Homeland Security Watch

News and analysis of critical issues in homeland security

February 18, 2014

The Constitution as homeland

Filed under: General Homeland Security — by Philip J. Palin on February 18, 2014

This is the eleventh in a series of 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 reproduced immediately below.

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Article. I.

Section. 2.

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

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Elections every two years ensures that the House will tend to be responsive to popular opinion.  There were some at Philadelphia who recognized this could be a source of turmoil as much as crowd-wisdom.  Hence the longer terms of the Senate and life appointments to the judiciary.  Each a piece in a complex system seeking optimum balance.

Prior to the Fourteenth Amendment‘s “equal protection” clause, individual states were expected to differ in a wide range of ways, including voter qualifications.  Someone who could vote for a Congressman in Massachusetts might not be allowed to vote in Texas.  Plenty of other differences abounded, the legality of slavery (or not) probably being most prominent.

The Civil War and constitutional amendments emerging from Union victory shifted these legal foundations.  It took a century more of political, cultural and legal give-and-take to practically shift the power-balance from individual states to the federal government.   But over the last half-century time-and-again when the federal government has decided to assert “equal protection” it has generally trumped other aspects of law and practice.

In the natural world the most resilient systems generally have a “strong (or strange) attractor of meaning” around which self-organization emerges.  Self-organization seems to be most robust when diverse behavior is maximized or in-other-words there is significant freedom of individual actors to engage each other and the attractor.

Does this reasonably describe federal-state-local-private behavior in homeland security?  Why or why not?

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Regarding the age requirement for the House of Representatives: The average age of delegates to the Philadelphia Convention was 42 and four of the most influential delegates — Alexander Hamilton, Edmund Randolph, Gouverneur Morris and James Madison — were in their thirties.

The average age of current members of the House is fifty-seven.

I don’t immediately perceive any specific homeland security implications, but it seemed sufficiently interesting to share.

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5 Comments »

Comment by John Comiskey

February 18, 2014 @ 7:24 am

Constitutional Collaboration –A HLS Imperative

DHS’s 2005 Interim National Preparedness Goal claimed that “our country consists of thousands of sovereign governments who all play a part some larger than others – in security our homeland.” (p.iii) The goal implies much about significant freedom and less about self-organizing behavior.

The Commission on Intergovernmental Affairs, Major League Baseball, and Sam Clovis provide examples of self-organizing behavior that describe federal-state-local-private behavior in HLS.

In 1953, the Commission on Intergovernmental Affairs was established to conduct an intensive study of National, State, and local relationships. The commission noted that their undertakings were the first of its kind since the Constitutional Convention in 1787. They maintained that “precise divisions of governmental activities need always to be considered in light of varied and shifting circumstances and in light of principles rooted in American history.
The federal system was not a “neat system” and not easy to operate. Efficient and responsible government at all levels-National, State, and local divided our civic responsibilities so that we:

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.(p.6)

MLB fans sing the National Anthem and “Take Me Out to the Ball Game” at every game. In the first instance, they pay homage to their homeland. In the second instance, the same fans (at least the home team fans) root for their hometown (home team). While Toronto Blue Jay fans sing a different national anthem, they too root for their hometown and consume the same peanuts and crackerjacks.

In 2006, Sam Clovis’ “Federalism, Homeland Security, and National Preparedness” provided the most cogent argument and how to for HLS collaboration that I know of. He argued that three theories of federalism uneasily coexist: cooperative federalism, coercive federalism, and competitive federalism. Each confronts homeland security policy makers and practitioners with challenges related to acknowledging perspectives that might differ significantly from their own.

Cooperative federalism is a governance arrangement wherein the role of each level of government was negotiated. The theory devolves from dual-federalism theory. Dual-federalism holds that federal and state governments respectively provide those public goods and services accorded to them by the Constitution. Cooperative federalism is a political response to the challenges of market failure and social issues. Grant-in-aid programs incidentally and incrementally allow the national government to preempt state and local prerogatives. The programs become a major mechanism for ensuring that national priorities are accomplished. Federal grant-in-aid programs are perceived as a means to ensure that national priorities receive national attention.

Coercive federalism is an ever-expanding central government empowered by grant-in-aid regulatory schemes. States and local governments become dependent on federal funding. The funding, however, is short-term or limited and morphs into unfunded mandates. Paradoxically, the grants create financial burdens for state and local governments. Despite legislation to remedy unfunded mandates, the proliferation of categorical grants remains unabated.

Competitive federalism equates regional and local governments to markets that compete for investor-citizens who chose which regional or local government to live under. The theory is based on public choice theory of economics that applies economic theories to the analysis of political behavior. There are four tenets of competitive federalism. First, citizens cooperate through the exchange of goods and services. Two or more states may find it mutually advantageous to join forces to accomplish common purposes. Second, consumer-voters reveal to their representatives their preferences by electing officials who act on those preferences or may leave the jurisdiction that does not support their preferences. Third, the more homogenous a population: the clearer the preferences. Fourth, the decentralization of power to the level where the tax base equals the geography of the services provided leads to the most efficient uses of resources in the public domain. The idea that the political processes at the state and local levels are roughly analogous with competitive market behaviors is compelling. As state and local governments become more professional and capable, competitive influence at the state and local levels will increase.

Clovis concludes that homeland security theory should be predicated on a new mutation of federalism –collaboration predicated on the notion that homeland security is a national issue requiring national solutions. Congress and its executive agent DHS should provide leadership, facilitation, and appropriate funding. DHS should be an agent of subnational levels of government. States and local governments should collaborate with jurisdictions both vertically and horizontally. Their collaborative efforts should aggregate, coordinate, and integrate their homeland security capabilities. Thereby, the nation will achieve the best possible level of homeland security preparedness.

Comment by Philip J. Palin

February 18, 2014 @ 8:13 am

John: Wow. That’s an impressive and helpful integration-and-analysis (combining those two seldom enough achieved). I hope this is a cut-and-paste from your dissertation, if so the final draft will be a big help to all of us.

At the close you reference Clovis (you may hold a different personal view?). While it is hard to deny that homeland security is a “national issue”, I worry about how some may translate this reasonable conclusion. I notice it is not uncommon to begin discussions with collaboration, which somehow morphs into coordination, and more often than not seems to end with control.

Clovis is clearly not saying this. I expect you would not. But the 14th Amendment seems to have come to mean when push-comes-to-shove, centralization wins. Perhaps more than anything Constitutional, there is a “modern” (though probably pre-Quantum) mythology of efficiency that gathers us together at the river (and other risky venues).

I’m not sure yet, but my Thursday post is likely to meditate on concentration of people, products, and power. I am largely a creature of the Acela Corridor, the most concentrated place in America. Just spent a fabulous weekend in Philadelphia. I enjoy the many benefits of concentration.

But the trade-offs can be — perhaps inevitably will be — catastrophic, in a technical meaning of the term. See Ted Lewis’ online piece (via Bellavita’s post today) and his Bak’s Sandpile or go directly to Bak (and Paczuski)

Our Framers in Philadelphia devised a schema that distributed power… and until 1861 regularly redistributed it to avoid catastrophe (which a fatalist might say came anyway and moralists have criticized as too-long-delayed). Now we more or less purposefully concentrate what we would probably be wiser to widely disseminate. Can we, at least in homeland security, conceive and carry-out a policy-and-strategy more self-aware and resilient?

EDITORIAL NOTE AND QUESTION: With the happy return of Chris Bellavita to HLSWatch I will return to mostly posting on Thursday’s. I had originally intended my Tuesday “constitutionals” to be a quick and easy way to handle Bellavita’s hiatus. Reader responses have, however, been more positive, frequent, and substantive than I anticipated. Should I continue this close-reading of the Constitution on Thursdays?

Comment by John Comiskey

February 18, 2014 @ 9:13 am

Phil,

Collaboration has become a buzzword in many domains. The worry is that people will claim to collaborate and do so mostly nominally. Part of the problem is that in our data-centric world, it is difficult to measure collaboration.

When push comes to shove centralization, does win. With centralization comes what Clovis referred to as “grant crack.” He used that term at a lecture I attended at the Center for Homeland Defense and Security.

Certainly money makes centralization more palatable.

Do continue the close-reading of the Constitution and welcome back Chris.

Comment by William R. Cumming

February 18, 2014 @ 9:53 am

Again great subject for post and great comments!

I have always wondered exactly what these words quoted by Phil from the Constitution mean:

“the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”

This is because I thought the popular vote in each Congressional district determines the winner?

It is clear that the ultimate source of the STATES power in the federal system is that they usually still determine voter qualifications, who votes, and counting the ballots even for the Presidency and the Members of Congress. I argue this is largely a corrupt system and federal law should absolutely control federal elections. Many no doubt will disagree!

It is in fact and law the case that the events of 9/11/01 revealed again a huge whole in our system of Continuity of Government [COG]!

And the consensus of experts testifying in Congressional hearings was unanimous. Amend the Constitution to deal with problem revealed.

We probably will never know the ultimate destination of Flight 93 on 9/11/01. WH or the Capitol. My choice like Tom Clancy in one of his novels is the Capitol although Tom picked the State of the Union address for the attack.

So what is the problem? If a large number of Senators had been killed or disabled they can be immediately be replaced for the rest of their term by the respective State’s Governors. Not so the members of the House of Representatives. Constitutional scholars all seem to agree new members have to be elected to replace them. This could result in huge delays and a House rendered missing inn action.

I vote with the scholars and COG experts-a brief amendment to the Constitution is needed.

Comment by William R. Cumming

February 18, 2014 @ 10:05 am

Further:

1. Welcome back Chris!

2. Keep posting from time to time Phil on the Constitution!

3. The 14th Amendment is worth its own post!

4. Sam Clovis running in IOWA for US Senator under the Republican flag. Perhaps the first chairman on my recommended permanent committee [joint?] on federalism?

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