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Federalist 23-29: Freedom, and the national security state

Find all my Federalist Papers blog posts here.

There's a conservative narrative of the last 100 years or so that goes something like this: America started to become a little less free -- a little less tethered to its Constitution -- about the time that Franklin D. Roosevelt took power during the Great Depression and started creating the welfare state. Every new entitlement -- "ObamaCare," say -- and every slight tax increase represents a near-tyrannical intrusion of the state into realms that should be private. Every time a Medicare check goes out, then, freedom dies a little more and somewhere in the great beyond, Friedrich Hayek sheds a tear. Or maybe Ayn Rand.

There's an alternative narrative -- one that doesn't get as much attention -- and in the last year it's been most famously advanced by onetime conservative author Garry Wills. In this reading of history, it was indeed Franklin D. Roosevelt who expanded the state at the expense of the individual -- but it wasn't Social Security that represented tyranny: It was the explosive growth of the national security state, which since World War II has granted the president ever greater -- and, seemingly, ever-more-uncheckable -- power, all in the name of protecting America from her enemies.

Which brings us back to 200 years ago, and the adoption of the Constitution. Its passage, it seems, was no sure thing, and the central issue in the debate between Federalists and Antifederalists, it seems, was freedom: What form of government would be effective, yet still allow men -- and it was men who had the freedom -- the latitude to live their lives as they pleased?

There's not much in either the Federalist or the Antifederalist papers to suggest that the welfare state was a concern in the debate over freedom. To be fair, partisans on both sides probably hadn't conceived of it. Instead, they clashed over a controversial power of the new goverment: The power to raise a standing army.

"Brutus" writing in Antifederalist 24, made the case plain:

. . . . Standing armies are dangerous to the liberties of a people. . . . [If] necessary, the truth of the position might be confirmed by the history of almost every nation in the world. A cloud of the most illustrious patriots of every age and country, where freedom has been enjoyed, might be adduced as witnesses in support of the sentiment. But I presume it would be useless, to enter into a labored argument, to prove to the people of America, a position which has so long and so generally been received by them as a kind of axiom.

This, it seems, was an argument the Federalists took seriously. Alexander Hamilton spent all of Federalist 23 through 29 defending the government's prerogative to raise a standing army. And he made some decent arguments -- pointing out, not unreasonably, that most state governments at the time were empowered to raise armies, and that furthermore the "Western frontier" of the United States, still confined to those early 13 coast-hugging colonies, was in need of defense. If an invasion came,it would already be too late to form an army to repel the attack. And in Federalist 25, he even makes the odd argument that it's safe to let the federal government raise a standing army precisely because Americans would be suspicious of infringement on their liberties:

As far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.

Hamilton's strongest argument against a standing army being used to usurp American liberties, though, comes from the structure of the government itself. The chief executive might be willing to use the army for nefarious purposes, he says, but then he'd have to contend with Congress!

Federalist 24:

the whole power of raising armies was lodged in the legislature, not in the executive; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.

From this, we can gather a few things:

* That Hamilton didn't really forsee that the executive branch -- despite the division of powers enumerated in the Constitution -- would claim for itself practically unlimited and unilateral power over national security.

* Nor did he forsee that Congress would generally defer to the executive's assertion of authority.

* Then again, none of the folks involved really foresaw the explosive growth of a national security state that involves hundreds of thousands of people collecting snooping and spying on, well, pretty much all electronic communication on Planet Earth. Concerns about a "standing army" seem almost quaint, don't they.

One wonders what Brutus or Alexander Hamilton would've made of today's lead story in the Washington Post, and these findings:

* Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.

* An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.

* In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings - about 17 million square feet of space.

There are reasons for all of this, of course. We want to be kept safe from the threats the world aims at us. The result is that we have a huge -- and, because it is so huge, virtually unchecked -- national security establishment that operates in the shadows, out of the public's sight. Alexander Hamilton promised us that Congress would keep the leviathan in check. It hasn't. Do you feel any more free?

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