No. Not Everyone Can Do Political Theory

This one is going to hurt the old brain. It begins with CNN publishing the following opinion piece from a law professor improbably named Carl T. Bogus: There’s no right of revolution in a democracy

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” — Second Amendment to U.S. Constitution

Did the Founders give us a right to bear arms so we could resist government tyranny?

You know you are off to a bad start when there exists no logical connection between the opening statements of your opinion piece and the titleof your opinion piece. I’m not saying the Second Amendment isn’t important, or that it isn’t the occasion for interminable political debate in this country; I’m saying it has nothing to do with the right of revolution per se. The right to revolution would still be a question even if the Second Amendment never existed. The Second Amendment is neither necessary nor sufficient to bring into question the right of revolution. Our capacity to exercise that right effectively could be impacted by it, but not our right to it. From a political theory perspective Dr. Bogus is about to engage in a trip along a rather pointless tangent, but let’s humor him and follow along:

Is that why James Madison drafted the Second Amendment, the First Congress proposed it, and the states ratified it in 1791? And regardless of what Madison and his contemporaries had in mind, what are the ramifications of this idea — often called the “insurrectionist model” because it means Americans may possess arms to potentially go to war with their own government — for the Republic today?

There is a powerful image in our collective consciousness: the Minutemen, armed with their own muskets, rushing to Concord Green and the North Bridge in Lexington to prevent British troops from seizing a militia arsenal at Concord. We assume the Founders enshrined this tradition — a right of armed citizens to resist governmental oppression — in our Constitution with the Second Amendment.

That assumption is wrong.

First, it overlooks a critical distinction. The Minutemen were not going to war with their own government.

What?

They were going to war with British forces. Yes, of course, the American colonies were part of the British Empire. But Americans increasingly had come to see British forces as a foreign army of occupation.

Oh, I see. So, as long as the American colonists’ perception of the legitimacy of British rule changed then everything was different. That must be the reason Thomas Jefferson wrote the following letter to King George:

Dear George,

I must say this upfront: the problem isn’t with you, its with us. We’ve changed. Oh sure, we all had our laughs in the past! Remember how we beat the tar out of the French and Indians?! Ha! Good times. But who are we kidding? It hasn’t been the same for awhile now. It’s never going to be what it was. We are in different places now. I just cannot see us together any longer as legitimate ruler and subject. It’s best we make a clean break of it.

Fondly yours in memory only,

Thomas Jefferson (and the rest of the colonists)

Wait a second. Jefferson didn’t write that. I did, after watching an episode of Oprah. What Jefferson wrote, of course, was quite a bit different:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Notice, there is nothing here indicating that the perception of the colonists has anything to do with the proceedings. Indeed, it was the actions of the British government, i.e. the violation of the unalienable Rights of the colonists, that was responsible for the coming of revolution. Removing themselves from British rule was the active task of the revolutionaries.  Indeed, this is proven by the fact that so many rebels in 1775 were not interested in Independence.  They were violently resisting a government many hoped to be reconciled with in the future.  To say, as Bogus does, “[t]he Minutemen were not going to war with their own government,” is simple nonsense.

But, let’s continue on:

At the center of their thinking was the fact that the American colonies were unrepresented in Parliament. Whig ideology of the day — widely accepted on both sides of the Atlantic — was that no democratic government could become tyrannical over the people it represented. Americans believed that it was because they were unrepresented that Parliament had few qualms about imposing oppressive taxation on them. Their cry was, “No taxation without representation.”

Well, let’s see what the Whigs have to say about that.  Presumably, when Bogus is discussing “democratic government” in relation to Whig theory he is actually talking about mixed regimes.  For example, the most influential of the English Whigs in America was Algernon Sidney, who had this to say about democracies:

As to popular government in the strictest sense (that is pure democracy, where the people in themselves, and by themselves, perform all that belongs to government), I know of no such thing; and if it be in the world, have nothing to say for it. [Sidney, Discourses Concerning Government, Ch. 2, Sec. 19]

Ouch!  So Bogus is most likely conflating democracies with mixed regimes.  Wait a minute… Sidney says something about people who do that as well:

However more ignorance cannot be express’d, than by giving the name of democracy to those governments that are composed of the three different species [i.e. mixed regimes], as we have that all the good ones have ever been… [Sidney, Discourses Concerning Government, Ch. 2, Sec. 30]

Double ouch!  Those Whigs sure know how to smack down Bogus.

The Whigs as a group were indeed jealous of protecting popular power which in their case meant defending parliamentary prerogatives against the power of the king.  However, Whigs like Sidney spent considerable time showing how even mixed regimes could become tyrannical when one of the elements of that mixed regime adopted an overweening ambition.  So, democracy was not some sort of magic cure all.  For the Whigs there was such a thing as too much democracy.  News flash to Dr. Bogus: our American Founding Fathers thought the exact same way.

Sadly, Bogus continued:

Second, the assumption overlooks history.

How did the Founders react when Americans took up arms — not against the Redcoats — but against their own government? That happened twice. In Shays’ Rebellion in 1786, small farmers and shop owners in western Massachusetts, armed with muskets and angry that the courts were foreclosing on their property to satisfy their debts, forcibly closed the courts and threatened to march on Boston.

In the Whiskey Rebellion of 1794, farmers in Pennsylvania and Kentucky took up muskets and threatened government officials who were charged with collecting taxes on whiskey.

Madison called Shays’ Rebellion treason. The governor of Massachusetts raised an army to crush the rebellion — an action endorsed by George Washington, Samuel Adams, John Jay, Benjamin Franklin and John Marshall.

Eight years later, during the Whiskey Rebellion, George Washington said that permitting citizens to take up arms against the government would bring an “end to our Constitution and laws,” and he personally led troops to extinguish the rebellion.

This is slightly silly.  At the time of the revolution, the Founding Fathers were aware of the distinction between revolution and simple rebellion.  Jefferson put the distinction in the Declaration:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

The very fact that both Shay’s Rebellion and the Whiskey Rebellion were occasioned by rather parochial concerns proved that these were not situations of a “long train of abuses pursuing depotism.”  So, the reactions of Madison or Washington to the rebellions were not some deviation from their revolutionary days, they were a confirmation of them.

More Bogus:

The militia the Founders envisioned was not an adversary of government but an instrument of government, organized by Congress and subject to governmental authority. It was not a tool for insurrection but, as the Constitution itself states, a tool to “suppress Insurrections and repel Invasions.”

If this is so why did they then reserve the right to bear arms to ”the people”?  Why not leave all military power with the federal government?  The reason was they feared a standing army which the national government could use against the people in their home states.  The militia was not nationalized expressly to keep it from being used as a “tool of government.”  (See Jackson Turner Main, The Anti-Federalists, pp. 103-09)   Bogus has turned the actual history upside-down. 

Finally, Bogus states:

In a democracy, however, the government is the people’s government. Of course, we did not all vote for whomever now sits in the White House and Congress. We are a large and vital democracy — not a village of Stepford wives — and there is much about which we disagree. The majority, moreover, can be wrong. Sometimes we are boiling mad, and with good reason.

And yet, if we are to preserve the Republic, we cannot see our own government as an enemy. That does not mean we should be a placid people.

We must be eternally vigilant about government errors and abuse. But we must recognize that differences of opinion are the normal order of things. In a constitutional democracy, we correct errors through constitutional means.

Much of this is true.  Trite, but true.  However, Bogus’ main thesis that there is no right to revolution where democracy, however defined, exists is not proven.  Indeed, the history of democracies shows us it is simply not true.  Powerful majorities within democratic systems have often acted in a tyrannical fashion towards the unalienable rights of weaker minorities, violating them often at will.  Being a minority, and democracy being democracy, how does their losing at the ballot box make their persecution acceptable?  How exactly did they lose the right to fight for their common human dignity?

If Dr. Bogus wants to make the argument that the government of today is simply not tyrannical by any rational standard of liberal democratic theory, I will agree wholeheartedly. 

However, I will never agree with his assumption that tyranny “can’t happen here.”  It can.

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2 Responses to No. Not Everyone Can Do Political Theory

  1. Bleepless says:

    Bogus has been on the wrong side of the firearms issue since Michael Bellesiles’ fraudulent book was a hot item. He still shows up in the law reviews making the same points in considerable detail.

  2. mRed says:

    “It can.” Your right, it can and that tyranny will be hastened by the re-writing of our Constitution such as Dr. Bogus attempts. Your points are well made.

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