“Civil War, the U.S. Constitution and History” an essay by Dan Miller

Today’s Guest Saturday post comes to us from Dan Miller of the DanMillerInPanama blog. In this essay, Dan is making a post-election warning. He originally published this essay on November 1, 2012.


Civil War, the U.S. Constitution and History

We should do our best to avoid another Civil War and the best way to do that is to insist upon faithful adherence to the U.S. Constitution.

An article entitled The U.S. Constitution and Civil War, posted at my blog on December 27, 2011, has received more “hits” than any other post there. It has received 14.66% of my total hits this year thus far; 33.10% of those hits came this October, more than in any previous month. Another article, Shall we Have Another Civil War posted on August 10, 2011, has also received many hits this year.

This may indicate that there is now substantial interest in the Civil War, possibly as suggesting what our future may hold. I do not want another civil war, of any type, and hope that we can avoid it. The article concluded,

The U.S. Constitution is well worth saving, but not by violating, ignoring or otherwise diminishing it. We can properly amend it, a difficult process when the states are free to ratify or reject amendments. However, it is the only viable way unlikely to lead to long lasting scars or conceivably to another Civil War. The rights of the States are the keystone of the Federal system upon which the country was founded and prospered; chipping away at them even piece by piece, a few at a time, is perverse.

To have another civil war to preserve the federal union by disregarding the Constitution would be no less destructive and no less perverse than was the former. The Constitution provides sufficient political and legislative processes, if wisely used, to implement necessary changes and enough judicial safeguards to prevent Federal overreach in doing so. The Executive is required to follow the Constitution and to usurp neither the Congressional nor the Judicial prerogatives it embodies. The individual rights it guarantees are no less crucial. To avoid civil unrest and perhaps civil war, we should give far more thought than at present to returning to these and other basics of our form of government. Governments rot when their citizens let them and can recover only when their citizens demand it.

Unfortunately, fidelity to the Constitution has deteriorated greatly since 1861, much of it not in the distant past. President Obama and members of his administration have issued vigorous denunciations of free speech, most recently in connection with blaming the Benghazi disaster on a little viewed video. Political correctness in general holds great sway to the point that saying anything which anyone might conceivably find offensive is deemed unacceptable by many — and in some cases punishable by law — with very little regard for its truth. There have been Federal efforts to require religious organizations to provide contraceptives and abortifacientscontrary to their religious doctrines. There have been successful efforts to prevent States from taking action to enforce existing immigration laws in response to purposefulFederal failures to enforce them. There have been Executive Orders effectively repealing Federal immigration laws. These are examples of a growing trend. There are others. Until the Constitution regains its proper place, not only of respect but also as the supreme law of the land, the Constitution will remain in danger and so will the United States as a nation of laws.

What, short of violence, can be done in the face of these and other governmental usurpations? The easy answer is to fire those in Government who are responsible for them. Unfortunately that can’t be done simply by saying that it should be done, and actually doing it is far more difficult. It requires that those who vote first inform themselves of the issues, of the constitutional implication and of the positions taken by the candidates. However, candidates are generally circumspect in stating their positions, apparently due to desires to attract as many, and to alienate as few, voters as possible. Perhaps more attention should be paid to what they did in the past and less to what they now say they will do in the future.

How many voters have even read the Constitution? How many who have read it understand what its various sections mean, even broadly? How many care? I have read articles suggesting amendments to the Constitution but ignoring the explicit requirements of Article V for them to become effective — two thirds approval by both houses of the Congress to send a specific measure to the States, followed by ratification by three fourths of the States. (A Constitutional Convention called for by two thirds of the States can also propose an amendment, which must then be ratified by three fourths of the States to become effective, is also possible under Article V. However, that has not happened since the Constitution went into effect.) ObamaCare infringements of religious freedom under the First Amendment? What’s that? Who cares? They don’t infringe uponmy religion. Limitations on gun rights under the Second Amendment? What’s that and I don’t much care anyway because I don’t want a gun. States rights under the Tenth Amendment? I don’t know what that means, but they must be old fashioned and the Federal Government is really big and knows best. The Commerce Clause under Article I, Section 8? What’s that? Who cares? Shouldn’t the Federal Government just go ahead and do good things like they do in some countries? No, it shouldn’t, unless authorized under the Constitution.

Unfortunately, we tend to be upset by events of the present and of the immediate past, while relegating others to memory as lesser concerns. There is a tendency, even for some who generally stand for States rights, to favor otherwise unacceptable Federal intrusions when accompanied by Federal funding, without apparent regard to how those intrusions are likely to expand, and in what directions, even if the Federal funding does not. Here’s one example: even Colonel Allen West, whom I otherwise greatly admire, favored

federal legislation requiring states to impose uniform driver licensing requirements for teenagers in exchange for additional federal funding as well as to retain certain existing federal funding.

That legislation articulated specific steps to be taken by the Secretary of Transportation, but also vested tremendous authority in him to promulgate

any other requirement adopted by the Secretary of Transportation, including learner’s permit holding period at least 6 months; intermediate stage at least 6 months; at least 30 hours behind-the-wheel, supervised driving by licensed driver 21 years of age or older; automatic delay of full licensure if permit holder commits an offense, such as DWI, misrepresentation of true age, reckless driving, unbelted driving, speeding, or other violations as determined by the Secretary. (Emphasis added.)

The Secretary (as well as successor secretaries) was hence to be given an open legislative mandate to do whatever might in the future please him; for a court to find that nearly any requirement adopted by the Secretary had been beyond his statutory grant of authority would be very difficult if not impossible in such circumstances. Fortunately, that legislation remains in committee and appears to have little to no chance of passage. Unfortunately, the Federal legislative process increasingly delegates the writing of Federal laws to administrative agencies. Perhaps some of our CongressCritters are too lazy, too inept, too corrupt or too busy fund raising and campaigning during long pre-election seasons to bother to provide firm and clear instructions to Federal regulators. Or perhaps some Federal legislation is unnecessary and perhaps whatever is necessary can best be done by the individual States to suit the different needs of their citizens. ObamaCare is a prime example of delegation gone wrong. I understand that the Federal regulations already promulgated far exceed the statute in length and that more are on the way. We don’t need — and should not want — that sort of legislation, no matter how well intended it may appear to be on its face.

How about the history of the United States? In an article titled Governments Rot when their Citizens Let Them, I argued that although the government of the United States is still better than those of many other nations, it is in trouble:

[T]he United States has a history and retains a vestigial culture, albeit increasingly diluted and diminished, of individuality, independence, and public service as a burden to be accepted, only temporarily, for the common good. To us, the concept may seem rather naive, funny, and old-fashioned. It shouldn’t. Cincinnatus (519 – 438 B.C.), who returned to plow his fields in Rome when he had finished his job as supreme military commander, is fading as a role model and even a memory.

He gained fame as a model of Roman virtue. He was a farmer above all, but when called to serve his country he did so well, efficiently, and without question, even though a prolonged stay away from his farm could mean starvation for his family. When he served his country, he made his stint as dictator as brief as possible. He was also admired for his lack of ambition.

Much of that culture, although diminished in Rome, spread slowly to parts of what was then the wider world, including Britain. Centuries later, Britain gradually transitioned from an absolute monarchy to a constitutional monarchy, with many of the individual freedoms and restraints on government set forth in the United States Constitution. It took a very long time. Nor was it, as the French ruling class understood, automatic. M. Guillotine’s clever and comparatively humane device,celebrated as the people’s avenger, was much in use as the French Revolution proceeded. Far less humane “rebels” in Libya are hardly proving themselves historically unique by exacting their vengeance without much sensitivity.

. . . .

In more recent years, Britain’s culture has become no less multiculturally devalued than that of the United States. Venezuela, Cuba, and many others never, at least in recent memory, enjoyed cultures conducive to freedom and democracy. Ditto many countries in Europe, Africa, the Middle East, and Asia, plus some of the countries they colonized. Mexico? Hardly a role model for the United States; I didn’t learn much about Mexican history or culture half a century ago in school, and I doubt that many young people in Mexico learn much today about the history or culture of the United States. Few are likely to develop cultural attitudes in contemporary Mexico compatible with life in the United States.

Haiti was colonized by France and revolted to form a “republic” at about the time of the French Revolution. There was some stability under various dictators. More recently, there was a rebellion in 2004, then earthquakes and floods that made existence even worse. Will Haiti ever have democracyand freedom? In the foreseeable future, there seems to be no path to that destination, including some kind of well-intended conquest; some type of mobocracy, maybe, but not freedom.

History suggests that where the requisite seeds and fertile soil are lacking, germinating and growing responsible, responsive governments for a free people is almost impossible. Although President Obama is not the only leader in the United States more hopeful than knowledgeable about evenrecent history, as President he is more capable than most others of doing great harm.

Obama’s historical ignorance could be a full time beat for somebody who does this work for a living, and it tells us something truly important about Barack Obama. His ignorance is as broad as it is deep. Not that you couldn’t deduce that on your own from his performance on the job.

This lack of historical awareness, along with other disabilities, seems to have spawned a penchant for ignoring reality in such places as Libya while neglecting to water the fragile plant on our own still fertile soil — and whileusing what remains of it to bring impoverished cultures and their consequences to the United States. (Emphasis added.)

How many voting citizens pay attention to what’s happening in the United States, let alone the rest of the world? Not enough. In the article excerpted above I noted,

On the morning of Wednesday, April 20th, [2011] “Troy Polamalu has amazing hair, top-selling NFL jersey” was shown as the top story on Yahoo News. The point is not that Mr. Polamalu’s amazing hair is less than newsworthy, or even less than fascinating. It is that we have rather more important matters to pay attention to, and to ensure that our elected and appointed government officials deal with them on our behalf. Our basic liberties are eroding. Multiculturalism becomes the governmental and social norm. The authority of the allegedly most transparent governmentin history receives ever more expansive interpretations, its interpreters intent upon directing us along the paths they, in their infinite unwisdom, deem best.

The mass news media compound the difficulty by taking sides, apparently based on ideology and political preference, and hence failing to report events that would be inconvenient for those whom they support were they to report them objectively. Fortunately, by depriving them of the ratings they need to sell us as audiences for their sponsors’ products and hence to survive, we can perhaps train them to behave more responsibly as news media. Fortunately, some in the “new media” often tend to do a better job — for us.

There is not just a single gigantic Augean stable full of fecal matter that even Hercules would find difficult to muck out; there are many. Although it might be fun to condemn various of our elected representatives to mucking out real Augean stables full of realbovine excrement, no President has Herculean abilities and Hercules’ method — disposing of the stable contents with the help of two rivers — would not be approved by the EPA. Even if it were, it would not be effective in cleaning our many Augean stables:

First the hero tore a big opening in the wall of the cattle-yard where the stables were. Then he made another opening in the wall on the opposite side of the yard.

Next, he dug wide trenches to two rivers which flowed nearby. He turned the course of the rivers into the yard. The rivers rushed through the stables, flushing them out, and all the mess flowed out the hole in the wall on other side of the yard.

Nor can our own Augean stables be cleansed quickly. Governor Romney is not likely to reverse our disastrous current trends completely, but he is certainly more likely to begin to do so than is President Obama if reelected. He is also less likely further to countenance additional expansions of Federal authority beyond constitutional limitations. Governor Romney, along with a reasonably conservative Congress, can provide a beginning and might eventually even lay the foundations necessary to lead our nation back to the basics— a road that she now, perhaps more than at any other time since 1861, needs to take. Should we take that road, we can avoid civil war; if we don’t, I don’t know. If we don’t, perhaps we deserve whatever happens.




About Dan

I was graduated from Yale University in 1963 with a B.A. in economics and from the University of Virginia School of law, where I was the notes editor of the Virginia Law Review, in 1966. Following four years of active duty with the Army JAG Corps, with two tours in Korea, I entered private practice in Washington, D.C. specializing in communications law. I retired in 1996 to sail with my wife, Jeanie, on our sailboat Namaste to and in the Caribbean. In 2002, we settled in the Republic of Panama and live in a very rural area up in the mountains.


7 thoughts on ““Civil War, the U.S. Constitution and History” an essay by Dan Miller

    1. Jim, although it is said that 99% percent of all lawyers give the rest a bad name, it’s well to keep in mind that we lawyers are trained as technicians. Most represent the interests of their clients as best they can. It is not their job, as lawyers, to represent whatever they may personally see as the best interests of the nation. Often, they defend criminal clients knowing that they are guilty. Under our system, it’s up to the Government to prove guilt beyond a reasonable doubt; it’s not the job of defense counsel to help the Government to secure a conviction.

      It might be better if the lawyers in Government were to modify, to the extent that they can consistently with the law and canons of ethics, the notion of representing the Government as their client and focus instead, again to the extent permissible, on focusing instead on the best interests of country.

      Unfortunately, I have come to suspect that many lawyers in Government think they do that, but have strangely skewed perceptions of what those interests are or, in any event, should be. That makes me wonder what is the best path, if indeed there is one.

      1. Heh! ¡Calmase,amigo! Rereading my comment I can see why you might think I was taking a pot-shot at lawyers. Although I gad some unhappy experiences with in-house lawyers in my career, I got on very well with our out-of-house lawyers.

        The point I didn’t make so well is this. Over America’s history, there have been an inordinate number of our Congressmen and Senators who were lawyers by training. Lawyers by nature or training are very good wordsmiths. In my opinion, this characteristic allowed them, when writng or approving laws, to stretch the original intent of the Founders language in our constitution; such as, the meaning of the commerce clause and the general welfare clause. So, my point is that had Americans sent more historians who understood better what our Founders¡ intent was, maybe our central government today would look much more like what our Founders had in mind than what it aactually is today.

        So, my friend, my comment was intended to be a serious one and not a criticism of lawyers.

  1. I believe we are already engaged in a civil war. For the present, no one is using bullets. We are using words, and not very nice words, either. If this does not change … by which I mean if we cannot be civil toward one another, bullets will surely fly. Jefferson told us plainly, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” I am sorry to say, I believe Mr. Jefferson was correct.

    The problem with democracy is that it is based upon the unsound idea that all men can disagree with one another and still behave respectfully. It simply isn’t so. No society has ever believed (for long) that every citizen’s point of view is equal to all other points of view. At some point, when we have made our final argument, there is a time for action. In the present day, these likely actions bother me.

    This may be the reason our founding fathers gave us a Republic, instead.

    I would not worry so much about America if we could rely on honest and worthy servants of the people. We cannot. No one has transgressed our Constitution more than have our politicians, in Congress, and within our state legislatures. What were they thinking to pass the Seventeenth Amendment, thereby neutering the power of the states?

    No one has trampled more on the United States Constitution than the present administration, although there are others who have trodden upon it with equally heavy, muddy feet. Are these the people you think we can trust to “amend” this hallowed document? I once believed that it was time for a Constitutional Convention. We have not had one in a while. But after observing the filth that transpired in Wisconsin, after noting rampant voting fraud, after seeing how the President of the United States is able to so-easily suppress the votes of our military, a constitutional convention is the last thing I want to see happen. To call forth a convention would put an end to our Constitution, and in its place perhaps, erect a communist manifesto. And then the bullets would surely fly.

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