Homeland Security Watch

News and analysis of critical issues in homeland security

February 27, 2014

The Constitution as homeland

Filed under: General Homeland Security — by Philip J. Palin on February 27, 2014

This is the twelfth 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.


Article. I.

Section. 2. (Third Paragraph follows)

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.


The number of Representatives elected from any state would be based on its population of free persons and temporarily indentured — male, female, and children — not including Indians.  “Other persons”, also known as slaves or chattel property, would be reflected at three-fifths their total number in deciding how many Representatives a state would be allotted.

The number of Representatives is also the major element in a state’s proportion in the Electoral College.

Until the Civil War the Three-Fifths clause significantly enhanced the influence of slave-holding states in the House of Representatives and in Presidential elections. If slaves had not been included in political enumeration the lower house would have been predominantly — and increasingly — anti-slavery in  sentiment.   Over the whole antebellum period the Three-Fifth’s clause gave slave-holding states about 20-to-25 percent more representation in the House than if only free people had been counted.

It has also been argued that from the end of Reconstruction until implementation of the 1964 Voting Rights Act the political agenda of the former slave-holding states was amplified by suppressing the vote of former slaves and their descendants, even as these citizens were now counted as “five-fifths” for Congressional and Electoral College purposes.

The clause in bold was altered by the Fourteenth Amendment, ratified in 1868.

Homeland Security funds are often critiqued as being “unequally” distributed among the states.   Strict equality among the states was rejected by the Philadelphia Convention and its Constitution.  Rather than equality between states, the Constitution seeks a rough balancing of the whole people’s diverse interests.

The Articles of Confederacy began with:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled… The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

The states sent delegates to Philadelphia.  The people of the United States made the Constitution. The Constitution set aside friendship among sovereign states for perpetual union emerging of popular sovereignty.  A war between the states eventually proceeded to confirm what the people had wrought.

The people are sovereign.  Thoughtfully — and thoughtlessly — we delegate, distribute, and redistribute our sovereignty among a variety of agents.  Today this includes the Department of Homeland Security.

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Comment by William R. Cumming

February 27, 2014 @ 8:31 am

Nice post! Democracy [our Republic] is threatened by Constitutional anomalies including the so-called GREAT COMPROMISE giving all States two US Senators.

Comment by Philip J. Palin

February 27, 2014 @ 9:49 am

Bill: I think you are probably much more a democrat than me. While the people’s sovereignty is, I think, reality and therefore worth fully acknowledging, I don’t perceive democracy — especially alone — is sufficient for a productive polity. Democratic processes — as in Egypt and Ukraine, perhaps even in our home state — can serve to magnify faults and factions inherent to whenever more than two or three are gathered. What I have found most admirable regarding the republican experience in the United States is the conscious cultivation of mediating institutions and compromises that serve to facilitate a sense of shared wholeness that — while never entirely accurate — is a kind of self-willed prophecy that can become true. In most societies a minority — especially a stubborn and self-righteous minority — requires MORE attention than the usually more reasonable majority. Without meaningful attention and political solicitation stubborn and self-righteous minorities can make life miserable for everyone. Again, see Egypt and Ukraine, as well as places closer to home. When homeland security tries to promote “whole community”, we ain’t just whistling Dixie… we ought to be remembering what happened in Dixie when the shared sense of whole community was shattered.

Comment by William R. Cumming

February 27, 2014 @ 10:58 am

Thanks Phil and respect our differences. Right now elites in the USA all about preserving their status not using their power for the good of the common man or woman or child but only to protect their status that most would desire to be hereditary for their descendants.

Do we really need Presidents to have the trappings of royalty?

Comment by E. Earhart

February 27, 2014 @ 7:45 pm

Mr. Palin, The people of the United States did not make the Constitution.

Mr. Cumming, It is not hard for some to see that right now we sit exactly where the AF believed we would end up. Instruments of ambitious men who ruled from on high and without restraint, burdening the citizens with taxes and military campaigns. They feared the corruption and tyranny that would follow when those in power felt little connection to the people they ruled over.

They feared a far away capital where wealth, power, and intrigue shaped behavior. The more elite isolated and powerful, the central government, the more neglected the people.

They feared a future distant capital filled with lawyers, lobbyist, and military heroes.

Patrick Henry, “Cato”, “John DeWitt”, “Federal Farmer”, and “Brutus”

Of course they lost, it was close, but they lost.

Comment by Philip J. Palin

February 28, 2014 @ 6:58 am

E. Earhart: I will briefly clarify my purposefully provocative statement: “The people of the United States made the Constitution.” At Philadelphia a significant majority of the delegates determined to base an expanded concept of the American nation on the claim that popular sovereignty in some important particulars supersedes state sovereignty. It was, as your comment outlines, a controversial claim. It was, however, an explicit claim. It was debated and discussed. It was adopted — with more and less enthusiasm — by majorities in every state. Those who lost may have been wiser, but that does not undo the informed and deliberate consent of the governed. Does it?

Comment by William R. Cumming

February 28, 2014 @ 9:35 am

Hoof beats of horses inside the castle walls at midnight always a worry. Its beginning to dawn on some that the corruption of elites [now seldom even well-educated] is beginning to exact its toll. Ukraine and Russia might yet demonstrate power to the people.

And to inject one thought in the discourse of Double E. and Phil were the Founders trying to design a bottom up process or a top down? I vote for the former but clear the rule of a mob feared by all!

Comment by Philip J. Palin

February 28, 2014 @ 10:35 am

Bill: Depending on the Framer both processes were sometimes preferred and in play.

Somewhere in recent months (but I can’t now recall where) I was reading a credibly cited source who suggested Madison left Philadelphia feeling defeated, perceiving they had mostly failed to resolve any of the great issues (on this count a letter to Jefferson was used as evidence). But after further reflection Madison began to recognize that — unintentionally, emerging organically of their deliberations — from their failure had emerged a perpetual process for managing ir-resolution. As a student of history and a practical politician Madison decided this could be profoundly useful.

I still remember as a very little boy, perhaps 9 or 10, listening to William F. Buckley conversing with Malcolm Muggeridge as the Englishman explained that the fundamental characteristic of a “proper” conservative was his (or her, I suppose) personal sense-of-sinfulness; which Muggeridge proceeded to argue prompted an innate humility, discouraged Utopian temptation, and facilitated the messy compromises necessary for actual governing. Hearing this was my liturgy-of-confirmation as a conservative.

More recently I was struck to read Dorothy Day offering a similar insight as a critique of her fellow progressives.

Human life is messy, if you are so-inclined: Fallen. Our Constitution has, perhaps of happy accident, embraced this reality and offers a framework wherein diverse understandings can — if never resolved — find some reconciling.

Comment by E. Earhart

February 28, 2014 @ 9:13 pm

Mr. Cumming and Mr. Palin,

Both sides believed in the what, consent of the governed; they disagreed as to the best how. Thus whichever side “won” they were assured of consent by the governed. So it is correct that informed and deliberate consent is not undone.

Today, I think that most people believe their consent rests in the votes they make . . . or choose not to make. I think having the choice/choices is key to consent.

As to bottom up or top down, I think the FFs leaned towards top down guys. The only thing Article 4, Section 4, Article 4, said was that the new federal government, “must guarantee to every State in this Union a Republican form of government.” i.e. some landowners had the right to send reps to a state/national capital. The right to vote (have the choice) did not appear in the Constitution until the 14th Amendment was ratified in 1868; women 1920, others much later.

A favorite line from Ben Franklin, “Today a man owns a jackass worth $50 dollars and is entitled to vote; before the next election, the jackass dies. The jackass is dead and the man cannot vote. Now gentleman, pray inform me, in whom is the right of suffrage, in the man or the jackass?”

They didn’t see it Ben’s way. Top Down?

Comment by William R. Cumming

March 1, 2014 @ 12:06 am

Thanks again for the additional comments.

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