Homeland Security Watch

News and analysis of critical issues in homeland security

September 17, 2011

Constitution Day and homeland security

Filed under: General Homeland Security — by Philip J. Palin on September 17, 2011

On September 17, 1787 the US Constitution — without the Bill of Rights and subsequent amendments — was adopted and signed by the Philadelphia Convention.  By July 1788 eleven of the states had adopted the new constitution.

North Carolina adopted the Constitution in late 1789 and Rhode Island joined the system, by a narrow vote, in May 1790. Each had waited for adoption of the Bill of Rights.

Unlike many national constitutions, the US document is short, sets out a basic structure, a few simple rules, and is silent on most details.  As such American constitutional principles have been an effective attractor of meaning for a complex adaptive system.

In another setting I have  recommended a homeland security oath that gives primacy to the Constitution:

I resolve to fulfill according to my ability and judgment this public commitment:

I will preserve and protect the Constitution of the United States of America.

I will apply all that I know to preserve and protect the people of the United States; I will keep them from harm and injustice.

I will increase my knowledge of threat, vulnerability, and consequence; seeking to deal responsibly and realistically with risk.

I will increase my knowledge of collaboration, deliberation, decision, and action; seeking to prevent harm and strengthen resilience.

I will honor the relationships that emerge from shared learning and doing.

I will embrace change and variability as susceptible to understanding, imagination, and creativity.

I will avoid mistaking personal preference for considered judgment and will daily endeavor to strengthen the humility, knowledge, awareness, and discipline whereby I may contribute, along with others, to a true and reasoned capacity to act with regard to what is good or bad for humankind.

The homeland we seek to secure has emerged from the Constitution. The homeland’s physical aspects have changed dramatically over time. What has largely persisted is the set of principles, simple rules, and relationships set out in the Constitution. The founders put in place effective processes for a certain sort of coming-to-be.

The profession of homeland security should not impede the ability of the people to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity.” Fundamental to being a homeland security professional in the United States should be to do no harm to the Constitution.

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Comment by William R. Cumming

September 17, 2011 @ 5:41 am

Always note that the Constitution opens with “We the People” not “We the States” and while certain parties in the USA wish the Confederacy had succeeded Lincoln’s formulation at least for the moment stands–of the People, by the People, for the People. Of course if SCOTUS keeps writing its ridiculous opinions ignoring prior SCOTUS decisions the formulation may well become “We the Corporations”!
Corporate socialism in the USA edges closer each day to FASCISM but so far fortunately without ethnic cleansing although who knows what the future holds. Or perhaps it will just read “WE the Banks”!

And Phil I like your recommended oath. Perhaps something should be added about messengers bearing bad news should not be killed.

Comment by Philip J. Palin

September 17, 2011 @ 7:44 am

Bill, Your comment highlights what I perceive to be a persistent and purposeful tension in the Constitution. I would even argue this tension animates much of the American narrative long prior to the Constitution being adopted.

The tension can be highlighted by contrasting the 10th Amendment with the 14th Amendment.

Famously, the Tenth states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

As famously the Fourteenth includes: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

I think the tension is real and can be helpful.

Comment by William R. Cumming

September 17, 2011 @ 8:11 am

Agree the tension was, is, and will be real for as long as the Constitution is the basic charter. In National League of Cities v. Usery the SCOTUS tried to breathe real life into the 10th Amendment but did not last long. The Supremacy Clause and the Commerce Clause and the provision for the Common Defense language in Article I Section 8 [often referred to as the tax and spend clause] and the 14th Amendment restricted a number of STATES in their efforts good and bad.

SCOTUS also uses PREEMPTION as a sometimes argument wherein at least theoretically federal law of such broad scope it has preempted a field such as a specific area of health and safety regulation. But SCOTUS is inconsistent even in that effort so that few know beforehand how SCOTUS will rule on any issue or policy. Even though SCOTUS once said NO Preemption unless specifically stated by Congress it continues to pick and choose wherein it will apply the doctrine.

The eratic performance of SCOTUS with its reams of 5-4 decisions is one reason that the Congress and Executive Branch remain off balance.

As far as Homeland Security issues and other related matters still no definitive comprehensive rulings since 9/11/01 that help all to understand either powers of the federal government in fighting terrorism foreign and domestic or the rights of individuals and protection of their privacy.

The mandatory purchase clause in the health reform act added at insistence of the Republicans may yet be the Trojan Horse that allows destruction of that statute. As some wit said of baseball umpires no pitcher or batter knows if it is a ball or a strike until called by the UMP. IN the meantime it is just a lump of hide spinning in space and landing one way or another.

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