Remarks on the Third Amendment: “No soldier shall, in time of peace, be quartered in any house, without consent of the Owner, nor in time of war, but in a manner prescribed by law.”

Originally published by Constituting America. March 7, 2012.

 

Supreme Court Justice Joseph Story, author of perhaps the best commentary on the U. S. Constitution, wasted little ink on the Third Amendment. “This provision speaks for itself.” So it does, but a few words of background information can explain why the United States Congress and the people they represented thought it worth adding.

During the French and Indian War the British found themselves harried by what we would not call guerrilla strikes. They had some regular army bases—some of the best of them along the border with Quebec. But given the character of the war they were fighting they needed to move forces quickly into undefended areas to counter French and Indian raiders. And so they would occupy an unsecured and threatened area—protecting the lives and property of the local citizens in exchange for the commandeered use of the locals’ property for that purpose.

After the war, this practice (as our saying now goes) got old in a hurry. By 1765, Benjamin Franklin complained that “there are no want of barracks in Quebec, or any part of America; but if an increase of them is necessary, at whose expense should that be?” Surely not that of private citizens. To Franklin’s complaint about property rights, Samuel Adams added a political one: “Where military power is introduced, military maxims are propagated and adopted, which are inconsistent with and must soon eradicate every idea of civil government.” By occupying the property of private landowners, the British Army acted as if a law unto itself.

Colonists’ outrage heightened in Adams’s own Boston, where the early stirrings of armed resistance to the British military presence provoked Parliament to pass the Intolerable Acts (as the colonists called them), making any public gathering an act of treason and formally providing for quartering troops in private homes. Upon founding the Union in 1774, Americans saw their representatives in the Continental Congress pass a law in favor of “the better providing suitable quarters for officers and soldiers in his majesty’s service, in North America”; this same Congress simultaneously protested the way in which the British government actually did quarter the troops. Once resolved upon independence, the colonists listed the British practice among the grievances proving the tyrannical character of George III’s rule.

The lack of such a provision numbered among the several complaints lodged against the 1787 Constitution by the Anti-Federalists during the ratification fight. After the Constitution passed—barely, in several states—James Madison and the first United States Congress took up the matter of amendments. One of the strongest advocates of what would become the Third Amendment was Thomas Sumter of South Carolina; as a Patriot military commander during the war, the Carolina Gamecock had won his nickname by inducing Lord Cornwallis to get out of the deep South, moving on toward his unlucky fate at the hands of George Washington and the French Navy at Yorktown, Virginia. Beyond property rights and politics, Sumter went to the heart of the matter: Property occupied by soldiers “would lie at the mercy of men irritated by a refusal”—men expecting obedience to the orders they issue—”and well disposed to destroy the peace of the family.” With than gentlemanly description of ungentlemanly conduct ringing in their ears, the Congressmen gladly passed the amendment.

Notice the important caveat. Times of extreme emergency may require the risk and burden of quartering troops in private homes. Accordingly, Congress provided that the practice might be renewed by legislative act. The lives, liberties, and property of American citizens, even the sanctity of the family, might under certain conditions be more at risk from an enemy force than from the forces charged to defend them. Then and only then would a Congress or a state legislature dare to enact such a measure.

Although one shouldn’t read too much into the order of the first ten amendments (famously, the First Amendment is first only by accident), the placement of the Third Amendment does make good sense. It follows the Second Amendment stipulation of the right to bear arms; an American household can usually defend itself if family members are rightly armed and trained. It precedes the Fourth Amendment’s stipulation of security against unreasonable searches and seizures. The right to be free of military occupation in one’s own home from one’s own citizen-army sits well between the rights of self-defense and the orderly rule of law respecting property.

On the First Amendment Right to Peaceably Assemble: “Congress shall make no laws…abridging the Right of the People to Peaceably Assemble.”

Originally published by Constituting America. February 29, 2012.

 

Free worship; free speech; freedom to publish; and the rights of the people to assemble peaceably and to petition their government: We cherish our First Amendment freedoms but we may not see how intimately they support one another, how much they need each other.

Free worship means that I may listen to the most important things, the first principles that govern my life, without fear of persecution. These principles will anchor my conduct, providing me the standards by which I may judge my own actions and those of others. Free speech and freedom to publish means that I may safely tell people what I think, having worshipped—that is (among other things) having thought.

But what good would my worship, my speaking, and my writing be—beyond those who happen to worship with me, or hear me speak, or read my writings (small numbers all!)—if I and my fellow citizens had no right to get ourselves organized, to get the attention of our elected representatives, to do things that have real effects in our public life? Some good, but not much good.

The right to assemble in public has not prevailed in most places, in most times. Public assemblies endanger rulers. They can endanger the peace. During the virulent civil wars of England, fought over intractable issues of religious conviction, what sensible king would not view such gatherings with fear and suspicion? In his Letter Concerning Toleration the great English philosopher John Locke acknowledged that assemblies of men had often been “nurseries of faction and sedition.”

But Locke went on to write that this was so only because “the unhappy circumstances of the oppressed or ill-settled liberty” make such men violent. In an atmosphere of genuine religious toleration—of well-settled liberty—this need not be so. After all, he argued, do men not meet peaceably every day in local markets? Do they not circulate freely on the streets of cities? Why then do rulers fear religious assemblies? “Let us deal plainly,” Locke writes. “The magistrate is afraid of other churches, but not of his own; because he is kind and favorable to the one, but severe and cruel to the other.” But “let him let those dissenters enjoy but the same privileges in civil as in other subjects, and he will quickly find that these religious meetings will no longer be dangerous…. Just and moderate governments are everywhere quiet, everywhere, safe; but oppression raises ferments and makes men struggle to cast off an uneasy and tyrannical yoke.”

The Framers of the United States Constitution concurred, and extended the right to assemble to political gatherings, as well.

Thomas Jefferson knew his Locke. In the summer of 1774 he addressed his fellow citizens on British General Thomas Gage’s proclamation in Massachusetts, “declaring a Treason for the Inhabitants of that Province to assemble themselves to consider of their Grievances and form Associations for their common Conduct on the Occasion.” Gage was Commander in Chief of his Majesty’s army in America; his “odious and illegal proclamation must be considered as a plain and full Declaration that this despotick Viceroy will be bound by no Law, nor regard the constitutional Rights of his Majesty’s Subjects, whenever they interfere with the Plan he has formed for oppressing the good People of the Massachusetts Bay.” When Jefferson and his colleagues in the Continental Congress met two years later to issue their own proclamation—for independence and against tyranny—they never forgot that the right to assemble peaceably gives a people the way to carry their thoughts and speeches into civic action.

Fifteen years almost to the day on which Jefferson spoke, the House of Representatives debated the first ten amendments to the newly-ratified federal constitution. The floor manager for the amendments was Jefferson’s closest political ally, James Madison. In the course of the debates the Congressmen showed that they understood matters exactly as Jefferson had done. “If people converse, together, they must assemble together,” one Member quite sensibly remarked. But more, “the great end of meeting”—the purpose—”is to consult for the common good; but can the common good be discerned” unless “the object is reflected and shown in every light.” That is, I may revolve a topic in my own mind a thousand times, but when I share my thoughts with others I will begin to see things I had overlooked. This is the advantage of deliberation in common over mulling things over by oneself. Still further, as another Member observed, “Under a democracy, whose great end is to form a code of laws congenial to the public sentiment, the popular opinion ought to be collected and attended to.” We not only need to think; once our thoughts have been refined and augmented by the thoughts of others, we then need to get the attention of those who can do something about the things upon which we have resolved. The Congressmen knew that writing a letter to one’s Congressman will likely have far less effect than a petition signed by dozens—the product of a public assembly of citizens. Therefore, the same Member concluded, “the people have the right to consult for the common good.”

When the French political philosopher and parliamentarian Alexis de Tocqueville traveled through America half a century later, he remarked on the importance of civil associations to American self-government. Under the old states of Europe, the class of people who stood between the central state powers and the people had been the aristocrats—the same class that forced the Magna Charta on the King of England. But in the modern world, Tocqueville saw (he being an aristocrat), aristocracy was declining. Absent such a class, who or what could stand in the way of an oppressive central government tyrannizing the people? Would democracy collapse upon itself, with the people first setting up a government and then watching helplessly as it moved ponderously to crush the very rights governments are designed to secure?

Not so in America, Tocqueville saw. There, the citizens have learned to organize themselves not ‘vertically’ under an aristocratic class but ‘horizontally’ with civic associations: political parties, churches, clubs, societies—many of them with sufficient strength to push back against unwarranted governmental encroachments. Tocqueville reported that Americans had perfected “the art of association” to the highest degree of any people, employing this art peacefully to defend their liberties against their own governments, when necessary. To this day, Americans dissatisfied with their local school board, their state legislature, or the federal government itself, respond by getting together with like-minded citizens and—as we like to say—’taking control of their own lives.’ In so doing, they act exactly as John Locke, the American Founders, and Tocqueville wanted and expected human beings to do. Even more, by exercising the art of association Americans to a large and impressive degree govern themselves–that is, they get things done, so that governments will need to do less. Governments that need to do less can be smaller and likely less oppressive than governments that think they need to do it all. And those fewer things they do need to do will likely be done better.

Peter Collier: Political Woman: The Big Little Life of Jeane Kirkpatrick. New York: Encounter Books, 2012.

Originally published in Social Science and Modern Society. Volume 50, Number 1, January/February 2013.

 

Woodrow Wilson remains the most politically influential American political scientist. Best remembered as a formidable ambassador to the United Nations during the first term of the Reagan Administration, Jeane Kirkpatrick led a “little” life in comparison to Wilson but a decidedly “big” one compared to just about everyone else in her field. Born seventy years after Wilson, but only a few years after Wilson’s failed campaign to get the United States into the League of Nations he had designed, Kirkpatrick could assess the results of what Wilson brought to the public life of the country: the relationship of political science to the American regime; the implications of politics based upon an ontology of historical progress; the reconstitution of American political parties and administration; and of course the vision of liberal internationalism, institutionalized now in the League of Nations’ inheritor, the United Nations. Peter Collier has put his considerable experience as a biographer of major public figures to cogent use, bringing his readers right to the main lines of her story.

In shadowing Wilson, Kirpatrick also shadowed the life of an older contemporary and fellow former Democrat, Ronald Reagan. What the public intellectual had in common with the movie star only becomes apparent with Collier’s intelligent help: Both spent their early years in the Midwest—many in small in towns in Illinois, as it happens—where they imbibed a patriotic attachment to their country. While they departed the American heartland quite literally in opposite directions—he to Hollywood, she to Greenwich Village, Paris, and Washington, D.C—politically they had uncannily similar baptisms of fire. As a student at Barnard College in the fall term of 1948, Jeane Duane Jordan found herself repelled by both “the country-club Republicans for Thomas Dewey and romantic leftists for Henry Wallace,” turning instead to plain-speaking Harry Truman. In Paris on a grant, she chose Camus over Sartre in their raging debate over Stalinism. Meanwhile, Reagan had immersed himself in exactly the same struggle as a member of the Screen Actors Guild and the local Democratic Party organization—choosing Truman over Wallace because Wallace’s campaign opened itself to members of the American Communist Party at the same time the Party attempted to march through the institutions of the Hollywood labor unions. Reagan would go on to antagonize not only Wallace’s progeny on the Left wing of the Democratic Party but Dewey’s progeny in the Republican Party he soon joined. Miss Jordan and Mr. Reagan shared the sensibilities of the ‘Truman’ side of the New Deal/FDR progressivism or liberalism before shifting to the more strongly anti-communist wing of the Republican Party, the wing that gave up on Hoover/Taft isolationism without succumbing to the business-corporation internationalism of (for example) Nelson Rockefeller and Henry Kissinger. Each would oppose the Kissinger policy of détente with the Soviets, a policy espoused by both the capitalist ‘Right’ and the anti-communist ‘Left’—by presidents Nixon and Carter.

They differed most sharply in their intellectual formation. The largely self-educated Reagan learned first by political experience and then by reading the conservative and libertarian writings of the 1950s and 1960s; by 1963 he had already concluded that the Soviet Union could be pushed over the financial edge by outspending it militarily, as argued in the pages of National Review by James Burnham. Jordan obtained her undergraduate degree at Barnard (“a place where women could take themselves seriously,” she remembered) and advanced degrees at Columbia University. There she learned comparative politics from the German émigré historian Franz Neumann, an independent Marxist who ascribed the fall of the Weimar Republic not to any supposed historical dialectic but to the weakness of the Social Democrats, who responded to Nazi and Communist Party takeovers of German towns by filing lawsuits. Through Neumann she met Hannah Arendt and listened to her early lectures on modern tyranny or totalitarianism. Job-hunting in Washington, she interviewed with the neo-Marxist Herbert Marcuse, then working in the Central Europe section of the U. S. State Department (the mind reels). But she soon went to work at State’s Office of Intelligence Research, headed by political scientist Evron Kirkpatrick, who eventually persuaded her to marry him.

Thus Jeane Kirkpatrick first encountered the Wilsonian intersection of political science and the modern American state with her husband and mentor at the wheel. In Collier’s words, Evron Kirkpatrick “was genuinely American in his pragmatism and political centrism, and in this regard he was Marcuse’s intellectual opposite.” Born in 1912 in Indiana (another Midwesterner), he had studied with Charles Hyneman at Yale, subsequently making two noteworthy political connections. During the Second World War he served with William Donovan in the Office of Strategic Services; he thus put political science at the service of intelligence gathering and analysis, cultivating postwar “connections with the CIA,” successor to the OSS. Before the war he had also developed strong ties with Minnesota labor politics (he had taught at the university), founding the state’s first chapter of the American Federation of Teachers and befriending an undergraduate named Hubert Humphrey, the future United States Senator and Vice President. By the time he met Jeane Jordan, “Kirk” had friends and allies both in Washington’s espionage bureaucracy and in the “Minnesota Mafia” on Capitol Hill, where Humphrey had been joined by Eugene McCarthy, Max Kampelman, and (among journalists) Eric Sevareid. Like Reagan in California, some of these men had involved themselves in the pro-Truman Americans for Democratic Action in the late forties.

Political scientists to the core, the couple honeymooned while attending the annual meeting of the American Political Science Association. Evron Kirkpatrick would eventually become its executive director. The young bride found herself quite remarkably positioned, with friends and allies in academia and in politics electoral and bureaucratic, public and clandestine. She did not immediately move to capitalize on her good fortune. In the 1950s she had three sons to govern, and didn’t complete her Ph. D until 1968, the year her friend and now Vice President Humphrey lost narrowly to Nixon in the presidential election.

By then, her husband was executive director of the APSA; together, they joined with Samuel P. Huntington, Austin Ranney, and others to face down an attempted takeover of the organization by the New Left-oriented Caucus for a New Political Science, which vigorously deplored the employment of political scientists by such organizations as the CIA as the very nadir of professional perversion. Unimpressed by the New Left critique of Amerika, recognizing that the New Left opposed not the political use of political science but the politics of those who were putting it to use at the service of their country, and recalling their struggles against the ‘Old’ Left of the 1940s, the Kirkpatricks pushed back. The New Left also made a bid to take over the Democratic Party. “Unlike the American Historical Association, the Modern Language Association and other professional societies [the APSA] was not taken over by radicals,” Collier observes. In the Democratic Party the results were decidedly more mixed. The Henry Wallace of his generation, George McGovern, won the 1972 presidential nomination, impelling the Kirkpatricks down the road that eventually led them and many of their old friends to an undreamt-of alliance with Reagan and the Republican Party. The 1976 election of Jimmy Carter and his foreign policy team of Cyrus Vance at State and Zbigniew Brzezinski on the National Security Council–both of them advocates of continuing the Nixon-Kissinger policy of détente with the Soviet Union—pushed them still further.

To her credit, after meeting Reagan Jeane Kirkpatrick told her husband, “He’s not at all like any political leader we’ve known—more personal, more remote, less sure of himself, less aggressive, less articulate than most major political leaders are [thinking of the voluble Senator Humphrey?}, probably less informed, but”—and here she showed both her shrewdness and her equanimity—”that’s not certain because he doesn’t talk like a college professor or a senator or a journalist.” He talked like the American men she had grown up with. “At least he wouldn’t start by destabilizing the government of Guatemala, say, at a time when Communist guerrillas would be the likely beneficiaries.” This was no Carter.

Jeane Kirkpatrick’s understanding of political science and of politics provided the intellectual framework for her contribution to American government, and it is crucial to appreciating her contribution to get that understanding straight. Although he writes a “life” of Kirkpatrick, not a study of her political thought (we could use one of those, too), Collier well shows the relation of her intellectual journey to her political journey. As a comparativist, she first studied documentary evidence of the effects of Nazi, Soviet, and Chinese tyranny on their victims—this, under the tutelage first of Neumann and then of her husband. This ‘psychological’ approach to politics, of interest to the State and Defense departments as well as the CIA, brought her in touch with Harold Lasswell, who would write the preface to her first book, a study of Peronism in Argentina.

Published in 1971, Leader and Vanguard in Mass Society describes “a type of nondemocratic politics that may well become more common as technological advances are achieved in societies with autocratic political traditions.” In it, Kirkpatrick explained a new form of authoritarianism, one based not simply upon invocations of tradition but upon the modern, as it were Tocquevillian foundation of an appeal to a democratized public organized into a mass party that cut across the lines of class—thus flummoxing any attempted Marxian analysis. “Neither capitalist nor communist,” Peron’s regime “blended limited individualism with limited collectivism”; dictatorial, it nonetheless attempted no “radical revolution of Argentine society and culture,” as a totalitarian regime would have done. Peron left Argentina unready for republicanism, with no ground for “broadly democratic parties” that were prepared to accept defeat in elections; “it would have been surprising, indeed,” she wrote, “if, after 150 years of experience with a different tradition, Argentina should have emerged after the fall of Peron a full-blown, Anglo-Saxon democracy.” But the regime did allow for political competition, a variety of politicians and political arenas. “It seems to me that a new name is needed” for such regimes; she invented “polyocracy” but eventually settled back upon the more euphonious “authoritarianism.” Her most famous essay, the one that got her hired by Reagan, distinguished such regimes from totalitarianism, arguing that the former left open the possibility of liberalization as the latter did not.

Turning to the politics of her own country, Kirkpatrick focused her attention again on party, as she had done with Peronism, and also on the new feminist movement. She deplored the re-writing of the rules of the Democratic Party in a way that cut out political bosses—men of long political experience—in favor of reformers who depended upon those whose experience was no longer in politics but in mass media and in the marketing of candidates to mass audiences in primary and general elections. These reforms, written by Senator McGovern, made his candidacy (and that of Carter, four years later) possible—triumphs of ideology over the sort of concrete, experience-based politics and (not incidentally) the sort of historically-grounded comparative political science she practiced.

As for feminism, Collier takes his title, Political Woman, from Kirkpatrick’s 1974 book of the same name. There she described the characters and politics of women who served in state legislatures, finding them anything but exemplars of new-feminist ideology. Quite the contrary, for the most part these pioneering political women were “as conservative” in “appearance and style…as a group of male politicians.” They confirmed “Tocqueville’s insight into the affinity between membership in voluntary associations and participation in politics”—therefore differing not much from the men of their own time and indeed not much from American men of the 1830s. “Nor do they ever use male resistance to excuse themselves for failures to achieve a desired goal.” They found the most resistance to their ambitions when they sought to enter the highest ranks of political life—leadership positions in the state legislature, for example—a point that would steel Kirkpatrick for her dealings with the likes of Alexander Haig, George Schultz, and James Baker in the Reagan Administration. Perhaps most irritating to new-feminist readers, Kirkpatrick treated the claim that men conspired to keep women out of politics as a testable hypothesis—and only one among several, at that. Testing it, she found it wanting.

Thus Kirkpatrick came to high public office committed to understanding politics in political terms and not in terms of sub-political ‘underlying causes.’ The politicians themselves (Truman, Peron, Stalin); their ideas or opinions and those of their fellow citizens or subjects; their political organizations or parties and the regimes they advocated as a consequence of those ideas and by means of those organizations: These rank as what social scientists call independent variables—not as epiphenomenal manifestations of race, class, gender, or any other impersonal ‘historical forces.’

To follow Collier’s narrative and to return to her articles and speeches (beginning with her signature piece, “Dictatorships and Double Standards” and continuing on to her last book, which concluded with a careful evaluation of the George W. Bush administration’s military interventions in Afghanistan and Iraq), one finds a political scientist in political life who affirms political ideas as decisive in political action while rejecting political ideologies as proper guides to political action. She especially criticizes ideologies that purport to reveal laws of history said to point us toward a future in which human nature transforms itself into something new and marvelous, laws said to legitimize rule by elites who rule without the consent of the governed, a rule entitled to overturn long-established habits, beliefs, and institutions by the means of an all-controlling state. Collier identifies the source of her thought in Burke (or, as he wittily puts it, “Burke on a war footing, as he was during the French Revolution”), although more immediately her distinction between a rational politics grounded in political experience (and the previous experiences seen in histories) and a rationalism that attempts “to understand and shape people and societies on the basis of inadequate, oversimplified theories of human behavior” comes from her Burkean contemporary, Michael Oakeshott. But she also recurred to the thought of the American Founders; in the same book in which she published “Dictatorships and Double Standards” she praised their political science, which connected the unalienable, natural rights of the Declaration of Independence to the regime-framing institutions of the American Constitution. For the Founders, as for her, experience was “the oracle of truth,” and it led them to a regime of moderation: “As Aristotle thought to achieve a polity by blending elements of democracy and oligarchy, the [American] Constitution and political tradition have provided balance and avoided extremes through the inclusion of values with opposite tendencies (such as liberty and equality). The resulting equilibrium (achieved by complex institutional engineering) has so far constituted a safeguard against extremism in the pursuit of any one value.” This jabs equally at Barry Goldwater’s “extremism in the pursuit of liberty” and the New (and Old) Left’s extremism in the pursuit of equality. It quietly rejects the historicist ontology of Wilsonian (and New Dealer) progressivism. It forms the intellectual (if not ‘ideological’) foundation for her alliance with Reagan, who had reclaimed national attention in a nomination speech for—Goldwater. As ambassador to the United Nations in Reagan’s administration, she firmly rejected the most ambitious pretentions of liberal internationalism—most pointedly, the claim of that body to override the national sovereignty of the United States or any other nation. Natural right finds its best defense in the consent of the governed.

Collier concludes his book with accurate, succinct accounts of Kirkpatrick’s later career. Weighing the evidence, she was slow to acknowledge that Mikhail Gorbachev’s reforms might lead to regime change in the Soviet Union. Rightly observing that perestroika looked suspiciously like V. I. Lenin’s old New Economic Policy, seeing that both Lenin and Gorbachev said that they intended to save socialism, not liberalize it, she waited until 1989 to decide that the thing was not only “interesting” (the term she’d deployed until then) but significant. She identified the crucial shift as Gorbachev’s acknowledgment of Bukharin’s innocence of the crimes Stalin alleged against him: Such a commitment to factual truth over truth defined as anything deemed politically or socially useful by the Communist Party leader betokened a fundamental shift, a true “new thinking.”

With characteristic intellectual integrity, she immediately turned her attention to the reasons why she got it wrong, concluding that Plato had been right about one thing: a regime may aspire to ‘totalitarianism’ but it cannot get there because members of the ruling class itself will come to disagree with one another, with a consequent opening for regime change. Totalitarianism or modern tyranny may not morph directly into democracy, but it may finally issue in authoritarianism. That authoritarianism may gradually liberalize, although that will much depend upon existing political traditions and habits. A specter haunts Putin’s Russia, the specter of Jeane Kirkpatrick.

If Kirkpatrick’s political science led her to be (in my view rightly) skeptical of the Soviet Union under Gorbachev, it also led her to doubt the prudence of changing the regime of Iraq, breaking with the over-optimism of the second generation of ‘neoconservatives.’ Once again, she doubted that Iraqis had the necessary experience or even the desire to govern themselves as modern republicans. If she had lived she would have felt vindicated, but she would have wanted to know why the Kurds seem so much more adaptable to republicanism than the rest of their countrymen. So her specter haunts the Middle East, as well.

And in her own beloved America? Whenever we complain about partisan-ideological ‘gridlock in Washington’ we should see a familiar hand pointing back to the party reforms of the 1970s, which cut out the old bosses who knew how to cut a deal.

In the persistent relevance of her thought one sees that there is indeed no end to ‘history.’