Homeland Security Watch

News and analysis of critical issues in homeland security

December 10, 2013

The Constitution as homeland

Filed under: General Homeland Security — by Philip J. Palin on December 10, 2013

This is the second 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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Our prior polity under the Articles of Confederation had proven insufficient.   There were many shortcomings — and threats of worse to come — emerging from the self-interest of individual States (and factions within each State) which ill-served the people as a whole.

James Madison gathered his thoughts, and the most credible critiques of the (original) Confederacy, in his Vices of the Political System of the United States.  The document includes:

The practice of many States in restricting the commercial intercourse with other States, and putting their productions and manufactures on the same footing with those of foreign nations, though not contrary to the federal articles, is certainly adverse to the spirit of the Union, and tends to beget retaliating regulations, not less expensive & vexatious in themselves, than they are destructive of the general harmony.

Hence the Commerce Clause and the role of economic union as a (necessary?) foundation of political union.

One fundamental means for advancing “general harmony” is to cultivate a political culture so expansive and diverse as to make factionalism a creative rather than destructive force.  In the same critique of the Confederacy Madison writes:

If an enlargement of the sphere is found to lessen the insecurity of private rights, it is not because the impulse of a common interest or passion is less predominant in this case with the majority; but because a common interest or passion is less apt to be felt and the requisite combinations less easy to be formed by a great than by a small number. The Society becomes broken into a greater variety of interests, of pursuits, of passions, which check each other, whilst those who may feel a common sentiment have less opportunity of communication and concert.

The profound paradox at the heart of the American notion of political union and personal freedom is prolific division and difference.  Our interests are so diverse and our opinions so disparate as to mitigate against a sustained political consensus by which a majority can continually oppress a minority.  Our Constitution anticipates, reflects, and nourishes variability as the best guarantor of prosperity and freedom.  As the beauty and resilience of a great garden depends on the abundant diversity of species and parts, so does our Union.

The prior polity had not been perfect.  The new polity has not been perfect. But the Constitution facilitates a perpetual process of forming a more perfect union.

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Implications for homeland security:

Diversity of opinion and practice is a source of economic and cultural strength, proof of freedom-in-action.

Jurisdictional diversity is a framework for protecting diversity of opinion and practice.

As a matter of constitutional predisposition we do not merely tolerate diversity but depend on diversity as the most effective breeder of freedom, therefore of creativity and adaptation, and thereby of strength and resilience.

Hence the preoccupation of homeland security with intergovernmental and private-public collaboration, of engaging the whole community, and a strategic focus on resilience.

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7 Comments »

Comment by JCOMISKEY

December 10, 2013 @ 4:36 am

The lesson that HLS did learn (from 9/11 and again from Katrina) is that effective intergovernmental affairs is a national imperative.

The 1955 Commission on Intergovernmental Affairs’ overarching finding is instructive:

Leave to private initiative all the functions that citizens can perform privately; use the level of government closest to the community for all public functions it can handle; utilize cooperative intergovernmental arrangements where appropriate to attain economical performance and popular approach; reserve National action for residual participation where State and local governments are not fully adequate, and for the continuing responsibilities that only the National Government can undertake. see: http://www.library.unt.edu/gpo/acir/Reports/Y3In87R29.pdf

More so is Sam Clovis’ 2006 collaborative federalism imperative:

Clovis argued that federalism and the activities associated with intergovernmental relations were fundamental to homeland security policy. The 2002 National Strategy for Homeland Security called for a common understanding of federalism by all parts of the government. Different levels of government, however, held different perspectives on federalism. All levels of government should aggregate, coordinate, and integrate their homeland security capabilities to ensure the greatest level of national preparedness.

Clovis noted that the Homeland Security Act of 2002 had brought together 22 separate organizations to form DHS. The agency was tasked to develop a national preparedness system. National preparedness, as outlined by Homeland Security Presidential Directive-8 (2003) was to be enhanced by a series of policies that would allow federal, state, local, and tribal governments to collectively and comprehensively address catastrophic events, especially those that were the results of terrorism. Preparedness was “the existence of plans, procedures, policies, training, and equipment necessary at the Federal, State, and local level to maximize the ability to prevent, respond to, and recover from major events.”

Collaborative federalism recognized that homeland security and particularly national preparedness were national issues requiring national solutions. The nation should aggregate, coordinate, and integrate their homeland security capabilities. First, Congress and its executive agent DHS should provide leadership, facilitation, and appropriate funding. Second, DHS should be an agent of subnational levels of government. Third, States and local governments should collaborate with jurisdictions both vertically and horizontally. The nation might achieve the best possible level of homeland security preparedness through collaboration. Failure to collaborate would lead to inefficiencies and a nation unnecessarily at risk. see: https://www.hsdl.org/?view&did=467451

DHS’s Quadrenial Homeland Security Review (2010) defined the homeland security enterprise as “the collective efforts and shared responsibilities of Federal, State, local, tribal, territorial, nongovernmental, and private-sector partners—as well as individuals, families, and communities—to maintain critical homeland security capabilities.” The term connoted a broad-based community with a common interest in the public safety and well-being of American society that was composed of multiple actors and stakeholders whose roles and responsibilities were distributed and shared (pp.viii-ix).

QHSR 2014 will likely retain the HLS enterprise definition. Still no consenus defintion of HLS. See Reese (2013)http://www.fas.org/sgp/crs/homesec/R42462.pdf

Comment by William R. Cumming

December 10, 2013 @ 8:19 am

Great post and comment!
Questions?
Let a thousand flowers bloom? Over 90,000 units of local government and over 500 federally recognized tribes, and 50 states, and over 200 federal entities! A chorus or a cacaphony?

Federalism! To be or not to be? Separate tax and Justice [injustice? systems! States control the machinery of voting! States charter corporations without disclosure of beneficial owners. No infrastructure cooperative systems-electric grid? The great Compromise–two Senators for every state? Laboratories of democracy or the lowest common denominator?

Are health, safety, educational systems, HS and EM restrictions on commerce or irrelevant locational factors?

Are Red and Blue state divisions a cultural divide or something else?

Does our current federal system promote or safeguard corruption?

Should all teenagers have cellphones but only after completing CPR and First Aid and swimming lessons?

What does being a citizen imply as to rights and responsibilities?

Comment by john comiskey

December 10, 2013 @ 8:31 am

IMHO, a Bill of Responsiblities needs to reside aside the Bill of Rights = whole community approach to HLS.

Comment by William R. Cumming

December 10, 2013 @ 9:14 am

In 1940 the STATES and their local governments had about 3 million employees and contractors. Largely related to public health, safety, and education!

Today almost 30 million!

Comment by Philip J. Palin

December 10, 2013 @ 1:00 pm

Bill and John, Many thanks for advancing the issue. A further consideration prompted by your comments: The Philadelphia Convention — and its product — is often characterized as reflecting contention between those who depended on “realistic” systems and those more inclined to focus on the need for “righteous” people. And the Realists are said to have won.

But when I read Madison and even Hamilton, I perceive the argument was not quite so binary. Certainly most of the Founders were (self)aware that ambition, greed, prejudice, and small-mindedness would play their usual roles in our political life. But they were also quite consciously attempting to craft a system that would give virtue its role and would nudge the typically double-minded toward more whole-hearted virtue. They did not presume their system could operate without virtuous impulses. They were depending on the human capacity for virtue as much as our capacity for the opposite.

The best men and women I have known in positions of power have been remarkably double-minded — sometimes seeming almost schizophrenic. It has seemed to me that it has been exactly their self-aware, ongoing, earnest struggle with profound faults that propelled them toward the transcendent.

I suppose the implication for homeland security might be that the enterprise, the system, the strategy (strategies), the polity ultimately depend on the intentions and capacities of the people involved. I think we know this is true. But if we only examined our systems, budgets, policies, and procedures we might conclude the people are merely “stakeholders” or “participants” or “survivors” or some other antiseptic functionary, rather than something much more complex. By taking this truth for granted, we subvert what we invest in the system, enterprise, strategies, etc.

Comment by William R. Cumming

December 10, 2013 @ 4:10 pm

Underlying the hope for a more perfect “union” was the need for Locke’s reasoned “order” to help dispel Hobbes’ “disorder”!
What is the state of nature?
the Biggs Hison?

Comment by William R. Cumming

December 10, 2013 @ 4:14 pm

The Higgs boson or Higgs particle is an elementary particle initially theorised in 1964, whose discovery was announced at CERN on 4 July 2012. The discovery has been called “monumental” because it appears to confirm the existence of the Higgs field, which is pivotal to the Standard Model and other theories within particle physics. It would explain why some fundamental particles have mass when the symmetries controlling their interactions should require them to be massless, and why the weak force has a much shorter range than the electromagnetic force. The discovery of a Higgs boson should allow physicists to finally validate the last untested area of the Standard Model’s approach to fundamental particles and forces, guide other theories and discoveries in particle physics, and potentially lead to developments in “new” physics.

AND NEWTON?

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