FReeper Book Club: The Debate over the Constitution, Brutus #10

Brutus, most likely Judge Robert Yates of New York, takes on the issue of the Constitution allowing any kind of standing army, turning to history for support.

² The liberties of a people are in danger from a large standing army, not only because the rulers may employ them for the purposes of supporting themselves in any usurpations of power which they may see proper to exercise, but there is great hazard that an army will subvert the forms of the government under whose authority they are raised, and establish one according to the pleasure of their leader.

³ We are informed in the faithful pages of history of such events frequently happening.

⁵ They are so remarkable that they are worthy of the most careful attention of every lover of freedom.

⁶ They are taken from the history of the two most powerful nations that have ever existed in the world, and who are the most renowned for the freedom they enjoyed and the excellency of their constitutions: I mean Rome and Britain.

⁷ In the first, the liberties of the commonwealth [were] destroyed and the constitution overturned by an army led by Julius Cesar who was appointed to the command by the constitutional authority of that commonwealth.

⁸ He changed it from a free republic, whose fame had sounded and is still celebrated by all the world, into that of the most absolute despotism.

⁹ A standing army effected this change, and a standing army supported it through a succession of ages which are marked in the annals of history with the most horrid cruelties, bloodshed and carnage – the most devilish, beastly and unnatural vices that ever punished or disgraced human nature.

¹⁰ The same army, that in Britain vindicated the liberties of that people from the encroachments and despotism of a tyrant king, assisted Cromwell, their general, in wresting from the people that liberty they had so dearly earned.

¹² But those, who would persuade you to believe this, either mean to deceive you or have not themselves considered the subject.

¹³ I firmly believe no country in the world had ever a more patriotic Army than the one which so ably served this country in the late war.

¹⁴ But had the general who commanded them been possessed of the spirit of a Julius Cesar or a Cromwell, the liberties of this country had in all probability terminated with the war, or had they been maintained, might have cost more blood and treasure than was expended in the conflict with Great Britain.

¹⁵ When an anonymous writer addressed the officers of the Army at the close of the war, advising them not to part with their arms until justice was done them, the effect it had is well known.

¹⁷ He wrote like Caesar, and had the Commander-in-Chief and a few more officers of rank countenanced the measure, the desperate resolution had been taken to refuse to disband.

¹⁸ What the consequences of such a determination would have been, heaven only knows.

¹⁹ The Army were in the full vigor of health and spirits, in the habit of discipline, and possessed of all our military stores and apparatus.

²¹ Those who were disgusted at our republican forms of government – for such there then were of high rank among us – would have lent them all their aid.

²² We should in all probability have seen a constitution and laws dictated to us at the head of an army and at the point of a bayonet, and the liberties for which we had so severely struggled snatched from us in a moment.

²³ It remains a secret, yet to be revealed, whether this measure was not suggested or at least countenanced by some who have had great influence in producing the present system.

²⁴ Fortunately indeed for this country, it had at the head of the Army a patriot as well as a general, and many of our principal officers had not abandoned the characters of citizens by assuming that of soldiers, and therefore the scheme proved abortive.

²⁶ Are we so much better than the people of other ages and of other countries that the same allurements of power and greatness which led them aside from their duty will have no influence upon men in our country?

²⁸ Had we indulged such a delusion, enough has appeared in a little time past to convince the most credulous that the passion for pomp, power and greatness works as powerfully in the hearts of many of our better sort as it ever did in any country under heaven.

²⁹ Were the same opportunity again to offer, we should very probably be grossly disappointed if we made dependence that all who then rejected the overture would do it again.

³⁰ From these remarks, it appears that the evil to be feared from a large standing army in time of peace does not arise solely from the apprehension that the rulers may employ them for the purpose of promoting their own ambitious views, but that equal and perhaps greater danger is to be apprehended from their overturning the constitutional powers of the government and assuming the power to dictate any form they please.

³¹ The advocates for power in support of this right in the proposed government urge that a restraint upon the discretion of the legislatures in respect to military establishments in time of peace would be improper to be imposed because they say it will be necessary to maintain small garrisons on the frontiers to guard against the depredations of the Indians, and to be prepared to repel any encroachments or invasions that may be made by Spain or Britain.

³² The amount of this argument, [stripped] of the abundant [verbiage] with which the author has dressed it, is this: It will probably be necessary to keep up a small body of troops to garrison a few posts which it will be necessary to maintain in order to guard against the sudden encroachments of the Indians, or of the Spaniards and British, and therefore the general government ought to be invested with power to raise and keep up a standing army in time of peace, without restraint, at their discretion.

³⁴ Logicians say it is not good reasoning to infer a general conclusion from particular premises; though I am not much of a logician, it seems to me this argument is very like that species of reasoning.

³⁵ When the patriots in the Parliament in Great Britain contended with such force of argument, and all the powers of eloquence, against keeping up standing armies in time of peace, it is obvious they never entertained an idea that small garrisons on their frontiers, or in the neighborhood of powers from whom they were in danger of encroachments, or guards to take care of public arsenals, would thereby be prohibited.

³⁶ The advocates for this power further urge that it is necessary because it may, and probably will, happen that circumstances will render it requisite to raise an army to be prepared to repel attacks of an enemy before a formal declaration of war, which in modern times has fallen into disuse.

³⁷ If the Constitution prohibited the raising an army until a war actually commenced, it would deprive the government of the power of providing for the defense of the country until the enemy were within our territory.

³⁸ If the restriction is not to extend to the raising armies in cases of emergency, but only to the keeping them up, this would leave the matter to the discretion of the Legislature, and they might, under the pretense that there was danger of an invasion, keep up the army as long as they judged proper, and hence it is inferred that the Legislature should have authority to raise and keep up an army without any restriction.

³⁹ But from these premises nothing more will follow than this: that the Legislature should not be so restrained as to put it out of their power to raise an army when such exigencies as are instanced shall arise.

⁴⁰ But it does not thence follow that the government should be empowered to raise and maintain standing armies at their discretion as well in peace as in war.

⁴¹ If indeed it is impossible to vest the general government with the power of raising troops to garrison the frontier posts, to guard arsenals, or to be prepared to repel an attack when we saw a power preparing to make one, without giving them a general and indefinite authority to raise and keep up armies without any restriction or qualification, then this reasoning might have weight, but this has not been proved nor can it be.

⁴² It is admitted that to prohibit the general government from keeping up standing armies while yet they were authorised to raise them in case of exigency would be an insufficient guard against the danger.

⁴³ A discretion of such latitude would give room to elude the force of the provision.

⁴⁴ It is also admitted that an absolute prohibition against raising troops, except in cases of actual war, would be improper because it will be requisite to raise and support a small number of troops to garrison the important frontier posts and to guard arsenals, and it may happen that the danger of an attack from a foreign power may be so imminent as to render it highly proper we should raise an army in order to be prepared to resist them.

⁴⁵ But to raise and keep up forces for such purposes and on such occasions is not included in the idea of keeping up standing armies in times of peace.

⁴⁶ It is a thing very practicable to give the government sufficient authority to provide for these cases and at the same time to provide a reasonable and competent security against the evil of a standing army.

⁴⁸ “As standing armies in time of peace are dangerous to liberty and have often been the means of overturning the best constitutions of government, no standing army, or troops of any description whatsoever, shall be raised or kept up by the Legislature, except so many as shall be necessary for guards to the arsenals of the United States, or for garrisons to such posts on the frontiers, as it shall be deemed absolutely necessary to hold, to secure the inhabitants and facilitate the trade with the Indians; unless when the United States are threatened with an attack or invasion from some foreign power, in which case the Legislature shall be authorised to raise an army to be prepared to repel the attack, provided that no troops whatsoever shall be raised in time of peace without the assent of two-thirds of the members composing both Houses of the Legislature.”

⁴⁹ A clause similar to this would afford sufficient latitude to the Legislature to raise troops in all cases that were really necessary, and at the same time competent security against the establishment of that dangerous engine of despotism, a standing army.

⁵⁰ The same writer, who advances the arguments I have noticed, makes a number of other observations with a view to prove that the power to raise and keep up armies ought to be discretionary in the General Legislature; some of them are curious: he instances the raising of troops in Massachusetts and Pennsylvania to show the necessity of keeping a standing army in time of peace; the least reflection must convince every candid mind that both these cases are totally foreign to his purpose.

⁵¹ Massachusetts raised a body of troops for six months, at the expiration of which they were to disband of course; this looks very little like a standing army.

⁵³ So far from it that they were in the most violent commotions and contents, and their legislature had formally declared that an unnatural rebellion existed within the state.

⁵⁴ The situation of Pennsylvania was similar: a number of armed men had levied war against the authority of the state and openly avowed their intention of withdrawing their allegiance from it.

⁵⁵ To what purpose examples are brought of states raising troops for short periods in times of war or insurrections on a question concerning the propriety of keeping up standing armies in times of peace, the public must judge.

⁵⁶ It is farther said that no danger can arise from this power being lodged in the hands of the general government because the legislatures will be a check upon them to prevent their abusing it.

⁵⁷ This is offered; as what force there is in it will hereafter receive a more particular examination.

⁵⁸ At present, I shall only remark that it is difficult to conceive how the state legislatures can in any case hold a check over the General Legislature in a constitutional way.

⁵⁹ The latter has, in every instance to which their powers extend, complete control over the former.

⁶⁰ The state legislatures can in no case by law, resolution, or otherwise of right, prevent or impede the general government from enacting any law, or executing it, which this Constitution authorizes them to enact or execute.

⁶¹ If then the state legislatures check the General Legislature, it must be by exciting the people to resist constitutional laws.

⁶² In this way, every individual, or every body of men, may check any government in proportion to the influence they may have over the body of the people.

⁶³ But such kinds of checks as these, though they sometimes correct the abuses of government, oftener destroy all government.

⁶⁴ It is further said that no danger is to be apprehended from the exercise of this power because it is lodged in the hands of representatives of the people; if they abuse it, it is in the power of the people to remove them and choose others who will pursue their interests.

⁶⁵ Not to repeat what has been said before – that it is unwise in any people to authorize their rulers to do what, if done, would prove injurious – I have in some former numbers shown that the representation in the proposed government will be a mere shadow without the substance.

⁶⁶ I am so confident that I am well founded in this opinion that I am persuaded if it was to be adopted or rejected upon a fair discussion of its merits without taking into contemplation circumstances extraneous to it as reasons for its adoption, nineteen-twentieths of the sensible men in the Union would reject it on this account alone, unless its powers were confined to much fewer objects than it embraces.

Some five days after Madison grandly declared the issue of a standing army settled (Federalist #41), the New York papers resounded to a blast from Brutus indicating that it was anything but. First, Madison:

²⁵ But was it necessary to give an indefinite power of raising troops as well as providing fleets, and of maintaining both in peace as well as in war?

²⁷ The answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place.

³ We are informed in the faithful pages of history of such events frequently happening.

So the debate once more rages. While the critic may shake his head at the liberties which both men took with historical precedent, the basic argument revolves around two poles: is a standing army necessary, and is it too dangerous? These were, after all, the criteria established for constitutional analysis by Madison himself in Federalist #41 (5), and it is here that Brutus bolsters what he considers an insufficiency of weight given to the latter proposition.

Shorn of indirect reference, he cites two circumstances under which a standing army may be abused: first, by existing civilian leaders in support of their own drive for extralegal power; and second, by military leaders seeking to effect a coup d'état (2, and curiously, repeated nearly word for word at 30). These have historical precedent beyond that which Brutus was able to supply in this essay. In the 20th Century alone, the accession to power of the Nazis in 1930's Germany was an example of the former, and the formation of the modern Turkish government under Mustafa Kemal – Ataturk – an example of the latter.

Brutus has chosen an unfortunate case to exemplify the latter in Julius Caesar, whose nemesis was the historical Marcus Junius Brutus.

⁸ He changed it from a free republic, whose fame had sounded and is still celebrated by all the world, into that of the most absolute despotism.

It is an example well-known to his readers, albeit historically shaky. In fact, it was Rome’s policy, both then and afterward, not to allow a standing army of any sort on the Italian peninsula, the Praetorian Guard taking up such domestic security duties as the Roman government would permit. What Caesar accomplished by his famous crossing of the Rubicon was to introduce a field army formed for foreign campaigns into an area in which no standing army was allowed to exist. This is more than a quibble; in fact, it undermines Brutus’ case to a significant degree, at least insofar as this example takes him.

Cromwell’s defenders might object – which side liberty, after all? – but in fact Cromwell did end up dissolving Parliament and assuming the throne in everything but name, and his New Model Army was the instrument through which he accomplished it. It is interesting to note that one of the issues that placed him back at its head between the English Civil Wars was the delinquency of Parliament to pay the troops that had upheld Parliament’s power against the King. It was a delinquency that nearly toppled the new American government some 140 years later, as Brutus is about to point out. For even the most patriotic of armies can be swayed.

¹³ I firmly believe no country in the world had ever a more patriotic Army than the one which so ably served this country in the late war.

¹⁵ When an anonymous writer addressed the officers of the Army at the close of the war, advising them not to part with their arms until justice was done them, the effect it had is well known.

That was, of course, what has since been named the Newburgh Coup of 1783, faced down by a stern and unbending Washington, and instigated by an “anonymous writer” as yet unknown to Brutus (23). He describes how ready the Army was to take over (19), and how ready certain high-placed Americans were to support it (21). But it did, in fact, turn out well.

Place a Caesar instead of a Washington in that position, however, and it might have been very different, says Brutus. Perhaps, although one notes that in the succeeding two centuries it has not happened; nor was Robert Yates, Brutus’ identity presumptive, ever a soldier himself. Hence his views on the matter must necessarily be derivative. Nevertheless, it is a point supported in history and is the basis of a wide arc of speculation on the part of Brutus concerning what might happen in the presence of a standing army, or a leader, not quite so patriotic.

Brutus does concede that small frontier garrisons might be necessary and attempts to divorce them from the concept of any larger standing army (31-35). The issue, he says, is that this limited form of permanent military establishment is not the same thing as a permanent national army (32, 33). He does concede that waiting until war is declared is impractical in the present age (36, 42), making a curious observation about formal declarations of war. As well, he concedes that any absolute prohibition would be improper (44). Stubbornly, Brutus will not concede that this extends to the maintenance of standing armies (39), and he proposes instead the following clause to answer both his opponents’ objectives and his own objections.

It is, sadly, an absurdity. Brutus has been forced to concede every one of his opponents’ cases, except for an insistence that somehow Congress will be aware when the United States are “threatened” – this in the face of his own admission that formal declarations of war are passé – and that the proper repository for this act of discretion is the very Congress that later in the essay he will declare to be insufficient to the task (64, 65). He does, however, offer the novel qualification that such armies are only to be approved by two-thirds of the members of Congress, a Congress he elsewhere has condemned as grossly under-representative. It is the roaring of an elephant giving birth to a mouse.

When the objective reader considers Madison, Hamilton and Brutus on the topic, he must concede that this was a matter all took very seriously, and that the necessity for precaution against abuse was acknowledged by everyone in the debate. The events of 1812 would settle the matter of the ability of any government, federal or state, to raise an army in a manner timely enough to counter a present threat, and to the chimera of a military coup would be answered the indelible image of Dolly Madison packing the White House crockery and fleeing the oncoming British army.

²³ It remains a secret, yet to be revealed, whether this measure was not suggested or at least countenanced by some who have had great influence in producing the present system.

Brutus explains how George Washington stood up to the coup plotters at Newburgh in 1783, and how his character and example stopped the budding attempt at fascism. Brutus understood that if someone of lesser character had been at the head of the Continental Army, the Confederation would have been toppled and replaced with a dictator or king. The identities of Robert Morris, the Philadelphia banker, and Gouveneur Morris, his assistant, as the instigators of the plot, were unknown at the time except among the men who had comprised Washington’s staff at the end of the war.

Robert Morris had been the Superintendent of Finance and was responsible for keeping the infant nation afloat during the war, founding the Bank of North America, the nation’s first attempt at a central bank. The bank issued paper money backed by gold, silver and commercial paper from France and the Netherlands. However, due to charges of foreign influence, Pennsylvania revoked the charter of the central bank, and the bank reformed under a state charter with a much smaller domain of operations.

The Morrises were able to cover their tracks well enough that they were chosen to represent Pennsylvania at the Constitutional Convention. Robert, Gouveneur, and their lawyer, James Wilson, played key roles in writing the Constitution.

When Washington arrived in Philadelphia, he was supposed to stay in rooms rented from a Mrs. House. But Robert Morris intercepted Washington’s coach and asked him to stay at his own home. Washington had earlier turned down a written offer to stay with Morris, but he wasn’t going to be seen to turn down a pubic offer. After unloading his luggage at the Morris home, he immediately took leave of the financier and went to the home of Benjamin Franklin to pay his respects. Washington had delivered a message, although a subtle one.

Gouveneur Morris didn’t get off so easily. In The Summer of 1787, David Stewart tells of a social event preceding the Convention. Gouveneur Morris asked Hamilton, the man who had been the conduit between the Morrises and Washington at Newburgh, if His Excellency was as austere as he had heard. Hamilton, knowing Washington’s opinion of the man, suggested he give the general a hearty welcome. Morris went up to Washington, slapped him on the back and welcomed him to Philadelphia. Washington slowly turned and gave Morris a look that would have frozen brimstone. Morris beat a hasty retreat, while Hamilton tried valiantly to hide his mirth.

Despite what had happened four years earlier, Washington let bygones be bygones. Robert Morris’ financial acumen was going to be necessary to the enterprise, as was Gouveneur Morris’ way with words. Their able lawyer, James Wilson, was to be one of the leading lights of the Convention.

Within the tightly-knit legal community of New York, Brutus may have heard whispered details of the Newburgh incident from Hamilton or others. Without naming names, he suggests the coup plotters may have been present at the Convention – which they were.

Traditionally, there have been two methods by which the United States goes to war.

The first, a congressional declaration of war, is used when fighting a sovereign state. Once the war ends, the declaration is repealed in the peace treaty following the war.

The second, a congressional statement authorizing the use of force, is used when fighting a non-sovereign. Once fighting ends, the statement is not repealed, but left on the books. This is merely legal sloppiness, and nothing else should be read into it.

In the 20th Century, other forms of sloppiness entered the picture. Multiple interventions in Mexico, Haiti and Nicaragua were authorized by Congress as uses of force, not war. In the Korean War, the United Nations was recognized as the actual belligerent. In Vietnam, a congressional authorization to use force was subject to “scope creep” as the war escalated. Interventions in the Caribbean were ordered by presidents as commander-in-chief, and Congress authorized the intervention after the fact, or not at all.

Congress used a declaration of force when backing Jefferson against the Barbary pirates, a non-sovereign, and an identical declaration was used when backing military action against al-Quaida. The invasion of Iraq was ostensibly to enforce a United Nations mandate.

While Brutus complains that the declaration of war has fallen out of favor in his time, the same is true today.

This is only one topic here. At 48, Brutus writes a provision he wishes inserted into the Constitution to prohibit the existence of a standing army except under very specific conditions. Take a stand for or against Brutus, and build your case.

This is the first time I heard of the Newburgh Conspiracy. I knew that the army had trouble getting paid but never that an actual coup was almost instigated. Very interesting.

http://en.wikipedia.org/wiki/Newburgh_Conspiracy

“Morris beat a hasty retreat, while Hamilton tried valiantly to hide his mirth.”

Yet another indication that Hamilton was a snake in the grass.

“Take a stand for or against Brutus, and build your case.”

In that time, I’m generally against this idea of having a standing army. The problem isn’t that a standing army might lead to a coup but that the protagonists here, notably Hamilton, wanted to create a great nation and a standing army quickly became a tool by which the “Great Nationers” would find it easiest to act, i.e. the war of 1812, wars against the Indians, etc. Moreover, it allowed the militias to dissolve thus the early United States became dependent on a professional military. No longer did every man have to be a rifleman.

Not every enemy military action has to be instantaneously repelled. I think the Pearl Harbor model is pretty good, i.e. take a hard knock on the chin, build a military and then crush them in a way that no one will ever forget. Would we have been a stronger nation in 1941 if we had maintained a military large enough to deter the Japanese attack? Obviously not.

Today though, it’s hard to see how we could be the country we are without the military we have. One has to wonder what it would be like to have a military 1/10th the size it is today. We certainly could not be a diplomatic leader in the world. We’d be more like China.

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