Thomas Jefferson famously said (I paraphrase), “When the people fear the government, you have tyranny. When the government fears the people, you have liberty.” Whoever has the power to enforce their will is servant to the other.
This same point was made by Carroll Quigley, the prolific Georgetown historian of the Anglo-American establishment, evolution of civilizations, and weapon systems, and also mentor to Bill Clinton. In more than one place he noted
When weapons are cheap and easy to obtain and to use, almost any man may obtain them, and the organized structure of the society, such as the state, can obtain no better weapons than the ordinary, industrious, private citizen. This very rare historical condition existed about 1880, but is now only a dim memory, since the weapons obtainable by the state today are far beyond the pocktebook, understanding, or competence of the ordinary citizen.
When weapons are of the “amateur” type of 1880, as they were in Greece in the fifth century, B.C., they are widely possessed by citizens, power is similarly dispersed, and no minority can compel the majority to yield to its will. With such an “amateur weapons system” (if other conditions are not totally unfavorable), we are likely to find majority rule and a relatively democratic political system. But on the contrary, when a period can be dominated by complex and expensive weapons that only a few persons can afford to possess or can learn to use, we have a situation where the minority who control such “specialist” weapons can dominate the majority who lack them. In such a society, sooner or later, an authoritarian political system that reflects the inequality in control of weapons will be established.1
Again: when the people have more and better guns than the standing armies of government, then the government fears the people and you have greater freedom. When the government invests in specialized super-weapons and the specialists required to use them, then the people fear the government and you have tyranny. The principle is simple: there must be proper distribution of power in order to freedom to exist.
The same principle applies to the balance of powers between the branches of the federal government as well as between the federal government and the State governments. We see both cases clearly in American history, with one outstanding example coming in the confrontation between Supreme Court Chief Justice Roger Taney and the executive branch under Abraham Lincoln. The episode illustrates the Wxecutive use of armed military force in America, against Constitutional authority, and in the face of a federal court decision to the contrary.
At the outbreak of the Civil War, Lincoln responded to the skirmish at Ft. Sumter by arresting every outspoken Southern partisan he could get his hands on suspending their right to habeas corpus. One pro-Lincoln legal historian admits,
[W]ithout the sanction of legislation, the federal government arrested by the thousands men whom it knew or suspected to be dangerous or disaffected, and confined them without charges and without trial in military prisons as long as it saw fit—and public opinion generally acquiesced in this as a fairly necessary measure of war-time precaution. The number of such executive arrests has been variously estimated up to as high as 38,000. The War Department records, confessedly very incomplete, show over 13,000.2
The executive branch’s usurpation of an exclusively Congressional power—the suspension of habeas corpus—is admitted by most to have been unconstitutional, and thus “necessary” or popular are therefore irrelevant matters legally speaking. This was acknowledged at the time, and it did not take long for a test case to reach the Supreme Court. Chief Justice Taney immediately issued a writ of habeas corpus for John Merryman, an imprisoned lieutenant from the Maryland militia. General Caldwalader at Ft. McHenry rebuffed the delivery. Angered by the army’s defiance of the highest court of the land—not to mention the Constitution itself—Taney sent a federal marshal to arrest the General. Attempting to issue this second order, the marshal was refused entry to the Fort and thus returned to the court a second time unsuccessful. Taney then proceeded to try Merryman ex parte and found the arrest unconstitutional. In his famous decision Ex parte Merryman (1861), he lamented how the executive had installed the very type of military tyranny the founders feared and one worse than the British monarchies ever dreamed:
The people of the United Colonies, who had themselves lived under [the English constitution’s] protection, while they were British subjects, were well aware of the necessity of this safeguard for their personal liberty. And no one can believe that, in framing a government intended to guard still more efficiently the rights and liberties of the citizen, against executive encroachment and oppression, they would have conferred on the president a power which the history of England had proved to be dangerous and oppressive in the hands of the crown; and which the people of England had compelled it to surrender, after a long and obstinate struggle on the part of the English executive to usurp and retain it. . . .
If the president of the United States may suspend the writ, then the constitution of the United States has conferred upon him more regal and absolute power over the liberty of the citizen, than the people of England have thought it safe to entrust to the crown; a power which the queen of England cannot exercise at this day, and which could not have been lawfully exercised by the sovereign even in the reign of Charles the First.
He then explains the depth of the infraction on Lincoln’s part. This was no minor stunt, but a thorough and conscientious defiance of the U. S. Constitution:
[T]he military authority in this case has gone far beyond the mere suspension of the privilege of the writ of habeas corpus. It has, by force of arms, thrust aside the judicial authorities and officers to whom the constitution has confided the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered and executed by military officers.
His argument turns from analysis to warning:
These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.
This capstone to Taney’s argument arrives us at the point of our section: the question of how freedom was lost. It was lost among other instances when Lincoln used the army to override the constitution and the judiciary for several thousand individuals. At this point, it didn’t matter what any laws said; it mattered who had the guns to enforce their will. Taney’s last paragraph states, “I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome.” He was also lucky to escape himself: Lincoln had actually written an executive arrest order for the Chief Justice himself (!), but left it to the discretion of the marshal to carry it out.3 Apparently, neither had the nerve actually to go that far.
In this particular encounter, nevertheless, Lincoln had the guns; he had the standing army. Ironically, it was the very fabric he was cutting to pieces which had given him the swords with which to do so. In a very real sense, the Constitution devoured the Constitution—and with the very teeth of the military powers Hamilton and Washington spiked it with. Indeed, as Lincoln suspended habeas corpus and began arresting those thousands, he appealed directly to extra powers created by Hamilton and Washington in that old Militia Act of 1792. The former pair had not gone so far as to suspend other constitutional rights, but Lincoln was prepared to pick up where they left off, using the same mentality of necessity.
And the war games were just beginning.
- Carroll Quigley, Tragedy and Hope: A History of the World in Our Time (New York: Macmillan, 1966), 1200.(↩)
- James Parker Hall, “Free Speech in War Time,” Columbia Law Review 21/6 (Jun. 1921): 527–8. Cited also in Charles Adams, “Lincoln’s Presidential Warrant to Arrest Chief Justice Roger B. Taney ‘A Great Crime’ or a Fabrication?” January 5, 2004 http://www.lewrockwell.com/orig2/adams3.html (accessed Dec. 8, 2011).(↩)
- See Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (New York: Alfred A. Knopf, 1973.), 84n8. Cf. also Adams, “Lincoln’s Presidential Warrant to Arrest Chief Justice Roger B. Taney ‘A Great Crime’ or a Fabrication?” http://www.lewrockwell.com/orig2/adams3.html (accessed Dec. 8, 2011).(↩)