A Few Concerns About Your Responses to 'Vox Populi'
Tuesday, March 6, 2007
by G. Christopher ("Chris") Minch
Dear Mr. Berg-Andersson:
I am a long-time user of 'The Green Papers' and I want you to know I very much like your site; I also usually enjoy reading your pieces- your Commentaries, as well as your responses to the various 'vox Populi' sent in by readers.
Yes, your writing style does force me to work at it quite a bit but I certainly don't have the negative reaction of, say, a Mr. Dunn-- I guess I feel much more like a Mr. Perry as I peruse your writings.
Having said all this, I do have a few concerns about that which you have written (in responses of yours to 'vox Populi') most recently:
1. I really didn't discern any real disagreement between you and Mr. Smith (other than the fact that he might have acted as if you knew very little about the Declaration of Independence which, from what I can see, is unfair for him to have said): you were certainly right in your opinion that he himself clearly wasn't at all advocating a Christian Nation (and I agree that such a concept is, because of lack of clear definition, in the eye of the beholder), yet what is so wrong about acknowledging that- as he said, "Many of the Founding Fathers were God-fearing Christian men" and that, therefore, "they sought God to give them insight and direction in their leadership": thus, the conception of Liberty we enjoy in this country to this day flows directly from their own convictions as regards Christianity?
2. In your response to Mr. Stremsky back on 15 February, you wrote the following:
Each State's Militia was (and this is admittedly a rather simplified outline of the typical set-up) made up of the "organized militia"- made up of basic military units (more or less functioning as "companies" and usually commanded by a Captain)... and the "unorganized militia", made up of able-bodied men of eligible age (generally 18 years old through 45 years old) who possessed a "good musket" or, later, at least a hunting rifle and who were not part of the "organized militia" units created in their own community.
You then went on to note that the earliest Federal legislation involving the "nationalizing", if you will, of the militias of the states mandated that the "organized militia" in each State be formally renamed "the National Guard" and that this National Guard be organized and armed in the exact same way as the regular Army. Interestingly,... all subsequent Congressional statutes related to the National Guard (such "National Guard Acts" have made up a separate section of larger "National Defense Acts" passed by Congress over the ensuing years) maintained the existence of the "unorganized militia": thus, despite the creation and continued existence of the National Guard, a "citizens' militia" of able-bodied gunowners technically still exists in each State.
How, then, is this really any different from the contentions of the so-called "Militia Movement", most famous about a decade ago for claiming their own ability to form organized militia units with little, if any, governmental oversight?
How, then, might one readily discern the difference between a person's "Rights" and that same person's "privileges"?
The test is, basically, this: if government can constitutionally- by law (whether statute or ordinance, rule or regulation)- stop you from doing something, it is a "privilege" and not a "Right"; if, on the other hand, a person can legally assert his/her(/its) own claim to be allowed to do something against the government's attempt to prevent that person from so doing, it is a "Right" and not a "privilege"...
Clearly, this is not an objective standard by any means!
While I agree with you that [p]ut admittedly simply: one's "Rights" are more "secured" (protected) by government than one's "privileges" , wouldn't so differentiating between Rights and privileges be just as much political as it might be constitutional?
4. In your 4 March response to Mr. Stremsky- in which, it seems to me, you two are having a political disagreement over a constitutional interpretation- you wrote the following as a parenthetical statement:
smoking- ANYwhere!- is, in and of itself, not at all covered by the 9th Amendment because smoking is a privilege and not a Right: "others retained by the People" means 'other Rights', not 'other "privileges".
But wouldn't a Right to Privacy be one of those "other" Rights "retained by the people" that are never to be "den[ied] or disparage[d]" under the terms of the 9th Amendment? If so, wouldn't smoking legally obtained tobacco products in one's own home then be covered by the 9th Amendment?
I look forward to you possibly taking the time to address at least some of my concerns.
In the meantime, thank you for such a wonderful site. I quite easily find all sorts of current, and even historical, political and governmental information that is either hard to find in one place or even can't be found anywhere else at all.
You've obviously put quite a lot of work into 'The Green Papers'!
G. Christopher ("Chris") Minch
Mr. Berg-Andersson responds:
First of all, thank you very much, Mr. Minch, for all your kind words about our website and please know they are most appreciated.
Yes, we have put a lot of work into 'The Green Papers'- more than 7 1/2 years worth now, in fact! And I would be most remiss if I here failed to acknowledge the vast contribution to what one sees on this site by Mr. Roza, the site's Webmaster (a contribution, in truth, much more important to the ability of the user to so use 'The Green Papers' than my own); therefore, I trust that the "you" and "your" within your words of praise at both the start and end of your 'vox Populi', Mr. Minch, was, in fact, intended to be in the plural!
Now, on to Mr. Minch's "concerns" about which he has written above:
I will leave his 2. for last, since my response to that will be the most involved. I will start by addressing his 1., his 3. and his 4. (if only because my so addressing these will take up far less space than my response to his 2.)
As to his 1.-- I have, as I believe I noted in my response to Mr. Smith, no problem whatsoever acknowledging the fact that the Founders of our Nation were, indeed, Christians (not only that, but white Christian men): this, after all, is an historical fact! I also have no problem acknowledging that these same Founders' conceptions of Liberty were influenced by, as Mr. Minch himself put it, "their own convictions as regards Christianity".
But there is more than a shade of difference between 'acknowledgement' and 'emphasis'. As I pointed out in my response to Mr. Smith, Jews, among other non-Christians, also believe in Liberty (again, Passover is often referred to as "the Festival of Freedom"): thus, a modern American Jew's conception of Liberty, or so I would think, would be most influenced by- to borrow Mr. Minch's formulation- 'their own convictions as regards Judaism'!
Therefore, using this very example, why then even bother to emphasize Christianity over against Judaism when one is discussing 'Liberty' in the context of contemporary America?
For it is wholly unnecessary for one to proclaim "Liberty for all, Christian and non-Christian alike- but, at one and the same time, it must be emphasized to all (regardless of religious Faith or, for that matter, lack thereof) that their Liberty is to only be understood as solely deriving from a Christian concept of same" unless one is, indeed, most earnestly trying to promote Christianity (of whatever amongst it many variations as to denomination, sect or even cult) as the only valid interpretational prism through which to view said Liberty (which would, by the way, be my simplest- whilst admittedly also simplistic- definition of one suggesting that the United States of America was intended- by its very Framers- to be a Christian Nation).
As I wrote to Mr. Smith in my response:
Freedom is, in fact, a key component of any number of religions, denominations within religions and sects within denominations: thus, no religion- not even the Christianity which is predominant here in the United States- has a monopoly on an ethic of Freedom.
Since Mr. Smith himself wrote, of the Founding Fathers, "[d]id they want everyone to be Christians? No. Did they want people to have the freedom to worship who and what they wanted to, or nothing at all? Yes" then I would have to presume he would not at all disagree with the statement of mine I have just quoted. And, if Mr. Smith does so agree with me, then his follow-up sentence, to the effect that "Freedom is a key component of Christianity", while true, becomes wholly irrelevant to the application of Freedom, in and of itself, within the American polity.
Freedom is Freedom, Liberty is Liberty... pure and simple...
and, if so, it matters not from just which spiritual or philosophical ethos one's own conception of Liberty today might be derived! At least not in a country evidently dedicated to the proposition (among many other propositions) that Religion be freely exercised or, to use Mr. Smith's own formulation, the notion of 'people [having] the freedom to worship who and what they wanted to, or nothing at all'.
As for Mr. Minch's 3.-- he's right: the test I put forth for determining whether something is a Right or a privilege is not at all objective a standard. But I never intended it to be!
I am well aware that person A might say: 'the State cannot (or, at least should not) be able to- by law- prevent me from doing X' (thus, freedom to do 'X' is, to person A, a constitutional Right) to which person B can then say: 'but the State can (and, indeed, should) prevent person A from doing X' (meaning that, to person B, the legality of 'X' is merely a privilege granted by the State which can then be restricted or even prohibited by that same State) and that this, then, is a political argument as much, if not more, than a constitutional one.
However, that was my very point! It's precisely why I used my smoking friends and acquaintances who still claim a "right to smoke" as an example of persons thinking contrary to my own contention that smoking is a privilege and not at all a Right (for the reasons I have already stated, most recently in my two recent responses to Mr. Stremsky).
Which leads directly to what Mr. Minch wrote as he first presented his 4.
Clearly Mr. Stremsky believes that smoking in restaurants is constitutionally protected, while I do not-- so, yes, it is "a political disagreement over a constitutional interpretation"; yet that is the very essence of any disagreement between one who thinks a particular law (whether one happens to agree with it or not) can be constitutionally adopted and another who thinks that a Constitution prevents that same law from ever being adopted, let alone enforced. We're still back to, as I wrote in my first response to Mr. Stremsky, if you have more votes than they do, you win; if they have more votes than you do, they win which I went on to opine was the very essence of Politics within Republican Democracy.
As to the gist of Mr. Minch's 4. itself--
when I wrote of "smoking, in and of itself" not gaining 9th Amendment protection, I meant what might better be perceived via the following example:
if one says "I have the right to smoke in my own home because I have a right to smoke... period... anywhere [even in restaurants and bars, even in my office cubicle, even in a bus or train station]- thus, since I can smoke anywhere, I can certainly smoke in my own home!", then one is flat-out wrong---
if, however, one says "I have the right to smoke in my own home because the Right to Privacy (assuming this to, indeed, be a right "retained by the People" through the 9th Amendment even though not specifically stated in the Constitution) allows me a right to do in my own home whatever I might please- subject to reasonable, hence minimal, governmental and legal interference; thus, since I can thereby decide for myself whether or not it is OK to smoke in my own home, I can smoke in my own home", then one is correct!
I was not saying that being permitted to smoke cannot ever be claimed under the concept of a Right to Privacy potentially flowing from the 9th Amendment: I was, instead, saying that smoking under any and all possible circumstances whatsoever cannot be so claimed.
Put another way: a right to smoke legal tobacco products in one's own home does not flow from an alleged "right to smoke" per se but, rather, from the right to enjoy one's own home with reasonable Liberty. As a result, however, this last (being, thus, constitutionally allowed to smoke in one's own home) does not have anything at all to do with being so allowed to smoke in a restaurant or bar outside one's home (as would so obviously be the case were there, indeed, a Right to smoke-- which, as I have already so often opined elsewhere on this site, there is not).
Now on to Mr. Minch's 2. and I have held this one for last because, or so I must warn the gentle reader, it is rather involved:
I have already mentioned, in my 15 February response to Mr. Stremsky, the Dick- or National Guard- Act of 1903 [32 Stat. 775] was that in which the term "National Guard" was first applied, nationwide, to each State's organized militia as they might be called into the national service ("federalized") upon the order of the President in his capacity as Commander in Chief of the Army and Navy of the United States [per Art. II, Sec. 2, clause 1 of the United States Constitution].
The relationship of each State's militia to the Federal Government was further clarified, where not also expanded, in the National Defense Act of 1916 [39 Stat. 166], where the Militia was expressly defined in that Act's Section 57 and has continued to be defined by Congressional authorization in subsequent amendments and recodifications of this original National Defense Act. The current version of this statute (codified as United States Code, Title 10, Sec. 331) reads as follows:
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and... under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are--
Thus, under current Federal statute, "all able-bodied males at least 17 years old and... under 45 years old who are, or who have made a declaration of intention to become, citizens of the United States" and "who are not members of the National Guard and the Naval Militia" are- by very definition- the "unorganized militia". So, if you- whomever you might be- happen to be reading this and you are--
1. male, able-bodied, at least 17 years old but not yet 45 years old;
But you, dear reader- assuming, of course, you actually fit all three criteria above- are a member of said "unorganized militia" solely by the very terms of this statute, thus- to bring all that has been discussed in this response to Mr. Minch almost full circle- serving in said "unorganized militia" is a privilege (hence, regulatable by the State) and not at all a, for the most part, unfettered Right! ;-)
Put another way: as a legal member of said "unorganized militia", those of you who fit the three criteria I have outlined for membership in same are- by very definition- subject to the oversight of the Federal government, the statutes of which have so defined you, as well as your own State's government (and, presumably, its Civil Divisions- meaning, whatever local governmental units below the State level might be relevant to the reader who might so be defined as part of this "unorganized militia") should you ever be called upon by any level of government to actually function as a militiaman.
This very fact puts the "ol' KI-bosh" on any claim by any self-proclaimed "militiaman" (regardless of whether or not he [or even she] fits or does not fit the definition of a member of the "unorganized militia") to be legally able to operate as part of a militia unit in absence of State and local (where not also Federal) oversight or even in defiance of said oversight by legal governmental authority. Simply put: if you are currently operating as a militia outside the purview of such governmental oversight, you are- at least potentially- in rebellion against your own State, if not the United States as a whole and you are- certainly- not at all operating under color of either Law or Constitution.
If one wishes to accept this position as "outlaw"/potential rebel one might have put one's self into as part of what has generally come to be called the "Militia Movement", one is certainly free to make the choice to take that risk (just as one who wishes to sell cocaine in his or her neighborhood is certainly free to make the choice to do so as well)--- just don't get caught! ;-)
My quarrel here is with those who might claim a legal, if not also constitutional, Right to take said risk on grounds that, say, they are merely preparing to do what the "Minutemen" who first fought the British at Lexington on the very first morning of the American Revolution (19 April 1775) had themselves done.
But the "Minutemen" of American historical lore were, in fact, subject to the authority of government: it just didn't happen to be the British Royal Government of Massachusetts Bay Province under which they, in the end, placed themselves! At the same time, they did not act on their own without the oversight of at least the de facto government to which they had pledged their allegiance, that of Massachusetts' colonial assembly known as the General Court-become-Provincial Congress and the Committee of Safety which the aforementioned Provincial Congress had come to authorize by its own statute.
A little history will bring all this into far better perspective, I think:
Although the so-called "Boston Massacre" of 5 March 1770 raised its fair share of what would become Patriot ire against rule under the British Crown, it was actually but one of a series of confrontations the citizenry of Boston had with British authority, in the form of customs agents where not actual redcoated soldiers, since the controversy engendered by the infamous Stamp Act had first convulsed the American Colonies back in 1765. The signal event which- ultimately- led to the American Revolution was, of course, the famous "Boston Tea Party" of 16 December 1773 in which members of the Sons of Liberty, disguised as Native American Indians, boarded British merchant ships anchored in Boston Harbor and dumped a large quantity of the tea onboard those ships into surrounding waters.
The British Parliament responded to news of what was considered, by many on the home island, to be an outrage with the Boston Port Bill of 7 March 1774 (which would go into effect on 1 June 1774, shortly after news of the Act itself would first reach Boston) closing the port to all shipping but food for the citizenry and fuel and supplies specifically dedicated to the British garrison in Boston until the losses to the British East India Company resulting from the "Tea Party" had been recouped. At around the same time, General Thomas Gage was formally commissioned Royal Governor of Massachusetts Bay Province, effectively placing the colony under military rule, despite the continued pretensions to civil governance.
Parliament followed this up with the so-called "Regulating Acts" of 20 May 1774, which Patriots referred to as the "Intolerable Acts" (once these had been publicly proclaimed after news of their passage reached the colony in early August of that year), reconfiguring the governmental and judicial system in Massachusetts Bay Province- including, among other things, restricting the purposes of Town Meeting to the mere choosing of local officers and a town's members of (its "deputies" to) the General Court (the legislative assembly of the colony- the lower house of the provincial legislature), making the Assistants and Councillors (who, besides being advisors to the province's Governor, also functioned as the upper house of the colonial legislature) appointive by- and serving at the pleasure of- the Crown (hitherto, the Assistants and Councillors had been chosen by the General Court) and making justices of the peace (up till these Acts, a town-elected office) and other local "inferior" judges appointive by the provincial government representing the Crown (up till now, only the provincial-level "superior" judges were so appointive).
Even before the colony- and its military/civil Royal Governor- had become aware of these "Intolerable Acts", however, events were already beginning to spiral out of control. The Charter of 1691 that had created Massachusetts Bay Province out of a merger of Pilgrim 'New Plymouth' with Puritan 'the Massachusetts', and then still in force, mandated that the Great and General Court meet on the last Wednesday in May: thus, by complete coincidence, the province's legislature happened to be meeting just as the Boston Port Bill was proclaimed and took effect.
As a result, anger over the Port Bill dominated legislative proceedings and, soon enough, Governor Gage attempted to prorogue the General Court (a power he had, by the way, under the provisions of the 1691 Charter) but, before he could do so (the deputies had locked the doors to the chamber), the assembly had passed a resolution calling for each of the British colonies to appoint "Committees of Correspondence", the members of which- so this resolution suggested- would meet together in a "Continental Congress" (thus, the First Continental Congress- made up of all the Committees of Correspondence from the colonies willing to appoint these- would convene in Philadelphia on 5 September 1774) before adjourning sine die on 17 June 1774.
As the summer of 1774 waned, Governor Gage issued writs of election allowing the Fall town meetings that year to choose new "deputies" to the next General Court but he also made it clear that, unlike the assembly he had failed to prorogue in June, such an assembly would only meet when he called them into session (by now, he had the "Regulating Acts" in hand to back him up, from at least a legal standpoint). The convention in Suffolk County, Mass. that had, on 9 September 1774, voted the so-called "Suffolk Resolves" (which would form the basis of the Resolutions of the First Continental Congress adopted the following month) suggested that the newly-elected deputies to the General Court meet, instead, on their own- without the blessings of the Royal Governor- as a "Provincial Congress" and collect the tax revenue from the towns of the province, so that these moneys would not go to the treasury of the Royal government in Boston. Thus, when the General Court-become-Provincial Congress first convened in Salem (they would move briefly to Concord and then, finally, Cambridge as their sessions went on) in early October 1774 and so proclaimed themselves, they had- thus- become the de facto "provisional government" of the colony in opposition to Governor Gage's de jure Crown-backed provincial Administration.
But the new "congressmen" of the Massachusetts were not altogether comfortable in their new role, for there was already a political divide evolving between eastern, semi-urbanized, seacoast-oriented "Cosmopolitans" and western, rural, upcountry "Localists" (to, once more, borrow the political terminology of historian Jackson Turner Main from his Political Parties before the Constitution): the "Localists" were generally more hot-headed, willing to take on the British directly- but, at the same time, they did not want a provincial armed force to be created, even one under the control of their own representatives; the "Cosmopolitans", meanwhile, tended to be more even-tempered (outnumbering the "Localists", they even ended up having enough votes to force the Provincial Congress/General Court to reject much of what the First Continental Congress had adopted!)- but they also wanted to be well prepared for what they assumed would await them come no later than the following Spring of 1775, by which time the effects of a New England winter would have fully thawed: a British show of force.
The "Localists" also wanted sanctions against all merchants, Boston Patriot as well as British, regarding potential importation of goods the upcountry folk felt would only serve the Crown to be more able to impose its will on the citizenry of Massachusetts; the "Cosmopolitans" were, often as not, those very Boston Patriot merchants! (Thus, the seeds of the later Shays' Rebellion of 1786, which would ultimately frighten men of means into creating the Constitution of the United States, were- even before a shot had been heard around the world from Lexington and Concord- already well being sown).
In addition, there was an acute awareness that the "congressmen" had not been elected as a Provincial Congress by the Townspeople of the colony but as merely the ordinary General Court. Accordingly, the first Provincial Congress adjourned sine die on 10 December 1774 in order to allow its members to go back home and seek re-election as, specifically, a colonist-supported second Provincial Congress. In the meantime, the Provincial Congress had, on 27 October, provided for a "Committee of Safety"- into which the politically dicey issues regarding just how to prepare for the inevitable military showdown with the ever-growing number of British troops already in Boston had already been dumped- and, before final adjournment, it formally authorized this Committee to, in effect, function as a "provisional executive" until the next Provincial Congress could convene (which would not be until February 1775). This authorization expressly permitted this Committee of Safety to make all needful regulations for the militia units throughout the colony in the absence of the Provincial Congress (there appears- in this provision- to be no little awareness that the next Provincial Congress might, somehow, even be prevented from meeting by the Royal Government in Boston).
It was under this very authorization that the "Minuteman" came into being. While Massachusetts found itself between Provincial Congresses, the Committee of Safety promulgated a regulation requiring each Town in the Province to set aside a quarter of what the 20th Century National Guard Acts would have termed its "organized militia"- supplemented by its "unorganized militia", where necessary- to be a force ever-ready to "respond at a moment's notice" (hence the very term "Minuteman", which properly should have been "Momentman"). By necessity, the "minutemen" were- wherever practicable- unmarried young men and even older boys of the Town or, at most, married men without children (a casualty rate for said Minutemen was, thus, already being assumed should they be forced to take on British troops). The second Provincial Congress formally accepted these regulations by statute when it convened in February 1775 and then went on to appoint general commanders of the militia in each County--
thus, on the very eve of the American Revolution, each Town in Massachusetts Bay Province had its usual militia commanded by its Captain, divided into three what we today would call "regular" units- each commanded by a Lieutenant (Captains and Lieutenants were chosen at Town Meeting, even under- if not also despite- the "Intolerable" Regulating Acts), plus a fourth what might nowadays be called "special force", the "Minutemen" themselves- but even this was under the ultimate command of the Town's militia Captain!
The individual Town militias together formed a Regiment under the command of a (usually) Colonel (to whom each Town's Captain was required to regularly report) of each County (a militia, as well as a judicial, district in colonial Massachusetts), himself now- as of February 1775- under the command of the duly elected Provincial Congress or, when not in session, the Committee of Safety-as-de facto Executive specifically appointed and authorized by that Provincial Congress...
nowhere was anyone, not even a "Minuteman", running about the countryside of Massachusetts in mid-April of 1775 without legally being beholden to the (however loose in those days) 'Chain of Command' thereby established, monitored and maintained by civil authority!
And, or so I would assume, the same would apply to any member of the "unorganized militia" as defined in Title 10 of the United States Code today!
This last should well address Mr. Minch's "concern" in his 2. above.