The Bill of Rights: Antipathy to Militarism
by
Jacob G. Hornberger,
Posted December 3, 2004
The Third Amendment to the U.S. Constitution provides that “no Soldier
shall, in time of peace be quartered in any house, without the consent
of the Owner, nor in time of war, but in a manner to be prescribed by
law.”
Obviously, the Third Amendment has little relevance today. But what is
relevant for us today is the mindset that underlay the passage of that
amendment — a mindset of deep antipathy toward militarism and standing
armies. Our ancestors’ fierce opposition to a powerful military force
was consistent with their overall philosophy that guided the formation
of the Constitution and the passage of the Bill of Rights.
While the Framers understood the need for a federal government, what
concerned them was the possibility that such a government would become a
worse menace than no government at all. Their recent experience with
the British government — which of course had been their government and
against which they had taken up arms — had reinforced what they had
learned through their study of history: that the biggest threat to the
freedom and well-being of a people was their own government.
Thus, after several years operating under the Articles of Confederation,
the challenge the Framers faced was how to bring a federal government
into existence that would be sufficiently powerful to protect their
rights and liberties but that would not also become omnipotent and
tyrannical.
Their solution was the Constitution, a document that would call the
federal government into existence but limit its powers to those
expressly enumerated in the document itself. Thus, a close examination
of the Constitution shows that the powers of the U.S. government
originate in it. The idea was that if a power wasn’t enumerated, federal
officials were precluded from exercising it.
Even that, however, was not good enough for our American ancestors. They
wanted an express restriction on the abridgement of what had become
historically recognized as fundamental and inherent rights of the
people. In other words, they wanted what could be considered an express
insurance policy for the protection of their rights. While government
officials could not lawfully exercise powers that were not enumerated in
the Constitution, the Bill of Rights would make the point even more
emphatically that federal officials had no authority to abridge the
fundamental rights of the people.
The Constitution provided other measures to protect against the rise of
omnipotent and tyrannical government. One was the division of government
into three separate branches, with the aim of establishing a system of
“checks and balances” that would prevent the rise of powerful
centralized government. Another was the Second Amendment, which ensured
that the people would retain the means of resisting tyranny or even
violently overthrowing a tyrannical government should the need arise.
Given their view that the federal government they were bringing into
existence constituted the biggest threat to their freedom and
well-being, constantly on the minds of our ancestors was the primary
means by which governments had historically subjected their people to
tyranny — through the use of the government’s military forces. That is
the primary reason for the deep antipathy that the Founders had for an
enormous standing military force in their midst. They understood fully
that if such a force existed, their own government would possess the
primary means by which governments have always imposed tyranny on their
own people.
Using armies for tyranny
Historically, governments had misused standing armies in two ways, both
of which ultimately subjected the citizenry to tyranny. One was to
engage in faraway wars, which inevitably entailed enormous expenditures,
enabling the government to place ever-increasing tax burdens on the
people. Such wars also inevitably entailed “patriotic” calls for blind
allegiance to the government so long as the war was being waged.
Consider, for example, the immortal words of James Madison, who is
commonly referred to as “the father of the Constitution”:
Of all the enemies to public liberty war is, perhaps, the most to be
dreaded, because it comprises and develops the germ of every other. War
is the parent of armies; from these proceed debts and taxes; and armies,
and debts, and taxes are the known instruments for bringing the many
under the domination of the few. In war, too, the discretionary power of
the Executive is extended; its influence in dealing out offices,
honors, and emoluments is multiplied; and all the means of seducing the
minds, are added to those of subduing the force, of the people....
[There is also an] inequality of fortunes, and the opportunities of
fraud, growing out of a state of war, and ... degeneracy of manners and
of morals.... No nation could preserve its freedom in the midst of
continual warfare.
The second way to use a standing army to impose tyranny was the direct
one — the use of troops to establish order and obedience among the
citizenry. Ordinarily, if a government has no huge standing army at its
disposal, many people will choose to violate immoral laws that always
come with a tyrannical regime; that is, they engage in what is commonly
known as “civil disobedience” — the disobedience to immoral laws. But as
the Chinese people discovered at Tiananmen Square, when the government
has a standing army to enforce its will, civil disobedience becomes much
more problematic.
Consider again the words of Madison:
A standing military force, with an overgrown Executive will not long be
safe companions to liberty. The means of defence agst. foreign danger,
have been always the instruments of tyranny at home. Among the Romans it
was a standing maxim to excite a war, whenever a revolt was
apprehended. Throughout all Europe, the armies kept up under the pretext
of defending, have enslaved the people.
The idea is that governments use their armies to produce the enemies,
then scare the people with cries that the barbarians are at the gates,
and then claim that war is necessary to put down the barbarians. With
all this, needless to say, comes increased governmental power over the
people.
Sound familiar?
The Founding Fathers
Here is how Henry St. George Tucker put it in Blackstone’s 1768
Commentaries on the Laws of England:
Wherever standing armies are kept up, and when the right of the people
to keep and bear arms is, under any color or pretext whatsoever,
prohibited, liberty, if not already annihilated, is on the brink of
destruction.
Virginian Patrick Henry pointed out the difficulty associated with
violent resistance to tyranny when a standing army is enforcing the
orders of the government:
A standing army we shall have, also, to execute the execrable commands
of tyranny; and how are you to punish them? Will you order them to be
punished? Who shall obey these orders? Will your mace-bearer be a match
for a disciplined regiment?
When the Commonwealth of Virginia ratified the Constitution in 1788, its
concern over standing armies mirrored that of Patrick Henry:
... that standing armies in time of peace are dangerous to liberty, and
therefore ought to be avoided, as far as the circumstances and
protection of the community will admit; and that in all cases the
military should be under strict subordination to and governed by the
civil power.
Virginia’s concern was expressed by North Carolina, which stated in its Declaration of Rights in 1776,
that the people have a Right to bear Arms for the Defence of the State,
and as Standing Armies in Time of Peace are dangerous to Liberty, they
ought not to be kept up, and that the military should be kept under
strict Subordination to, and governed by the Civil Power.
The Pennsylvania Convention repeated that principle:
... as standing armies in time of peace are dangerous to liberty, they
ought not to be kept up; and that the military shall be kept under
strict subordination to and be governed by the civil power.
The U.S. State Department’s own website describes the convictions of the Founding Fathers regarding standing armies:
Wrenching memories of the Old World lingered in the 13 original English
colonies along the eastern seaboard of North America, giving rise to
deep opposition to the maintenance of a standing army in time of peace.
All too often the standing armies of Europe were regarded as, at best, a
rationale for imposing high taxes, and, at worst, a means to control
the civilian population and extort its wealth.
In fact, as Roy G. Weatherup pointed out in his excellent article,
“Standing Armies and Armed Citizens: A Historical Analysis of the Second
Amendment” (
www.saf.org/journal/
1_stand.html), the abuses of their government’s standing army was
one of the primary reasons that the British colonists took up arms
against that army in 1776:
[The Declaration of Independence] listed the colonists’ grievances,
including the presence of standing armies, subordination of civil to
military power, use of foreign mercenary soldiers, quartering of troops,
and the use of the royal prerogative to suspend laws and charters. All
of these legal actions resulted from reliance on standing armies in
place of the militia.
Moreover, as William S. Fields and David T. Hardy point out in their
excellent article, “The Third Amendment and the Issue of the Maintenance
of Standing Armies: A Legal History” (
www.saf.org/LawReviews/FieldsAnd Hardy2.html),
the deep antipathy that the Founders had toward standing armies
followed a long tradition among the British people of opposing the
standing armies of their king:
The experience of the early Middle Ages had instilled in the English
people a deep aversion to the professional army, which they came to
associate with oppressive taxes, and physical abuses of their persons
and property (and corresponding fondness for their traditional
institution the militia). This development was to have a profound effect
on the development of civil rights in both England and the American
colonies.... During the seventeenth century, problems associated with
the involuntary quartering of soldiers and the maintenance of standing
armies became crucial issues propelling the English nation toward civil
war.
Did the antipathy against standing armies mean that our ancestors were
pacifists? On the contrary! After all, don’t forget that they had only
recently won a violent war against their own government and its enormous
and powerful standing army.
In their minds, the military bedrock of a free society lay not in an
enormous standing army but rather in the concept of the citizen-soldier —
the person in ordinary life in civil society who is well-armed and
well-trained in the use of weapons and who is always ready in times of
deepest peril to come to the aid of his country — but only to defend
against invasion and not to go overseas to wage wars of aggression or
wars of “liberation.” As John Quincy Adams put it in his July 4, 1821,
address to Congress, America “does not go abroad, in search of monsters
to destroy.”
U.S. foreign policy
Are the ideas and principles of the Founding Fathers relevant today?
They couldn’t be more relevant. Many decades ago, President Dwight
Eisenhower warned us about the growing power of the military-industrial
complex in American life. Unfortunately, the American people failed to
heed his warning. The result has been an ever-growing military cancer
that is bringing death, ruin, shame, and economic disaster to our nation
— just as our Founding Fathers said it would.
More and more people are finally recognizing that the anger and hatred
that foreigners have for the United States is rooted in morally
bankrupt, deadly, and destructive foreign policies — policies that have
been enforced by America’s enormous standing military force. The
resulting blow-back in terms of terrorist attacks, such as those on the
World Trade Center in 1993 and 2001, have been used as the excuse for
waging more wars thousands of miles away, and those wars have produced
even more anger and hatred, with the concomitant threat of even more
terrorist counter-responses. All that, in turn, has provided the excuse
for more foreign interventions, ever-increasing military budgets,
consolidation of power, increasing taxes, and massive infringements on
the civil liberties of the American people.
It is not a coincidence that the president’s indefinite detention and
punishment of American citizens for suspected terrorist crimes without
according them due
process, habeas corpus, right to counsel, jury trials, freedom of
speech, or other fundamental rights guaranteed by the Constitution and
the Bill of Rights are being enforced by the standing army that our
ancestors warned us against. And make no mistake about it: Given orders
of their commander in chief, especially in a “national security crisis,”
to establish “order” in America, U.S. soldiers will do the same thing
that soldiers throughout history have done — they will obey the orders
given to them. Just ask the survivors of the massacre at the Branch
Davidian compound at Waco or the victims of rape and sex abuse at Abu
Graib prison in Iraq or Jose Padilla, an American citizen who is
currently in Pentagon custody, where he has been denied due process,
habeas corpus, and other rights accorded by the U.S. Constitution.
In determining the future direction of our nation, the choice is clear:
Do we continue down the road of empire, standing armies, foreign wars
and occupations, and sanctions and embargoes, along with the taxes,
regulations, and loss of liberty that inevitably come with them? Do we
continue a foreign policy, enforced by the U.S. military, that engenders
ever-increasing anger and hatred among the people of the world, which
then engenders violent “blowback” against Americans, which is in turn
used to justify more of the same policies?
Or do we change direction and move our nation in the direction of the
vision of our Founding Fathers — toward liberty and the restoration of a
republic to our nation — toward a society in which the government is
limited to protecting the nation from invasion and barred from invading
or attacking foreign nations — a world in which the United States is
once again the model society for freedom, prosperity, peace, and harmony
— a nation in which the Statue of Liberty once again becomes a shining
beacon for those striving to escape the tyranny and oppression of their
own governments?
Jacob Hornberger is founder and president of The Future of Freedom Foundation. Send him email.
This article was originally published in the September 2004 edition of Freedom Daily.