that. In keeping with Jefferson, no matter how unfavorable the circumstances happen to be, true fidelity to the Constitution could never embrace treating the Constitution as though it were a suicide pact.
In short, as the Framers understood it, true adherence to the Constitution can never become fanatical. While extremely important, and needing much more attention than it is given today, it can never be the one principle by which all other political activity is to be judged. As Bonhoeffer observed from a Nazi prison cell, “The fanatic thinks that his single-minded principles qualify him to do battle with the powers of evil; but like a bull he rushes at the red cloak instead of the person who is holding it; he exhausts himself and is beaten. He gets entangled in non-essentials and falls into the trap set by cleverer people.” In the end, the justice of the country saw fit to reward Jefferson with a second term and to elevate General Jackson to the presidency. It did not however accept the argument of necessity from all of our nation’s early presidents. Our second president, John Adams, argued that the Alien and Sedition Acts were likewise necessary to the security of the nation in avoiding war with France. Like Jefferson, he threw himself upon the justice of the country, and was booted from office, along with his party.
David Eastman is a graduate of West Point and a former Captain in the US Army. He has served at all levels of US government; city, county, borough, state and federal, and in each case was obliged to take an oath to support and defend the U.S. Constitution; He is a co-founder of Tax Our Kids, which advocates for sustainable government spending on behalf of future generations of Alaskans. He lives with his family in Wasilla, Alaska.
 Alexander Hamilton, “Federalist 25: The Same Subject Continued (The Powers Necessary to the Common Defense Further Considered)”, December 21, 1787.
 “We must, therefore, acquiesce in the necessity…We, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions…” (The Declaration of Independence)
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The large violations may not be easy to see when violated, but in time they can be corrected when a crisis passes. The small, incremental violations, over long periods of time, are cumulative & difficult to see clearly until decades later, after which time many have become so assimilated into our culture that they become almost impossible to change, even if they clearly represent an overreach by a President (e.g., Czars and agency powers), the Congress (e.g., Pork), or the Judiciary (e.g., abortion).
For clarity, the U.S. Air Force did come into existence as a corps within the U.S. Army Air Corps such as in WWII. It was later split as an independent unit. Inventions of new weapons were not precluded by the federal constitution. During the Revolutionary War (no constitution yet), General G. Washington authorized the deployment of the Turtle submarine in an attempt to destroy British warships. The Civil War saw the first use in war or introduction of revolvers, repeating rifles and Gatling guns, grenades, rockets, and the use of aerial balloons that had a dedicated corps for reconnaissance. The Air Force is simply a restructuring of the Army of an air corps that instead has a direct chain of command with the Secretary of Defense. Does changing the chain of command of an army corps suddenly become an unconstitutional operation? What is in the constitution; however, in A1 S8 C12 is the Army Appropriations Two Year Term clause. The present practice of recruiting new volunteers in the Army, or Air Force for that matter, is to contract an eight year enlistment term, contrary to A1 S8 C12. Congress gets around the two year appropriations term for the army by simply authorizing military defense appropriations faithfully every year. But the constitution is clear that there is not to be a standing army even in a present world where we have 100’s of military bases overseas left over from WWII.
As David Eastman’s article here: there is a vigilance called for to question when something constitutional in origin may cross constitutional lines. A2 S2 C1 Commander in Chief when Called into Service clause had all intents & purposes that POTUS would play the role of a field marshal in declared war. If you read the clause right, there is no chain of command to the POTUS until called into service to do so. Armies and Militias were to operate in independent self defense; but POTUS has become a 24/7 tactical officer of midnight drone raids without a declaration of war.