A special July 4 issue of the Boulder Weekly asks what the Founders would think about various modern issues. The article begins with an interview with Jim Hightower, the former Texas Agriculture Commissioner, who is now a populist political commentator (and whose column appears in the Boulder Weekly). After that, the article asks a series of written questions to me and to Paul Danish. Danish is former Boulder City Councilman and Boulder County Commissioner. He also once served as an Independence Institute Senior Fellow. He is best-known for "the Danish plan," a growth-control law adopted by the Boulder City Council.
The format did not require us to answer every question, and so a I skipped a pair about Guantanamo and the Patriot Act; a wise decision on my part, since there is little that I could add to Danish's thoughtful answers.
Below are some additional questions, and my responses, which were not included in the published article.
Does the average American understand the freedom our founding documents provide enough to successfully defend those freedoms from domestic enemies, i.e., the government itself?
No. The National Constitution Center's 1998 survey of teenagers found only 41 percent could identify the three branches of government, only 45% knew what the Bill of Rights was. As Ilya Somin detailed in a 2004 Cato Institute study, a large number of surveys show that between a quarter and a third of adults are extremely ignorant of public affairs; many cannot even name the Vice President. With so many people so scandalously ignorant, it is no wonder that elections so often produce rulers who, like Roman emperors, are better at pandering to transient hysterias and desires than at guarding our traditional liberties.
Which Constitutional Amendment are you most grateful for when you celebrate the Fourth of July?
The Second Amendment has been the topic of much of my scholarly writing, but I love all of the Bill of Rights; each of them makes the other nine stronger and more effective.
How would the Founders respond to modern feminism?
Many of them likely would have understood and approved that the democratizing forces unleashed by the Revolution would lead to political rights for the many American women whose talents were equal to those of Abigail Adams or Mercy Otis Warren.
What would the Founders have to say about the oil industry?
The actual extraction, refining, and distribution of oil would likely be seen as fulfilling the Founders' highest hopes of America's scientific and commercial genius. The oil industry's current role in politics might be seen as an inevitable consequence of the federal government's arrogation of a massive role for itself in choosing favored and disfavored big corporations to persecute or enrich, especially beginning in the early 20th century.
What would the Founders think of the outsourcing of American jobs?
There was a healthy debate in the Founding Era between protectionist forces (led by Alexander Hamilton) and free trade (led by Thomas Jefferson), with the protectionists winning. And even Jefferson, as President, accepted many protective tariffs. So perhaps the Founders would be divided on the trade issue today, as they were divided in their own time.
What Would George Washington Do?
For the many American women of lesser talents, though, maybe not?
Hmmm . . . .
Turns out it's a silence that speaks volumes (especially in light of George Washington's attitudes toward torture and harsh treatment):
Boulder Weekly: What would the Founders have to say about Abu Ghraib, Guantánamo Bay and secret military tribunals?
Paul Danish: Since they would view them through the lens of British treatment of American prisoners during the Revolution — thousands of American prisoners died of disease and maltreatment on de-masted ships used as prisons (the hulks) — they would view Guantánamo and Abu Ghraib as representing incredibly kind and caring treatment of prisoners. They would note that no one was killed at Abu Ghraib (only humiliated) and they would also note accommodations and conditions at Guantánamo exceeded by orders of magnitude the standard of living of most Americans at the time of the Revolution — including running water, plumbing, electricity and air conditioning in all cells, and far more food than most Americans in 1776 could dream of eating — and prepared in accordance with the religious traditions of the enemy at that. Chances are they would find the use of "secret military tribunals" little short of amazing, not because the tribunals were secret, but because prisoners were brought before a tribunal for a legal proceeding, secret or not. The standard of the day was that if you were policed up on a battlefield out of uniform, you could be hanged, or, if you were lucky, held in horrid conditions for the duration of the war.
Dave Kopel: [No answer]
With feminism I think they would agree with gender equity but object to gender supremacy, an area where some of feminism has gone.
He sees dead people.
http://www.thelizlibrary.org/suffrage/abigail.htm
If someone can point to a part of their correspondence where she asked him to remember the ladies and he took it seriously, I'd be glad to see it, but this is the exchange I'm most familiar with.
I cannot but laugh at your post. ;)
Despotism of the petticoat . . . what a
visionaryprick."Should any American soldier be so base and infamous as to injure any [prisoner]. . . I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause... for by such conduct they bring shame, disgrace and ruin to themselves and their country."
- George Washington, charge to the Northern Expeditionary Force, Sept. 14, 1775
They would also be shocked to see that guns have advanced beyond mere implements of hunting animals and become the primary way to kill another person. I'm sure if they could have foreseen this, the 2nd Amendment would have been written a bit different.
One of my favorite daydream fantasies when I was younger was to bring ole Ben Franklin back to show him all the technological progress that has been made. It would make his eyes pop!
I think that they would have been mighty proud to see their document still in force, still creating debates, and still working. I would not tell them that habeas corpus has now been suspended. And I would pretend we don't have Dick Cheney as a VP, so as to not embarrass them further.
Quite to the contrary, I would show them Cheney, Nixon and Jackson so they could revel in the fact that they built a strong enough to contain the ambitions of these men. That we managed to be a nation ruled by laws not by man.
They knew about rotten men and rotten deeds quite well enough and I think would be proud to see how well (all told) this country has dealt with them.
I can see CDS(Cheney Derangement Syndrome) alive and well on July 4th. I hope you're not the same Oren who contributes.
If you don't believe in the intellectual bankruptcy of a man that claims executive privilege while simultaneously claiming not be a member of the executive branch then I don't really know where we can begin.
Furthermore, we don't know the half of what happened at AG or Gitmo so until the DoD releases all the tapes (scheduled for 2045) and other physical evidence, we ought to reserve judgment about whether or not the mistreatment rises to the level of torture. Some of the allegations, if true, would certainly rise to that level (e.g., waterboarding, being sodomized by a broomstick) but again, we can't speak to the reliability of those accusation until the evidence is on the table.
Finally, how we treat our enemies is not about them, it's about us - it is a reflection of our values. When Al Qaeda tortures prisoners with electric drills, it is a reflection of their utter moral bankruptcy.
It's not about being right, it's about doing right.
Oh, and PD's comment (quoted by Lederman above) that no one was killed at Abu Ghraib, only humiliated--is that accurate? Don't we have photos of the guy who was killed and packed in ice? I'm not sure if that was an oversight on PD's part or if there is some dispute about that incident--I don't really know the details.
Please explain how the third amendment makes the eighth amendment stronger and more effective.
I have a couple of nits to pick with you:
At least Congress had the decency back in 1919 to realize that a Constitutional amendment was needed before Congress could control the manufacture, merchandising, possession and use of alcohol. Today -- not even bothering with the required amendment(s) -- Congress has passed and the courts have upheld utterly unconstitutional laws that give bureaucrats -- not even elected representatives -- complete control to ban any substance they wish and to impose extraordinary punishments on those who violate the ban. Federal laws have even been interpreted to forbid the ownership of texts describing how to make banned substances (under certain vague circumstances.)
Surprise: guns were the primary means of killing people in 1776 and and one of the primary means during the preceding 400 years. Believe it or not, firearms were used by soldiers and militias all during the 18th century. You may be suffering from Bellisle-disease.
I'm sorry, but you are completely out of your mind. While guns were often used for hunting, no question, even in the late 18th century hunting was hardly the primary means of getting meat for the majority of the population: they raised pigs, cattle, goats, sheep, chickens, and so on. The Second Amendment was very specifically and intentionally oriented to weapons of warfare. ("Well regulated militia", remember?)
Because, after all, everyone should be considered guilty on the basis of accusation as long as you oppose them politically.
People are innocent until proven guilty. Governments, on the other hand, are accountable to the people and must give us fair reckoning of their actions. People ought to have privacy, governments ought to have transparency.
This is especially true in the case at hand where the government has admitted to having the tapes but will not disclose the content. There is absolutely no justification for withholding those tapes from the American public.
I have not pronounced the US government guilty - I have only stated the plain and evident fact that they have not been forthright about the manner in which prisoners have been treated. Like the Gipper said "Trust, but verify."
IIRC, they came to this decent realization only after the Supreme court shot down their efforts to exert power in that area without an amendment. So don't be impressed, then as now, Congress only obeys the Constitution to the extent the courts require them to.
IMO, perhaps the greatest disappointment to the founders would be how supinely we've allowed the government to regulate political speech. "Electioneering communications" are exactly what they were aiming to protect with the 1st amendment.
I'm reading a political novel by his former co-editor of The Texas Observer, Larry L. King. So far, The One-Eyed King is a hoot. Think of All the King's Men with a skewering humor. King is best known for the non-fiction The Best Little Whore-House in Texas unravelling with the investigation of the lyrics of a ZZ Top song.
The Washington quote by Oren, above, shows how ignorant Danish is about Washington.
- Overall taxation levels.
- Eminent domain used for private projects in violation of the Constitution.
- The "states' right to have national guards" interpretation of the Second Amendment.
- The idea that "establishment" per the First Amendment means something additional to instituting an official national church.
- The trend away from naming schools after certain Founders because they owned slaves. (Ironically, by that rule you can't have schools named after U. S. Grant but you can have schools named after R. E. Lee.)
- That a grade school education teaches mere highlights of American history with little real depth.
Suggestion: replace "Supreme Court" with Congress or the Presidency.
By the U.S. government's own definition they would clearly be terrorists, so I don't know what you're complaining about:
18 U.S.C. 2331:
(5) the term "domestic terrorism" means activities that—
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States.
Yes, thankfully it was at the very beginning which probably saved a lot of people the trouble of wasting their time reading the rest of the article.
And Anderson would have done well to learn how to read a statute before posting.
What's the legal definition of "intimidate?" That clause could brand many major special interests as terrorist organizations.
I'm not sure what Winston's complaining about - substituting England for the United States, the rebellion probably would qualify as "domestic terrorism" under section 2331. We don't call the Revolutionary War treason because it prospered.
Try reading the entire section of the statute.
I took the point at issue to be that the statute's definition, taken by itself, would apply to the founders. That seems right to me. There are all those reasons why it's not literally applicable, but those are contextual, procedural points. If we substitute "England" or "the Colonies" for "United States," wouldn't the definition apply?
Thanks for providing a link to the full statute; always good form.
That sentence should read, "18 U.S.C. 2331 could brand persons within many major special interests as terrorists." (Paragraph A was supposed to be highlighted.) Noting that most special interests have a violent fringe, I ask this: do all potentially lethal crimes intitiated by that fringe constitute terrorism, as the code seems to imply? The most blatant examples certainly are, particularly when involving the weapon most often associated with terrorism (explosives). But what about rioting, such as those at Crown Heights and Seattle, or in the bloodier union riots of yore? Is that terrorism, or something else? What about making anonymous death threats over the phone, something that's been inflicted on some corner of just about every cause in America?