Homeland Security Watch

News and analysis of critical issues in homeland security

December 3, 2013

The Constitution as Homeland: Part I

Filed under: General Homeland Security — by Philip J. Palin on December 3, 2013

This is the first in a series of anticipated posts closely reading the Constitution of the United States for homeland security implications.  Readers are encouraged to use the comment function to add background, analysis, exegesis or exposition related to the text highlighted.

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THE PREAMBLE

We the People of the United States, in Order 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, do ordain and establish this Constitution for the United States of America.

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Sovereignty — authority super (over) -an (all) persons and places — resides with the whole of the people.  These plural persons having authority even over the individual States.  This is, in the word of James Madison, the “Sovereignty of Society”.  It is a power that includes distribution, apportionment, and devolution of authority to diverse elements of society as the sovereign may from time to time decide is most efficacious, yet always retaining to the whole people the whole power.

This power and the purposes set out in the preamble being sufficient, according to Alexander Hamilton, to avoid a Bill of Rights which might be perniciously used to limit sovereignty to those rights specified rather than the fulsome power implied. (See Federalist 84)

This conceptualization of power especially emerging, I perceive, from the worldview and practice of dissenting churches in the American colonies wherein individuals abide in direct relationship with the Divine, personally responsible for fulfilling the New Covenant, freely able to enter (or not) into compacts with other individuals whereof society emerges from these companionable choices.

God is sovereign. Yet even the ultimate sovereign has delegated aspects of authority to subordinate systems, institutions and agents.  In our secular domain, the people are as God.  Except in the beginning (and sometimes still) those who are too young, too transient, too female, or enslaved.  Poverty can also be a complication.  Criminality as well.

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According to the Preamble, together with you I am sovereign. We are bound together in opportunity and its opposite.  Yet surely our sovereign dignity is diminished when I am presumed potentially treasonous (against myself?).   When I am or any of us are physically or digitally stopped and frisked — not for specific cause but just in case — this suggests, may even spawn, a reversal of authority: The sovereign We being relegated to minor characters rather than authors of our own scripts.

Government is established to serve society.  How does homeland security reflect the sovereignty of society?  Does homeland security usurp this sovereignty? We can consent to temporary self-limitation of our authority.  We can choose to reign rather than rule.  In the last decade (or longer?) have we done so?

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7 Comments »

Comment by William R. Cumming

December 3, 2013 @ 4:51 am

Excellent opener IMO! And Phil’s post also. The timing and general availability of the Federalist Papers would seem to indicate they were not widely read or influential at the time of adoption. They became more influential when the political “factions” dreaded by the first President arose.
And no mention of the word “freedom” in the opener and document generally. Given “slavery” how could the absence of “freedom” not be so. And no mention of “privacy”! Or of “public health and safety”!

Still a remarkable opener for not just the time but for history so far.

Sir John Keegen, British military historian, suggests in his writings that WWII is the largest event in human history [the last 10,000 years?] so far and for the next thousands. I would argue the U.S. Constitution far overshadows WWII!

But as President Lincoln said in his brief remarks at the dedication of the Gettysburg Battlefield Cemetery “can government of the people, by the people, for the people long endure?”

Comment by john comiskey

December 3, 2013 @ 8:37 am

The proper rationale for any government is to serve society. Government, however, in its best form is a necessary evil. In its worst form intolerable (Paine, 1776). See: http://www.constitution.org/tp/comsense.htm

The 2010 National Security Strategy integrated HLS (and military, education, health, economic) into national security.

IMHO, DHS and FEMA’s response and particularly its continued response to Superstorm Sandy is a slippery slope to a welfare state. See http://portal.hud.gov/hudportal/HUD?src=/sandyrebuilding

Affordable Health Care Act makes the slippery slope even more slippery. See Charles Krauthammer on Charlie Rose http://www.dailymotion.com/video/x17q0de_charlie-rose-charles-krauthammer_news

Krauthammer celebrates the nature and sovereignty of democratic politics. He noted, notwithstanding the vicissitudes of circumstance and happenchance, democratic rule is a great concept. He eloquently noted that Americans leaned to center right (cited Gallup). Americans applaud the notion of government as a safety net and not as cradle to grave government entitlement.

Government largesse can be coupled with digital frisking. See Benefit-Cost Analysis http://www.georgemasonlawreview.org/doc/Thierer_Website.pdf

We can also choose to govern democratically in the 21st century with rules suitable for the 21st century: shared governance, greater transparency (government, business), and 21st century self-reliance.

Comment by William R. Cumming

December 3, 2013 @ 10:15 am

I should have also mentioned “secrecy”! No use of the word in the Constitution and developed by implication!

Now almost all government programs, functions, and activities opaque except to the insiders and lobbyists.

Comment by William R. Cumming

December 3, 2013 @ 10:43 pm

A suggestion for some background reading on “Freedom”; “Privacy”; and “Secrecy”:

Professor Eric Foner’s classic on the Use of the Term “Freedom” in American History about 2006;

Ellen Alderman and Caroline Kennedy’s “The Right to Privacy” about 1995;

Senator Patrick Moniyhan “Secrecy” about 1997!

An Alderman and Kennedy also wrote “An Introdu

Comment by William R. Cumming

December 3, 2013 @ 10:46 pm

“An Introduction To the Bill of Rights”!

Law school roommates at Columbia and Ms. Kennedy now Ambassador to Japan!

Comment by William R. Cumming

December 4, 2013 @ 6:30 am

THIS IS A GROSS OVERSIMPLIFICATION BUT STILL:

Perhaps the leaders of the CSA [Confederate States of America] failed to correctly read the Preamble and instead read it as reading “WE THE STATES”!

Comment by William R. Cumming

December 4, 2013 @ 6:32 am

Of course SCOTUS reads the Preamble as “We the Corporations”!

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