There is a long history between ships and nations. Ships to travel over water have been and still are the main and cheapest form of cargo hauling on the planet. With just a bit of wind a sailing vessel can slip over the waves and expend only time and guidance. Before the era of the sail, it was manpower that moved ranks upon ranks of oars, everyone pulling in time to move the ship in the desired direction. Ships are self-contained and the rule on board is their law: none may escape it, all must adhere to it for the good of the ship. These concepts were applied to the idea of Nations early on, as borders define a Nation and its government works to set its course. Various forms of ruling and political discourse would return again and again to 'The Ship of State', which is a Nation. Many would use the 'working together to move the Nation forward' concept of the vast banks of oars, so that individuals knew that no toil, no matter how tedious, was without value. Other Nations would look for forms of 'clear sailing' diplomatically, to avoid contests between Nations or to 'chart a course' around disasters and disagreements.
This sort of imagery lasts with us today, and may last to the end of days, when ships slipping through the vacuum of space will face the same needs and challenges of being in a hostile medium and needing clear guidance and direction. Those born on such vessels, if they are on long voyages, would come to know them as their world, their Nation. So, too, do we born into our Nations come to see a Nation as it is when we are there. A natural consequence is to regard the Nation, like the ship as a solitary well known unit with internal workings that have always been there. It is only when looking at the history of ship building do we come to understand why those views are often misplaced, and how the view of Nation 'as-is' does not reconcile to a time when it was not. Nations do perish, their government and outlook put into history under water and sand and earth. Some die quiet deaths, of people leaving them due to ever changing climate as seen at Babylon and Assyria. Others fall into disarray and prey to any marauders, as was Rome and the Hittites swallowed up by barbarians. Others serenly carry on until something happens that is beyond their power to deal with. Japan was one of those, where the sudden appearance of western ships with cannon announced the end of the Samurai. Likewise Empires in Egypt and China would die and be reborn only to die again due to a host of causes. As with ships the reasons Nations founder are many, and often their ships tell their tale.
When we seek to build a ship, in these modern times, we lay down keel and ribs and then put the skin on her, to make the ship. This, however, was not the only way to make a ship, and ancient Rome had another way that made the skin *first* and fitted the keel and ribs to sustain the outward structure. Both systems work and create ships that can look alike, but their creation comes from different ends of things. When we look at a Nation today we often lose that construction and how the Nation was made. Many Nations are built upon agglomerated Kingdoms and Principalities more or less crafted together by war and diplomacy. When one holds together and gains internal continuity there is a need for more regularized government across diverse areas. That then requires building the structure inside the Nation to support its outward limits. Few Nations are granted the ability to actually lay a keel and ribs *first* and then fit the parts to that so as to have a Nation that is whole.
The United States had the great fortune of being able to do this so as to replace the failing Articles of Confederation which had guided the Nation through the Revolutionary War and into its aftermath of debt. By being Confederated, a larger integration was only loosely performed and the overhead of each State was high: it was that high cost of government and shared Revolutionary War debt that was causing the imprisonment of poor farmers as they ran out of means to pay taxes. Courthouses were lit aflame in many areas by rebellious groups that had believed that the object of liberty was to allow individuals to keep their earnings to use as they saw fit, not to have government remove them entirely via taxation. The United States had caused to form what previous centuries would call a 'peasant revolt' save that this was a Citizen's revolt against their States. It never coalesced into a single entity, but many came very, very close to achieving the arms and numbers to threaten civil government. Extremely close in the case of the Shaysites. That was the atmosphere of 1786 Annapolis Convention that recommended the 1787 Philadephia Convention start finding a way to draft a new form of government. As Jerry Pournelle would point out, this was the era of where the Nation was refered to in the plural amongst the common man: 'The United States of America are...'
The Philadelphia Convention would make that into 'The United States of America is...' one Nation, singular, with multiple States inside. I went over that process in Chapter 4, but it does bear repeating that to give this Nation form via government, we would not be putting a structure inside the existing form, but creating a new form via keel and ribs called the Constitution, and then fitting the States within that structure. Today when born into this ship of the Nation, we take it to be one thing, and while we learn its history we do not get the meaning of why the ship was constructed as it was. We learn the 'how' of battles and outlooks and such, if even in a cursory fashion, but the 'why' part which holds the actual driving forces to construct a Nation we are given short-shrift. Even in the generation or two before mine, stretching back to the intra-WWI to WWII period, that education was not well performed. Names and dates, events of all sorts, and some basics of the driving forces were given, yes. But the detailed look at the nuts and bolts of 'why' a Nation is made like it is, gets little view.
Today the ship sails (or is driven by engines or motors) across the sea and is much more massive, having been expanded again and again on the same basic design with a few changes here and there. That superstructure has remained well built, but the ship, itself was not meant to sail into certain waters: it is no icebreaker and is ill made to face pack ice, nor is it a submarine, made to slip beneath the waves and be unseen and self-contained from all outside influences save pressure and energy supply. The Ship of State has limits by its design, to thwart those that would undermine democracy and republican form of government within a larger federalized system. That said, the ship, itself, is no guarantee and it is only by the activity of those within her that let it run and function safely for all aboard. Nations, too, rely upon those inside them for support and to run the State by adhering to it. Well is that image and link made between ships at sea and Nations.
It is that internal bracing that we call the Constitution that which holds this Ship of State together. That Constitution has its own internal order and structure as well, and draws directly from multiple older pieces of law and outlook: the Admiralty codes dating back to the Black Book of the Admiralty, the Treaty of Westphalia, the culmination work of de Vattel's Law of Nations and Blackstone's Commentaries on the English Law. These works not only pre-date the American Revolution (and the Black Book by some centuries), but were actively talked about and utilized as the founding principles for civilization to be held amongst multiple Nations. de Vattel's views are often brought forth in the Federalist and Anti-Federalist arguments circa 1787-89, to try and understand what this new Nation would be in respect to other Nations. Further the English Common Law was also put into persepective as the things granted by King in England could not be considered as mere 'grants' at the leisure of the King in America. To institute those things, such as trial by jury and habeas corpus, they needed to be made a basic part of the founding understanding of the Nation. With that said the peculiarities of trade and trade law, plus the sovereignty of the Nation over its ships at sea would also require the special Admiralty court concept, in which it is often not possible to get a defendant to show up in court due to their being overseas or having otherwise utilized freedom of movement to escape justice. America would use these outlooks, and institute them to craft a new Nation and institute them in the founding document known as the Constitution.
That singular document is a clean and clear break with many norms of top-down control of a Nation in which rights are granted to subjects. In America the religious persepective of mankind having rights that were granted by the Creator are paramount, and government is instituted amongst men, not ordained from God. Religious tolerance was a hard fought for ideal starting in the 17th century and the Peace of Westphalia, which would allow freedom of worship of the three major Christian sects (Catholicism, Lutheranism, Calvinism) to be unhindered throughout lands that were signatories to that treaty. By strict interpretation of that, however, *other* religious outlooks could and were persecuted even after Westphalia. If the Puritans and Quakers could have found religious acceptance and toleration within their homelands, there would be no need to seek out the New World to find peace. Westphalia started a process of shifting religious rights from the State and making them a God granted right to individuals directly. No intermediary is necessary to grant rights: they reside within the individual and that is self-evident.
That self-evidentiary language, brought forth in the Declaration of Independence, was edited into place by Benjamin Franklin so as to remove a large portion of text that Thomas Jefferson had to cite the Bible. The problem of *which* Bible he would be citing and the interpretation of that was one that Franklin realized could harm the new Nation more than help it. If the Nation starts out with a basis in one, singular sect of a larger religious perspective, then its foundation would be attacked, over time, just as similar had been in Europe. To remedy that the concept of self-evident rights, without regard to any text and only in reference to a Creator, meant that a plurality of views could be taken not only on the religious side, but on the non-religious side. Even in that era there were such individuals who had *also* come to America to escape religious persecution for not having a religious outlook.
Noah Webster would put it in this way with A Citizen of America , from a Federalist perspective:
Of all the memorable eras that have marked the progress of men from the savage state to the refinements of luxury, that which has combined them into society, under a wise system of government, and given form to a nation, has ever been recorded and celebrated as the most important. Legislators have ever been deemed the greatest benefactors of mankind—respected when living, and often deified after their death. Hence the fame of Fohi and Confucius—of Moses, Solon and Lycurgus—of Romulus and Numa—of Alfred, Peter the Great, and Mango Capac; whose names will be celebrated through all ages, for framing and improving constitutions of government, which introduced order into society and secured the benefits of law to millions of the human race.The Bible is, indeed, part of the foundation of the Republic, but it is not the sole source of wisdom nor, indeed, final arbiter of wisdom for the Republic. This is quite heady stuff to see from 1787, yet points to that very diversity in thought, outlook and understanding that America needed to reconcile itself with in regards to where that foundation actually comes from. The outlook on the law comes not only from liturgical texts and outlooks of Christianity, but has basis in non-Christian views of antiquity, also. That building up of civilization is a piece on piece affair that is then cemented together, sometimes well and sometimes less well, over time.
This western world now beholds an era important beyond conception, and which posterity will number with the age of Czar of Muscovy, and with the promulgation of the Jewish laws at Mount Sinai. The names of those men who have digested a system of constitutions for the American empire, will be enrolled with those of Zamolxis and Odin, and celebrated by posterity with the honors which less enlightened nations have paid to the fabled demi-gods of antiquity.
But the origin of the AMERICAN REPUBLIC is distinguished by peculiar circumstances. Other nations have been driven together by fear and necessity—the governments have generally been the result of a single man’s observations; or the offspring of particular interests. IN the formation of our constitution, the wisdom of all ages is collected—the legislators of antiquity are consulted—as well as the opinions and interests of the millions who are concerned. In short, in it an empire of reason.
This shifting of views from that of Europe, for singular religious basis for the Nation is a complex one, but the statement of Rights in the Declaration of Independence, is one that was hard fought for and would not be lost when the Nation first failed as a Confederacy. On the Anti-Federalist side we can see from Luther Martin's Objections to the Constitution, how this was understood at the time in 1787:
The first principle of government is founded on the natural right of individuals, and in perfect equality. Locke, Vattel, Lord Somers, and Dr. Priestly all confirm this principle. This principle of equality, when applied to individuals, is lost in some degree, when he becomes a member of a society, to which it is transferred; and this society, by the name of state or kingdom, is, with respect to others, again on a perfect footing of equality: a right to govern themselves as they please. Nor can any other state, of right, deprive them of this equality. If such a state confederates, it is intended for the good of the whole; and if it again confederates, those rights must be well guarded. Nor can any state demand a surrender of any of those rights; if it can, equality is already destroyed. We must treat as free states with each other upon the same terms of equality that men originally formed themselves into societies. Vattel, Rutherford, and Locke are united in support of the position, that states, as to each other, are in a state of nature.By becoming a member of society some rights are lost to the more common need of society, and it is that reconciliation of power which is held by the individual but of higher need to society as a common right of society, that was played out in the decades before the American Revolution. The Rights held by man cannot be given away, nor stolen, nor surrendered by government or society. These two things would need be crafted together: the self-evident rights of the individual, and the needs of society to protect individuals and utilize some rights common to all so that society would not be put at risk from the individual's actions. By the time the American Revolution started, the framework, between Nations had been worked out via the Black Book of the Admiralty and Law of Nations. Together they would define the exterior sovereignty of the Nation over its trade and the internal rights and accountabilities for what is held in common by a Nation and what is *not*. Many societies would put far more into their National government or even see *it* as the granter of rights, but that dividing line is easily redrawn the other way with individuals having rights and then giving those needed in common as part of a social compact.
That is part of the infrastructure of America that we take for granted today. As a society we rarely talk on the terms of the most basic aspects of society and the individual, because we consider it to be *settled*. What the Constitution does, however, is leaves the majority of power not in government but in society, so that government is granted very little by the individuals who make up the Nation and expected to carry those things out. Here the English Common Law was used as a basis for those very essential rights which were then instituted in the first ten Amendments known as The Bill of Rights. The highest statement of this outlook is given in Amendments IX and X:
Amendment IXThese two Amendments are the most far reaching statements of the rights of individuals ever put down for governing. The first, Amendement IX, ensures that the Constitution does not become a 'laundry list' of Rights, so that if it isn't mentioned you don't get it. This removes that idea from play and clearly says that this Constitution and the few rights granted to Government many not be implied to mean that Government has say over *all* Rights. Those retained by the People, both explicitly and implicitly, cannot be infringed. Amendment X then butresses that by putting forth that the powers not delegated are retained by the States or the People. National government has *no* say over those rights.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Today there is a concerted effort to erode the meaning of these two Amendments, and to hand more power to Federal government than it can legitimately have. Those that put forth a 'strict constructionalist' view of this for the Judicial Branch must come to deal with the fact that such a Branch may not improperly infringe those Rights held by the People. Of interest is the conservative view that there is no 'right of privacy' which was clearly stated by nominee Bork during his hearings. He did cite the faulty language of previous, activist, courts to justify the right to privacy and well said. But implying that the Constitution is a laundry list of rights, is ill founded, as a 'strict constructionalist' would point to Amendment IX and X as being over-riding upon the Federal government. There are very few rights handed to government that may put an individual's right of privacy at peril, and those few areas are limited to those rights granted for the common good of the Nation. Only in those narrow confines, such as warfare, may the government abrogate those rights for demonstrated military need. Yet those powers of the Federal government are put at risk by legislation that is so poorly worded and conceived so as to leave doubt in cases of military need to save lives, to the point where we now have one life lost in this strange era of the rights of the individual over-riding the common good.
Bureaucracies, by nature, are impersonal: they are the parts of a larger system of moving information around in a manner so as to ensure some semblance of continuity in government. Nothing is ever put forward about bureaucrats needing to be: nice, friendly, effective, advocates or to have limited coffee breaks. That is true of bureaucracies in companies as well as in government, but the governmental kind have layers of additional 'oversight' which increases the amount of time spent in accounting for things done, thus decreasing the time in which to do things. Yet it is the self-same bureaucracies that are formed by those wishing to change society from the Legislative side and enacted by the Executive. While 'oversight' increases, actual accountability is diminished by layers of bureaucracy that insulate those doing things from their power structure. It is this dichotomy that plays havoc on the governmental side in all areas: 'oversight' trumps 'accountability'. And your right of redress by government is diminished by that structure in government as you will get little to NO response from Congress or the President on such matters, unless it is via a 'favor' or 'whim' on their behalf.
This idea of adhering to a 'strict constructionalist' stance would actually have some meaning if those pressing for it actually meant it. 'Strict constructionalism' is not limited to the Judiciary alone and, in fact, by pointing to that first we see the very *last* institution that is the backstop of our liberties and freedom. The first place to apply 'strict constructionalism' is where it matters the most: where laws are made. That is not the Judicial or Executive branches, but the Legislative branch. When individuals are heard to moan about 'activist courts' they are not addressing the problem that the laws are being made by 'activist legislators'. That realm of 'activism' has had profound and deep changes in the perception of the public on the role of the government in its lives. It was once understood that the role of the Federal government to be played in the lives of ordinary Americans was limited so as to not overburden the individual and remove their liberty and rights and put those in the hands of over-worked, under-caring bureaucrats.
So, why do we never hear about 'strict constructionalism' being applied to Congressional or Presidential elections? Isn't adhering to the boundaries set by the Constitution just as, if not more, important than the Judiciary? Yet, we do not hear that nor of individuals touting their 'strict constructionalist' outlooks for what they will do in office. As a litmus test it is only applied at the final place of appeal and *not* at the beginning of the process that causes such appeals to be necessary. When you hear any Presidential candidate touting that 'strict constructionalist' judges are their goal, one should ask: what about yourself? Really, the process of creating laws, moving them into place and enforcing them then causes court cases that wind through the justice system for decades until they get heard by the Supreme Court. Anyone serious on 'strict constructionalism' would put that as the prime view for ALL elected offices and critique individuals on what their views of the powers of government *are*. Yet that is rarely heard in the Land of the Free. Instead it is this or that social program or benefit or bribe to a certain sector of the economy and never, not for decades at least and perhaps longer, about the fact that government has little or no place in such things.
Of course those willing to put forward an agenda for society will never do that, as it points out that the agenda, itself, is 'social engineering'. If society needed 'engineers' to craft a better society, government would be the last place we would look as it is only capable of restricting the worst in society, not encouraging the best of it. That simple proposition was heard from the start of America before the Declaration of Independence was written:
Some writers have so confounded society with government,That writer is Thomas Paine and the quote is from Common Sense (via the Gutenberg Project), bolding is mine, unless otherwise noted.
as to leave little or no distinction between them;
whereas they are not only different, but have different origins.
Society is produced by our wants, and government by our wickedness;
the former promotes our POSITIVELY by uniting our affections,
the latter NEGATIVELY by restraining our vices. The one
encourages intercourse, the other creates distinctions.
The first a patron, the last a punisher.
Society, then, constructs government to serve purpose and need when recognizing the very nasty nature of that endeavor. When society tries to make government *sustain* or *make it better*, the goal of society itself is lost in the nature of government itself. Government serves a purpose to restrict activity, and harshly, not to encourage it and make things good for society. The source of good is society, not government, and when one strays from the design and function of government to do other things with it, then that effort has a course set for long term failure. Removing the good of society and investing it to government is destructive of individual liberties, the rights of society to have freedom from government interference, and creates an unaccountable system which then administers things to individuals. The paradigm was stated about the Russian Revolution that the people had exchanged the Czar for the Commissar: unaccountable Nobility to unaccountable bureaucracy.
It is to be regretted that the rich and powerful too often bend the acts of government to their selfish purposes. Distinctions in society will always exist under every just government. Equality of talents, of education, or of wealth can not be produced by human institutions. In the full enjoyment of the gifts of Heaven and the fruits of superior industry, economy, and virtue, every man is equally entitled to protection by law; but when the laws undertake to add to these natural and just advantages artificial distinctions, to grant titles, gratuities, and exclusive privileges, to make the rich richer and the potent more powerful, the humble members of society the farmers, mechanics, and laborers who have neither the time nor the means of securing like favors to themselves, have a right to complain of the injustice of their Government. There are no necessary evils in government. Its evils exist only in its abuses. If it would confine itself to equal protection, and, as Heaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing. In the act before me there seems to be a wide and unnecessary departure from these just principles.Even a few decades past the Revolution, the concept of keeping government accountable to the will of the people was still in-force. Government secures the rights of the people by *not* taking them over and then doling them out as government sees fit. This paradigm of government was a guiding one throughout the 19th century, and endured even to the early 20th. Even as late as 1910, it was seen as the guiding concept:
Nor is our Government to be maintained or our Union preserved by invasions of the rights and powers of the several States. In thus attempting to make our General Government strong we make it weak. Its true strength consists in leaving individuals and States as much as possible to themselves in making itself felt, not in its power, but in its beneficence; not in its control, but in its protection; not in binding the States more closely to the center, but leaving each to move unobstructed in its proper orbit.
Experience should teach us wisdom. Most of the difficulties our Government now encounters and most of the dangers which impend over our Union have sprung from an abandonment of the legitimate objects of Government by our national legislation, and the adoption of such principles as are embodied in this act. Many of our rich men have not been content with equal protection and equal benefits, but have besought us to make them richer by act of Congress. By attempting to gratify their desires we have in the results of our legislation arrayed section against section, interest against interest, and man against man, in a fearful commotion which threatens to shake the foundations of our Union. It is time to pause in our career to review our principles, and if possible revive that devoted patriotism and spirit of compromise which distinguished the sages of the Revolution and the fathers of our Union. If we can not at once, in justice to interests vested under improvident legislation, make our Government what it ought to be, we can at least take a stand against all new grants of monopolies and exclusive privileges, against any prostitution of our Government to the advancement of the few at the expense of the many, and in favor of compromise and gradual reform in our code of laws and system of political economy....
Andrew Jackson in his Bank Veto Message of 10 JUL 1832.
At many stages in the advance of humanity, this conflict between the men who possess more than they have earned and the men who have earned more than they possess is the central condition of progress. In our day it appears as the struggle of freemen to gain and hold the right of self-government as against the special interests, who twist the methods of free government into machinery for defeating the popular will. At every stage, and under all circumstances, the essence of the struggle is to equalize opportunity, destroy privilege, and give to the life and citizenship of every individual the highest possible value both to himself and to the commonwealth. That is nothing new. All I ask in civil life is what you fought for in the Civil War. I ask that civil life be carried on according to the spirit in which the army was carried on. You never get perfect justice, but the effort in handling the army was to bring to the front the men who could do the job. Nobody grudged promotion to Grant, or Sherman, or Thomas, or Sheridan, because they earned it. The only complaint was when a man got promotion which he did not earn.Theodore Roosevelt, New Nationalism speech delivered in Osawatomie, Kansas on August 31, 1910. The Commonwealth, that part which is held in common by society, is not government but is the entirety of the Nation including government. That is, indeed, Nationalism not a rallying cry to more government but to people to rally to their fellow man and the Nation as a whole. That is something that is basic to Americans, and the founding of the Nation, and when government attempts to *do good* by supplying things beyond handing out justice equally, it shows, in its corruption by special interests, how government can be abused.
Practical equality of opportunity for all citizens, when we achieve it, will have two great results. First, every man will have a fair chance to make of himself all that in him lies; to reach the highest point to which his capacities, unassisted by special privilege of his own and unhampered by the special privilege of others, can carry him, and to get for himself and his family substantially what he has earned. Second, equality of opportunity means that the commonwealth will get from every citizen the highest service of which he is capable. No man who carries the burden of the special privileges of another can give to the commonwealth that service to which it is fairly entitled.
A basic part of the structure that we come upon by custom is that promises made should be kept. Legally the concept of promising something and then withdrawing such when another is fulfilling their part of the bargain to get the reward of the promise is not allowed by the concept of estoppel. From die.net, Webster's Revised Unabridged Dictionary (1913):
Estoppel \Es*top"pel\, n. [From Estop.] (Law)If you induce someone to do something by promise and they do so, then one is estopped from not giving what they said would be given. To do otherwise is to make false guarantees and give promises for reward where no intention of giving such reward is actually present. By law that original promise is binding upon completion of said work or conditions. However there are, as we know, many areas of life not ruled by the law, and the promises of politicians seeking votes is a prime one not covered by this. This part of how politics works is one firmly contrary to how we proceed in our daily lives where promises given are to be kept. In politics, promises given are a path to power, not a cause for enacting such promises once power is gained. These two views are strangely at odds in America and have been since its founding: the right to lie is given different view in the public arena than in the private arena.
(a) A stop; an obstruction or bar to one's alleging or
denying a fact contrary to his own previous action,
allegation, or denial; an admission, by words or conduct,
which induces another to purchase rights, against which
the party making such admission can not take a position
inconsistent with the admission.
(b) The agency by which the law excludes evidence to dispute
certain admissions, which the policy of the law treats as
indisputable. --Wharton. --Stephen. --Burrill.
That is a direct reflection of President Jackson's views on how the rich and powerful unduly influence government to get specific interests put in place to benefit them. At that point in history, the National Bank had 25% external ownership and, from that, influence on the economy in a direct form would be swayed at the Bank, itself, and not moderated by government. Even with trustworthy individuals, the potential for abuse and undermining the US economy was too large to be conscionable and the Bank was not renewed: it dissolved. There have been very few times that a government agency or functioning institution has been removed and this was one of those times. From that list (via Wikipedia), almost every single one was moved into a larger organization or its functions subsumed by another organizations (the Interstate Commerce Commission moving to the Surface Transportation Board as an example), but the outright ending of the function of the federal government, once put in place, being *ended* is so rare as to be noteworthy. Remove the War related organizations and that list shrinks even further:
- Agriculture Adjustment Administration - Ruled unconstitutional in 1935.
- Board of Economic Warfare - Abolished by the President, 1943.
- Board of Tea Appeals - Abolished in 1996 by Congress.
- Committee on Public Information - Abolished by the President, 1919.
- Foreign Economic Administration - Abolished by departmental order, 1943.
- Federal Theater Project - Canceled by Congress in the budget, 1939.
- Office of War Information - Ended 1945 by Congress and the President.
- Reconstruction Finance Corporation - Ended by Congress 1948.
- United States Information Agency - Ended new production 1999, continues broadcasting.
- War Production Board - Abolished by the President, 1945.
- Works Progress Administration - Ended by Congress in 1943
It seems that this underpinning was forgotten by the very people who keep on pointing to the Federalist Papers as cause and justification for a federal form of government. No less a light than Alexander Hamilton would cite that importance in Federalist No. 26 on 22 DEC 1787:
"The legislature of the United States will be obliged by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter by a formal vote in the face of their constituents. They are not at liberty to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. As the spirit of party in different degrees must be expected to infect all political bodies there will be, no doubt, persons in the national legislature willing enough to arraign the measures and criminate the views of the majority. The provision for the support of a military force will always be a favorable topic for declamation. As often as the question comes forward, the public attention will be roused and attracted to the subject by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. Independent of parties in the national legislature itself, as often as the period of discussion arrived, the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.While a continuing army was worried about, the entirety of government is also at question with this. At the point where federal form of government serves those in power more than it serves the People, it becomes a danger to freedom and liberty by that continuation of such government. That Hamiltonian view is, actually, highly in accord with the Anti-Federalists and speaks of *their* worries about federal government. In answering them, Alexander Hamilton gives us warning signs of government no longer accountable and beholden to the people. When looking at the army, we also see that it is given *forebearance* to be examined every TWO years while the budget is put forth EVERY year. That budget was to be fought over, tooth and nail, to keep power in the hands of the States and the People by asking *why* government should add things to its structure. That heated battle every other year for the army was to ensure that it could have *some* continuity, year on year.
Schemes to subvert the liberties of a great community require time to mature them for execution. An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. Is it probable that such a combination would exist at all? Is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? Is it presumable that every man the instant he took his seat in the national Senate or House of Representatives would commence a traitor to his constituents and to his country? Can it be supposed that there would not be found one man discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? If such presumptions can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties in order that they may be able to manage their own concerns in person."
That course was set at the founding of America by that structure that was put in place. The recognition of such structure and, indeed, that of all Nations, is that they are voluntary social compacts. By that means individuals and peoples agree on common things between them and set about to govern themselves in that way. We put the Constitution as a first touchstone in America because it is the compact that guides our outlook as a Nation. An outlook that foresaw that government, itself, was an institution to curb our desires against each other and that any government made up of humans would suffer from those same problems as has plagued other governments over time. The attempt to forestall the concentration of power was done via Amendments IX and X so as to remove the ability of government to over-reach beyond those things actually handed to it in the Constitution.
This concept of voluntary associations to have a Nation also works between Nations in this concept known as 'treaties'. As Nation States grew from the Treaty of Westphalia so as to give common governance across religious boundaries and put none at risk, a basic cornerstone of the modern Nation State was set in place by all those that voluntarily accept the strictures of the Treaty of Westphalia. That single shift has now played out for over three centuries and, today, we come up against Nations that do not accept that voluntary compact: they do not separate the common laws within Nation from ecclesiastical or clerical law. Many of these Nations do, however, have some form of religious tolerance, as the Nation of Turkey does, while others do not, such as the Kingdom of Saudi Arabia or the Islamic Republic of Iran. In these latter cases religion is regulated to that of the State and, to greater or lesser degree, individuals must either adhere to that religion, not practice their own or give obeisance to the State religion. Often all three.
This concept of the Westphalian Nation State is one that served as a foundation for Western liberal thinking about the rights of man, his accountability to society and the reciprocity of society to allow individuals to have their own view on things. Without the Westphalian notion of freedom of religion inside Nations, and yet still allowing Nations to have religious identity, the things that we call the Rights of Man would not have come about. To commonly hold basic, civil rights that cross all religions, all religions need to have open and honest discussion amongst their sects and with the common folk who may or may not adhere to any of the religions in practice. A recognition of the separateness of the Nation State from religious enforcement started a path away from the tight binding of religion to Nation. While many in the modern US may decry that this is a 'Christian Nation' and that the founders were 'Christians' that is only a broad generalization of the wide diversity of views held not only amongst Christians today but at the Founding Era. Indeed, disparagement between religious sects was a feature of that founding time, and the invective weighed by various founders against other formulations of Christianity was quite strong, including such views applied to other founders. To try and make them all, blandly, to be something that modern Christians see as 'Christian' is an insult to those founders, who strenuously disagreed amongst *themselves* on that topic and an insult to the Nation founded on the strength of diversity with no single group ruling over everyone. Their diversity of views on the impact and meaning of Christ to themselves and the world varied so greatly as to be unrecognizable, as a whole, to those wishing easy categorization. Christians, by and large, but not wholly and completely, and there were others like Benjamin Franklin whose views would remain separate from that of other designations as he thought upon the matter. The diversity of religion and acceptance of commonality as necessary is not a feature of modern church/state divides, but dates back to before the founding of the US.
That founding time featured, in the Constitution, something that allowed for that diversity to take place: No restriction on State Constitutions with regards to religion were put in place at the Federal level. So long as the rights of the people as a whole were not infringed, any State could and did have religious alignment. Every State Constitution features religion in its structure, often quite partisan in nature towards a certain sect, and yet the understanding is that all laws based in that State must be regular to the Nation as a whole. It is this, little understood, concept of the States having individual sovreignty within the compact that those pushing for National naming of the US as a Christian Nation do not understand: the Constitution prevents any say for the Nation on the religion of the Nation as a whole, leaving it up to the States and the People to work that out on their own. By setting the Federal into the common arena, that must be open to everyone without respect to religion, it must be unbiased save to protect *all* religions. While that is often honored in the breach, the diversity of American religious life from the founding to this modern era is beyond that of any other Nation on Earth. No peoples are so diverse in their beliefs, and devoutly so, than Americans. That richness and depth of affiliation is done under the protection of all religions to the disparagement of none. This concept is known as: respect of religious diversity, not disparagement of all religions which many seem to think it comes down to.
Nation States, then, allow treaties to become more than just agreements and will often make them into standing law that becomes foundational not only to their legal systems but to the Nation as a whole. Without the Treaty of Westphalia, we see the era of diverse Christianity played out in the era of modern and diverse Islam without such restraints. Those groups and organizations that perceive the will of Allah to be over-riding to all things mankind makes and that all works and Nations must adhere to that, allows them to create religious strife of the type known in the 30 Years War prior to 1648 and Westphalia. If seen as the nascent start of diverse religious conflict as similar the struggle between Roman Catholics, Lutherans and Calvinists was prior to 1648, then the cause for concern is great as there is no over-riding main power in Islam as there was in Christianity, in the form of the Roman Catholic church. Indeed, Islam is very much a 'make it up as you go along using holy views as a guideline' concept of religion, and the Koran is only considered *a* source document and, to many in the divergent forms of Islam, not even *the* source document. Mohommed taught in many places over his life and his teachings were recorded locally, so his sayings as a young man and those of a middle aged man have wide disparity of life experience behind them. Many of the sects of Islam, like the Alawites in Syria, utilize those 'special teachings' separate from the Koran as more guiding to their views than the main body of Islam or its major branches.
To us this is vexing because the Nations involved are not Westphalian in Nature: the commonality of societal view outside the particulars of religious outlook do not hold sway in many of the Nations with large Muslim populations. This concept is called secularism when it rejects all view of religion from the common life, but secularism, itself, has also been made accomodationist so that basic respect for belief can be had by government and not to disparage all. Secularism is not, of necessity, atheism, but a profound belief that religion or anti-religion is profoundly divisive to the common culture and that individuals are best left up to themselves to find their own, best answers in life without threatening any part of society in that doing. The touchstone to good laws and treaties, is the non-disparagement and infringement of religion as a concept, and while religion serves as a major (and indeed overwhelming guide) to how treatis and laws are made, the instantiation of those beliefs must be to uphold the common beliefs and rights of all in a Nation. These hard questions took decades to work out, and by the time a century had passed a basic framework for how Nations can do this externally, one to the other, had been created and strong views on how this must work internally were also coming about.
Those that came to America to escape religious oppression and find peace in their beliefs brought those understandings with them, not only from England and the English Common Law system, but from other Nations across Europe and even parts of the Near East and Africa. While not set in stone, the rules for how Nations are to behave had been made and thought about by legal scholars for some two decades before the fateful year of 1776, and those ideas had come to this new land and were adopted as they were a way to codify the existing understanding of what a Nation is and how it works with regards to other Nations. Existing law outlooks that had been combined in the Black Book of the Admiralty, had served as one basis for that international understanding.
That book served as one of the first multi-lingual texts to help regularize trade law over the common seas and the responsibility of each Nation in that regard. Nearly as old as Westphalia, the Black Book is still used, today, as the basis of international shipping. In many novels the ability of a Captain to marry a couple at sea is always pointed to, but it exists because the vessel, itself, is an extension of its flag Nation: a ship remains a part of the Nation and has the freedoms of the high seas so long as it is in contact with the high seas. That comes from the Roman Imperial Trade laws that were used in constructing new laws after the Empire receded. And that remains a part of how ships operate to this day. Save for the disparity of equipment on board a ship today, and the more mild treatment of sailors due to changes in civil law, a captain of a vessel in any era from the 10th century could be placed in charge of a vessel today and understand the basics of what can and cannot be done at sea. Getting across that this has been extended to the edge of the atmosphere and to the core of the planet might be a bit harder to do, but the conceptual framework is exactly the same, save for navigation differences.
America did not have to *invent* that as it existed before the founding and the US traces its lineage far back into English history to gain the widest possible leeway in our utilization of the high seas as is possible. We also see that as the right of *any* Nation to do the same. These views on what to do with things that were truly common to everyone played a large role in how to start shifting the basis of Nation State from religion to common governance. While things like Embassies and Ambassadors go all the way back to the beginning of recorded history, the views on why they are sacrosanct and how they are treated has shifted from the time of Achaean Greece to the era of the founding of the US. When the religous basis for warfare was removed by Westphalia, save in *protecting* the practice of religion from oppression and warfare, the non-religious reasons for conflict needed to be addressed. And as they were Nation-based, it would require an understanding of what Nations *are* outside the religous context. Sovreignty, then, passed from Annointed Royalty to Nation State: one may still have royalty seen as being divinely annointed, but the instance of the Nation State as the mortal realm container of peoples is the form that rulership must take. God may Annoint, but the mortal realm is stuck to its own devices and as civilized peoples have put aside religious animosity in favor of finding common ground outside of religion and respecting religious diversity then those teachings must be purveyed so as to not endanger the common realm. When States were allowed to set religion for their people, the death toll was enormous and never-ending until that could be put aside. Those that favor this conception to put religion back in charge of Nations so as to export that belief by intimidation, force of arms or outright killing are acting in an uncivilized manner and breaking the common peace.
The century or so after Westphalia and the emergence of trade to the New World started in the first era of large scale economic expansion seen since the fall of the Roman Empire, and that expansion continues unabated to this day. Those initial rule sets were slowly brought together so that the Treaty of Westphalia and Black Book of the Admiralty could begin to define just what this thing known as 'Nation' is and what it could and could not do. Assembling this required looking at the known forms of government that included Monarchies, Oligarchies, Republics and even religiously led states. Between all of them there needed to be an understanding of what the responsibilities of Nations are, how they interact with each other and what the 'rules of the road' were. Any Nation standing up could have this voluntary set of guidelines to know exactly how the rest of the Nations viewed them, and what such a Nation could expect for certain events. Ancient ideas of Embassies, Trade, Warfare and the responsibilities of the Nation in each realm were understood and put together in the work of de Vattel called: Law of Nations. This became the outline of how a Nation State, in general, would operate and what was expected of it externally and what citizens needed to do internally to respect other Nations and peoples.
The Law of Nations could not be enforced from the outside: to adhere to it a Nation must adhere to its principles, state them and put forth laws and procedures in accordance with its strictures. It is a voluntary set of guidelines for the civilized behavior of Nations with regards to each other in peace and war, and how proper recognition is to be given Nation to Nation. This work is one of the prime examples of the age of thought on Nation States as it goes through, in exacting detail, the entire set of possibilities that can arise between Nations both in the normal course of affairs and the irregularities in affairs. Just on warfare, alone, it gives the categorization of legitimate warfare (that done by Nations) and illegitimate (that done by non-Nation actors), and then goes into extreme detail of how Nations are to comport themselves, what their obligations and duties are, and what the historical background on certain instances are that have become accepted in the Westphalian tradition. It is nearly impossible to 'pick and choose' in Law of Nations, to only accept *this part* but not *that part* as the influences of each area to others makes them interdependent. After 1758 this would be referred to via the common acceptance as a lower case 'law of nations' put forward as the rights and responsibilities of Nations and how they were viewed in trade, diplomacy, interactions and warfare. The US Constitution, however, gives it explicit and capitalized refernce in Article I, Section 8:
To constitute Tribunals inferior to the supreme Court;This is the Congressional power to make laws based on the Law of Nations, not only for warfare, piracy and such, but the structure of the concept itself puts forward the entire panoply of those powers intra-nation that Congress has oversight on to make laws. As a Republic, however, the President gets other authority under the Law of Nations, which is explicitly pointed out by the work itself for the variation of Republics within the framework. Its mention fits between the creation of lesser courts and the full war declaring ability, which is appropriate for the types of offences that can happen that are neither wholly National nor International in scope, and yet happen within the Nation. As a Republic the external powers of the Nation are vested in the President, and those cannot be stepped into by Congress as the nature of a President is to have those powers for the Nation. That segue into the War declaration powers and the Rules Concerning Captures on Land and Water are a result of the Republic handing the rule making, sustainment and supply of the armed forces to Congress, but the actual use of those forces to the President. On both land and water, when the armed forces are at war, the laws of warfare, as given by the Law of Nations applies, as defined by Congress. Implementing and utilizing them are up to the President, along with those powers granted to the President as the Executive of the United States.
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
The actual implementation of the laws provided by Congress and carried out by the Executive is done in the basic accordance the US gained as English colonies, via the English system of Common Law. The US would carry on that system and, to this day, when no law is adequately described in the US and there is pre-Revolutionary Common Law that gives guidance for those actions, it is that Common Law that we utilize. The English Common Law system was also described and reconciled to the Law of Nations by William Blackstone, who conducted multiple legal seminars on the topic of English Common Law and brought those together in a multivolume set of Commenaries. Blackstone's Commentaries on the English Law became a major work and guiding point that helped to codify much of the written law of England and give its outlook and guidance. This outlook was developed from a system that worked in the exact opposite to a Constitutional one: like a ship its outer form was created and the laws internal were then made and changed to adapt to that outer form. Great Britain is a Nation without Constitution, but with long standing tradition on law and the responsibilities of Nation to citizen and citizen to Nation.
England's source of laws are multivariate, deriving from native popular practice before the invasion of Rome, Roman law and its remnants after the Roman Empire receded, Nordic views on common law and the concept that even Royalty are accountable to it (being established before 1066), and the interplay of those with other Nations via trade in the Black Book. The basic rights of individuals to get fair hearing, have their say, and have a jury of their peers in accordance to acknowledged law are those things that are seen as the basis of common law. This distributed, adaptable system of law allowed for National laws to be enforced by local authority and custom, and created such artifacts as the 'common man', who would be utilized in the law system for the average person and how they would be expected to react in a given situation with the knowledge (or lack thereof) of the law. This internal fusion of systems along with the concept of 'recording trials for review' are all things that Americans lobbied for in the Bill of Rights so that the traditional views of the rights of individuals to have freedom from government were put in writing. The creation of a Constitution that instantiated these rights via explicit statement, also carried the law that created those rights with them. Blackstone's Commentaries, then, become the full view of how citizens of England are to act with regards to each other and the Nation and the Common Law system's view comes with it. The one thing the Constitution did that England had not done, was to shift the Admiralty law into the Common Law realm and utilize the means of recording trials which was not being done in England at that time. This shift, however, also moved the naval military views of capture and payment entirely into the civil law system and removed those outlooks from the Navy as there was no Admiralty Lords, just an Admiralty jurisdiction. The President, as highest overseer of the Navy becomes the source for the Admiralty jurisdiction, but the ruling of the actual Navy's court system on such matters has not been implemented by Congress, which prefers the civil system for such things.
These major pieces of how to create a Nation are embedded in the Constitution by direct citation (Law of Nations), naming of jurisdiction and who presides over it (Black Book of the Admiralty) for the Admiralty jurisdiction), structural separation of religion from the Nation as a whole, but not from its constituent States (Treaty of Westphalia), and via explicit enumeration of rights of the individual bringing in the background Common Law of England (described by Blackstone's Commentaries on English Law). Each and every single one of these is currently under attack by those wishing to undermine the Nation State .
Indeed we hear many in Europe talking about a 'post-Westphalian Nation State' concept, but they never do explain what that *is* nor what it *does*. Unlike the 18th century writers and thinkers, these modern ones are just not up to the task of allowing for a system where religion is held separate and yet still given wide purview. As a way to respond to non-Westphalian Nations in the old mold of ones guided by religion, this puts at peril the very concept of allowing individuals to have religion separate from the State at risk. Invalidating *that* moves the world backwards to an era of religious warfare and sizeable portions of the population dead, save that it would be on a global basis in the modern world.
When these moderns try to put forward a Transnational basis of governance above and over Nation States, they put the commonality of transport at risk over the sea and air, by making Transnational bodies that are accountable to NO constituency in power on those matters. They also put forward that Nations do not need rights to protect their peoples, and that a Transnational system of governance will do that... of course these same individuals never tell you *how* that will be done, just that some appointed figures will do it. This is not a step forward for peoples, but one backwards towards Imperial times, where unaccountable rulers would dictate their wishes to the people and have them enforced. Indeed, many such are more than willing to have localized police and armies carry out such things on their own people, or be used as pawns against other peoples in such arrangements.
And as local governments would be deligitimized in favor of Transnational institutions, those larger institutions would dictate to Nations what they are to do in all realms. There is NO accountability of the rulers to the ruled in this system of conception, and removes the entire concept of reciprocity between Nations as a guiding one for Nations and their peoples. By having unelected, unaccountable *chosen* individuals to rule (be they religious, left or right), such institutions will enforce views because the ability of Nation States to manage their own affairs has become too complex and a simpler system is "necessary". An individual would have no inherent rights, save those granted by their birth and poisition at birth with regards to race, gender, religion and ethnicity. This is a system called by many names, but comes down to: Feudalism at best and Slavery at worse.
It is very strange, in this modern world, to have those on either 'side' of the ideological divide put forward things that are at odds with the Contitutional concept of government and the reciporicity of Nations to each other. When one hears of 'Global Human Rights', they ignore that such lofty language is only instanced in treaty, and is absolutely restricted to those Nations that sign such and only applies to those in a Nation via legal means. That is also done in regards to the 'Labor Market', and with similar outlook: ignore Nations and just let industries figure out what they need in the way of labor and *not* be held accountable to any Nation. If one hands NGOs or Industries or *both* these powers by just giving them away, the ability of a Nation to govern itself and have that governance be respected is diminished. That is a direct attack on the concept not just of a single Nation, but the entire system of Nation States that has grown up over centuries.
Theodore Roosevelt in his autobiography would comment on Woodrow Wilson's idea of 'New Freedoms' that would serve as the underpinning for modern Transnationalism:
There is much more that Mr. Wilson says as to which I do not understand him clearly, and where I condemn what I do understand. In economic matters the course he advocates as part of the "New Freedom" simply means the old, old "freedom" of leaving the individual strong man at liberty, unchecked by common action, to prey on the weak and the helpless. The "New Freedom" in the abstract seems to be the freedom of the big to devour the little. In the concrete I may add that Mr. Wilson's misrepresentations of what I have said seem to indicate that he regards the new freedom as freedom from all obligation to obey the Ninth Commandment.Of course Theodore Roosevelt believed that the common man did have self-guidance with help from God and have concrete responsibilities to himself, his family and his Nation. Because it is the People of America that are the crew of the mighty vessel it has become. It is most unfortunate that a number of individuals are trying to remove the keel and ribs and purport that the shell, itself will float much better, as soon as a few holes are punched in it.
But, after all, my views or the principles of the Progressive party are of much less importance now than the purposes of Mr. Wilson. These are wrapped in impenetrable mystery. His speeches and writings serve but to make them more obscure. If these attempts to refute his misrepresentation of my attitude towards the trusts should result in making his own clear, then this discussion will have borne fruits of substantial value to the country. If Mr. Wilson has any plan of his own for dealing with the trusts, it is to suppress all great industrial organizations—presumably on the principle proclaimed by his Secretary of State four years ago, that every corporation which produced more than a certain percentage of a given commodity—I think the amount specified was twenty-five per cent—no matter how valuable its service, should be suppressed. The simple fact is that such a plan is futile. In operation it would do far more damage than it could remedy. The Progressive plan would give the people full control of, and in masterful fashion prevent all wrongdoing by, the trusts, while utilizing for the public welfare every industrial energy and ability that operates to swell abundance, while obeying strictly the moral law and the law of the land. Mr. Wilson's plan would ultimately benefit the trusts and would permanently damage nobody but the people. For example, one of the steel corporations which has been guilty of the worst practices towards its employees is the Colorado Fuel and Iron Company. Mr. Wilson and Mr. Bryan's plan would, if successful, merely mean permitting four such companies, absolutely uncontrolled, to monopolize every big industry in the country. To talk of such an accomplishment as being "The New Freedom" is enough to make the term one of contemptuous derision.
A pity that most of the crew is on deck sun bathing.