Saturday, April 26, 2008

District of Columbia v. Heller

Last month, the U.S. Supreme Court began hearing arguments in District of Columbia v. Heller, a case that challenges the District’s handgun ban. The case began when the District denied permission to Dick Heller, a security guard who carries a handgun at work, from having a permit to keep a handgun in his home. The case reached the Supreme Court after the D.C. Circuit Court of Appeals ruled that the D.C. handgun ban was unconstitutional(1).

This is, of course, a Second Amendment issue. The District’s arguments for their ban (and indeed the arguments in general for gun control advocacy) include the following: 1) the Second Amendment applies only to militia – it is a collective right for militias and not an individual right; 2) the Second Amendment applies only to the federal government and only prevents the federal government from interfering with gun rights (a view held by the U.S. Supreme Court in Presser v. Illinois [1886](2); and 3) the concept of the Second Amendment is no longer relevant to life in the U.S. in the 21st century as it was in the 18th. No longer do we defend our nation with, predominantly, civilian militias; No longer is it possible for the average citizen to protect his rights from government with personal arms; and the proliferation of arms on our streets has made us unsafe.(3)

The argument that the Second Amendment does not apply to the District is the easiest to dispense with. Although it is true that initially the limitations on government power enumerated in the Constitution and Bill of Rights were meant to apply only to the federal government and not the states, the District is not a state and ultimately its governance is the responsibility of the federal government. Furthermore, the, “equal protection,” clause of the 14th Amendment has been interpreted, since 1897, to place the states under the same limitations of the Bill of Rights as the federal government.(3)

The Second Amendment reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed,” (emphasis added). The clearest part of this amendment is the last phrase. Whatever right is being conferred, it is quite clear that the government is not permitted, to put any restrictions on it whatsoever! The argument is whether this right is granted to individuals or whether this right is granted only to organized militias. Some argue that the first clause is a precondition for the right that follows, that the right exists only for the militias as a collective right. Indeed, the Supreme Court itself made this argument in United States v. Miller [1939](2). In my view, this reading ignores the grammatical conventions of the English language. In English, the preamble before the second comma is known as a dependent clause. It is it that is dependent on what comes next – the right of individuals to keep and bear arms. If individuals do not maintain this right, they cannot form the militias that the Founding Fathers deemed necessary for our national defense. Furthermore, the independent clause assigns this right to the people. The word militia is not used to describe to whom this right pertains. The word, “people,” is used in other places in the Constitution, specifically in the Tenth Amendment, clearly to denote individual rights. Clearly if the Framers chose the same word for the Second Amendment (and did not substitute, “the right of the militias to keep and bear arms…”), they intended it to convey the same meaning.

The argument that the Second Amendment meant to convey gun rights to individuals is not merely a semantic one. It is pretty clear from the writings of the Framers that they intended for individuals to have the right to bear arms. Although he opposed the concept of a Bill of Rights, Hamilton envisioned our national defense maintained by a small core standing army and militia composed of, “the people at large…properly armed.”(4) In other words militia are the ordinary citizens who keep their own arms and can be called into action, “in a minute’s notice,” for U.S. defense. Madison went further to describe that an armed citizenry would be a protection against any attempt of the federal government to usurp our liberty through the use of a standing army, “To these would be opposed a militia amounting to near half a million citizens with arms in their hands…fighting for their common liberties…”(5) In other words, another intent of the Second Amendment is to allow individuals to keep and bear arms so the government itself cannot take their rights by force. George Mason observed that, “to disarm the people,” was, “the best and most effective way to enslave them.”(6) Pertaining specifically to the crafting of the Second Amendment, Samuel Adams argued in favour of a Bill of Rights so that, amongst other things, the, “Constitution shall never be construed…to prevent the people of the United States who are peaceable citizens from keeping their own arms.”(7) The relationship between the individual right to bear arms and the militia was established in the Militia Act of 1792. This act defined militia as able-bodied free men who were then required to possess their own arms and minimum supply of ammunition.(8)

But the real question is, why do we care what the 18th century intent of the Second Amendment was? What relevance does it possibly have to the 21st century? The compelling case for gun control laws is not that the Second Amendment means something different than what it really means, but rather that circumstances have changed since 1791 and we need gun laws more appropriate for 2008. Although the Second Amendment confers the right to bear arms to individuals, the need to have an armed citizenry has vanished. No longer is our defense based on able-bodied, gun owning citizen militias. Rather, we now have a powerful standing army that is the most powerful fighting force in the history of planet. The right is an anachronism. The unstated intent of some Founders that the right to bear arms would serve as a mechanism for armed resistance to the government, if necessary, is equally ridiculous in 2008. Clearly private citizen gun owners can never be a match for the might and advanced weaponry of the United States military. Sure many citizens use guns for hunting and most people don’t advocate restricting those rights, but what about handguns, or assault weapons, whose sole purpose is to shoot other people? Isn’t there a case to be made that no one needs weapons like that? Even if you advocate gun ownership for self-defense, isn’t that issue one that can be debated rather than accept the 18th century notion that no infringement on gun ownership is permitted? If there are compelling reasons in urban centers, such as Washington, D.C., why gun laws need to be strict for public safety, shouldn’t those centers be allowed to set their laws as they see fit and leave rural states to their less restrictive laws? Over the decades, culminating with U.S. v. Miller, there has been considerable case precedent allowing for this differing interpretation of the Second Amendment as the conditions in the country have made the original intent less and less relevant.(2)

Although many gun rights advocates present data supporting the benefits of private gun ownership and concealed-carry laws; statistics from the Centers for Disease Control, the National Rifle Association, and the Brady Campaign to Prevent Gun Violence, show that states with less restrictive concealed-carry laws have higher mortality rates.(9) Furthermore, of the 30,694 gun deaths in the U.S. in 2005, only a little more than a third, 12,352, were actually homicides. Of the remainder 17,002 were suicides and 1,340 were accidental or police-related shootings.(9) Far from protecting ourselves with handguns, we are killing ourselves with handguns. Indeed, the presence of a gun in the home is an independent risk factor for subsequent homicide in the home.(10) There is also evidence that gun laws do make us safer. A 1991 study of the 1976 D.C. handgun ban at issue in D.C. v. Heller demonstrated that homicide rates declined by 25% and suicide rates by 23% after the law was implemented.(11)

I am not a gun owner, nor an NRA member. I have never been hunting and the sum total of my experience with guns was my great-grandfather showing me how to shoot a .22 when I stayed with him for a week the summer of my 10th birthday. Although I don’t hunt personally, I don’t begrudge others who enjoy the activity. Certainly I wouldn’t favour any laws that would restrict the ownership of weapons used for sport. But, I have to admit, I am convinced by many of the arguments of those who would draw distinction between guns used for hunting and guns that are really only used to kill other people. I agree that the reasons for the individual right to bear arms stated over 200 years ago are either outdated or irrelevant today, for the reasons discussed above. Although gun rights advocates always quote their own statistics about how gun ownership reduces crime, I must acknowledge that the New England Journal of Medicine is a reputable, peer-reviewed journal and the data I have quoted from it is compelling. In my view, it just makes sense that there should be some middle ground policy that can protect citizens from gun violence in places where it is endemic and protect gun ownership where it is not. It seems to be common sense that some weapons don’t need to be legal to own, although I would never favour a complete gun ban.

So why shouldn’t D.C. have a handgun ban that clearly protects residents of District? Why shouldn’t the Supreme Court uphold its previous ruling in U.S. v. Miller, uphold the D.C. handgun ban, and overrule the appellate court? There is an important reason not to do so. There is an important principle of liberty to protect. It does not matter if the D.C. handgun ban is good policy and it does not matter if the original legislative intent of the authors of the Bill of Rights is now woefully outdated and irrelevant. What matters is that their intent, as detailed above, is clear and is part of the Constitution – the supreme law of our land. We must remain wary of laws and precedents that circumvent the Constitution, for it is the limits that the Constitution sets on our government that ultimately protect our liberties. After the Constitutional Convention, when the Hamilton, Jay, and Madison were writing what we now term the Federalist Papers to persuade the country to ratify the new Constitution, there was great debate over whether it should be ratified without a Bill of Rights, or not. Hamilton argued that a Bill of Rights was unnecessary.(12) Hamilton argued that the limits the Constitution set on the powers of government and the checks and balances established among the branches of government would protect the liberties of the citizens without need for an enumerated Bill of Rights. Jefferson, on the other hand, wrote Madison from France to argue that a Bill of Rights be included.(13) In this view, some rights are so important that they must be enumerated so that it is crystal clear that the government never has the authority to limit them. As Jefferson put it, “…a bill of rights is what the people are entitled to against every government on earth…”(13) We have already seen that Samuel Adams argued that the Constitution should not be ratified without a Bill of Rights that included a protection of the right to bear arms, however he also advocated that it include protections of press and religious freedom as well.(7) This is the important point. We may concede that the individual right to keep and bear arms is antiquated, but most of us still view the Constitution’s protections of free speech, free press, free assembly and religious freedom; due process and jury trial; and protection against search and seizure to be as relevant in the 21st century as they were in the 18th. Gun control laws such as the D.C. handgun ban, that run contrary to the meaning and intent of the Second Amendment, and the case precedents that have upheld them, provide the legal framework for circumventing the Bill of Rights. If we allow such tactics to be used to undermine Second Amendment rights, then how can we stop their use to undermine other provisions of the Bill of Rights as well? One could argue that the fact that the other enumerated rights are still relevant will protect them as the majority view remains that those rights should be protected. However the Bill of Rights exists not to protect the majority, but to protect the minority, including the smallest minority, the individual. The whole point of enshrining these rights in our Constitution is so they cannot be altered by a simple majority, but rather require 2/3 of Congress and ratification by ¾ of the states. If you believe that our other freedoms can’t be undermined in this way, what about the assaults on liberty in the USA-PATRIOT Act, or invasion of our privacy by the warrant-less wiretapping that few people seem upset about?

This is the age-old argument between constructionists and leftists. Does the Constitution mean what is says, or is it a, “living document,” the meaning of which changes with circumstances from one generation to the next? I have alluded to the process of amendment of the Constitution. This is the remedy the Framers provided for changing the Constitution as required when the circumstances of the nation changed. In my view, the fact that an amendment process was included not only reveals that the Framers were aware that their priorities might not be the priorities of future generations, but also implies that the Constitution is meant to be read as the strict, immutable supreme law of the land, unless it has been changed through the process of amendment. If we as a society, in the 21st century, have moved beyond the 18th century notion of an individual right to bear arms that, shall not be infringed, and wish to have gun laws allowing for stricter regulation of guns (at least in certain parts of the country) then we should avail ourselves of the prescribed remedy and amend the Constitution so that it no longer protects such a broad individual right to keep arms. Only in this way can we pass gun control laws without setting statutory and common law precedents that could be used to undermine other liberties protected by the Bill of the Rights. I am not opposed to gun control per se, but only if it is done in a way that protects our other liberties, rather than threatens to undermine them – only if it is done through Constitutional amendment. It is for this reason that I fervently hope the U.S. Supreme Court will uphold the appellate court ruling, overturn U.S. v. Miller, and thus reestablish precedent for the respect of the Constitution that will protect our other liberties.

1 Barnes R, “Justices to Rule on D.C. Gun Ban,” The Washington Post. November 21, 2007. p. A01.

2 Tushnet M, “Interpreting the Right to Bear Arms – Gun Regulation and Constitutional Law,” The New England Journal of Medicine. 358(14): 1424 -1426.

3 Levy RA, “The D.C. Gun Ban: Supreme Court Preview,” Legal Times. September 24, 2007.

4 Hamilton A, The Federalist, #29.

5 Madison J, The Federalist, #46.

6 Debates and other Proceedings of the Convention of Virginia, . . . taken in shorthand by David Robertson of Petersburg, at 271, 275 (2nd ed. Richmond, 1805).

7 Debates and Proceeding at the Convention of the Commonwealth of Massachusetts, at 86-87 (Pierce & Hale, eds., Boston, 1850); 2 B. Schwartz, the Bill of Rights 675 (1971).

8 Act of May 8, 1792; Second Cong., First Session, ch. 33.

9 Wintemute G, “Guns, Fear, the Constitution, and the Public’s Health,” The New England Journal of Medicine 358(14): 1421-1424.

10 Kellerman AL, Rivara FP, Rushforth NB, et. al., “Gun Ownership as a Risk Factor for Homicide in the Home,” The New England Journal of Medicine. 329(15): 1084-1091.

11 Loftin C, McDowall D, Wiersema B, and Cottey TJ, “Effects of Restrictive Licensing of Handguns on Homicide and Suicide in the District of Columbia,” The New England Journal of Medicine. 325(23): 1615-1620.

12 Hamilton A, The Federalist, #84.

13 Jefferson T, Letter to James Madison, December 20, 1787.

A Modest Proposal for 2007

Originally written on October 14, 2007:

Earth Day was earlier this week. I just wanted to post this previously written, tongue-in-cheek tract to remind us all not to take it too seriously - Publius, April 26, 2008.

In 1729, Jonathan Swift wrote his modest proposal for dealing with the pressing crisis of poverty in Ireland. Bold and decisive action was needed to address so pressing and vexing a problem.

Today, we have another looming threat that requires the same type of bold action. Former Vice President Al Gore was recently awarded a Nobel Peace Prize for highlighting this important issue: the impending crisis of global warming and climate change. In his acceptance speech, Mr. Gore informed us that we are facing, “planetary emergency.” If we do not act, our entire planet is in peril.

Our action, of course, requires understanding the cause of global warming. Scientists tell us that global warming is caused by the greenhouse effect. Greenhouse gases, such as carbon dioxide trap in heat. This allows for temperatures that support life, but the production of too much carbon dioxide is causing are planet to become dangerously warm, will lead to dangerously unstable climate changes, and threatens the existence of polar bears.

Human beings are the cause of this overproduction of carbon dioxide. It is a by-product of industry; produced by the burning of oil and coal for energy and electricity, produced by the burning of gasoline when we drive or fly, and in fact even produced by the lungs of every man, woman, and child when we exhale. Human beings are the proximate cause of global warming and the solution to the problem is therefore, obvious. Human populations must be reduced if the planet is to survive.

Europe has already, voluntarily, addressed the problem with a declining birth rate. Responsibly, the Chinese have limited their population growth by law to address this issue. But these measures are not enough. The human beings that exist today are producing ever-increasing amounts of carbon dioxide. Limiting the growth of human populations will not be enough to turn the tide. Current human populations must be reduced if we are to preserve our planet.

Fortunately, the United States has led on this issue. The state of Oregon has passed an assisted suicide law. This allows for the more prompt disposition of the terminally ill, not only removing the carbon dioxide generated by their assisted ventilation, but also decreasing the power requirements necessary to power mechanical ventilators. Other states will need to adopt similar measures. More commendable is the leadership shown by Virginia and Texas. These states have the highest per capita execution rates in the country. Again, not only removing people who individually produce carbon dioxide as well as reducing our expenditure of electrical power to house these convicts. Other states will need to follow the lead of Virginia and Texas if we are going to adequately address global warming. States that do not have capital punishment will need to institute it and all states will need to maximize their execution rates. In addition, expanding the number of capital crimes, perhaps to include all crimes, will be required. Of course the use of electrocution must be abandoned in favour of lethal injection as the former method increases our carbon footprint. Europe has, sadly, lagged on this issue.

Although these measures are important, they alone will not be enough to reduce our greenhouse emissions adequately to combat catastrophic climate change. More humans will be need to be eliminated to limit our carbon production. I would first advocate elimination of the homeless. Although this category of people does not use as much power as the terminally ill or the convicted, they do produce carbon dioxide in their lungs and their elimination will have the added benefit of making our cities cleaner and more livable. Secondly, we can use this as an opportunity to address as second problem by targeting for elimination those without health insurance. Not only will this reduce our carbon emissions dramatically, but it will also end the health care crisis in this country.

Lastly a national lottery will be required to select people for elimination. Each citizen will have a number of entries in the lottery proportional to the size of their personal carbon footprint, encouraging all of us to seek ways to reduce our carbon dioxide production. The number of people selected each year will depend on our per capita carbon footprint and the amount of carbon reduction that our climate models predict will be necessary to stop climate change.

We cannot afford to wait. We must act. If we do not act soon, our window of opportunity to stop climate change will be gone. We will have to sacrifice for the greater good. Human beings must be eliminated in significant numbers to save our planet. The survival of the polar bears depends on it.

Nation Building

Originally written December 26, 2005:

As the Iraq war enters its sixth year, I thought it appropriate to post these two previously composed essays on nation building - Publius, April 26, 2008.

It is an oft repeated axiom that, “those who fail to learn from history are doomed to repeat it.” It would seem common sense that this would be true and yet history seems to repeat itself with alarming frequency. It certainly seems true that we are not a history conscious society with a subconscious belief that we have the ability to prevail over the obstacles that stymied our ancestors. Although this “can-do,” attitude can be a powerfully positive engine for ingenuity, inventiveness, and economic growth, it also makes us blind to pit-falls that history should teach us to recognize.

I find this most evident as I reflect on the war in Iraq. The lesson that history should teach us, that both critics and supporters of the Iraq war seem oblivious too, is that the forging of liberal democracies takes a long time. Setting aside the argument for invasion that was based on flawed intelligence regarding the external threat that Saddam’s regime represented, the President did state from the beginning a belief in a sort of reverse domino theory that a stable democracy in the Middle East would begin to transform the region. Whether or not that premise is true, or whether or not it should therefore be our role to create such democracies for other peoples, or whether or not it is even possible for a foreign power to create a democracy in another country by force are all debates for another day. My point here is that from the beginning, one of the President’s goals was the creation of a constitutional liberal democracy in Iraq. The administration argued that we would be greeted as liberators; that Iraq was a sophisticated nation, ready for self-government; that Iraqi oil would pay for reconstruction; and that the Iraqi people where ready to throw off the shackles of tyranny – they wanted our help to do it in 1991. In short, this would be relatively easy and cost little and the dividend, in terms of the reverse domino theory and our long-term national security, would be large. According to Bob Woodward in Bush at War, at a meeting at Camp David on September 15, 2001 to discuss our response to the September 11th attacks, Paul Wolfowitz argued against going after Al Qaeda camps in Afghanistan and in favour of invading Iraq in response to 9/11! His argument, rejected by the President, was not that there was compelling evidence of Iraqi involvement, but that Iraq would be easier to accompolish! He seemed cognizant of the difficulties that British and Russians had in the past in the rugged terrain of Afghanistan, but completely ignorant of what it takes to build a liberal democracy from the ground up.

Critics of the war and events in Iraq also seem oblivious to the historical lessons of the challenges involved in establishing a liberal democracy. Two and a half years after the invasion, they seem astonished that it is taking so long and shocked about the level of violence in Iraq – which they conclude must be due to mismanagement. Yes, the administration sold this as being as painless as Desert Storm, but everyone believed it. They also make fatalistic statements about the inevitability of civil war, which will destroy the prospect of democracy. They worried that enough Sunni’s would vote against that new Constitution and reject it as if it would have been an insurmountable road block to not get the Constitution right on the first try. And they complain that the new Constitution doesn’t address all the issues of minority participation and protection or the role of Islam in government and law.

One need look no further than the United States to find evidence of the challenges involved in creating a liberal democracy. As we all know, the U.S. declared independence from Great Britain in 1776 and after armed conflict was recognized as an independent nation with the Treaty of Paris in 1783. In truth, the U.S. really cannot be described as liberal democracy before women’s suffrage in the 1920’s. With racial segregation and Jim Crow laws in place, it could be argued that the U.S. was not truly a liberal democracy before the Civil Rights movement in the 1950’s and 60’s. In other words, in the U.S. it was a process that took 150-200 years! In this context, the administration’s notion that such a process could be completed in Iraq during a George W. Bush presidency (even with two terms) seems silly. Furthermore, our first Constitution, the Articles of Confederation, was a disaster and in 1787 we scrapped the whole thing to write our current Constitution. And, as wonderful as our Constitution is and as well as it has served us for two centuries, it left one major issue unresolved – slavery. In the twilight of their lives, Jefferson wrote to John Adams that this would be an issue to be resolved by posterity. He was right. It was resolved on the battlefields of Gettysburg, Vicksburg, Manassas, Shiloh, Fredericksburg, Chancellorsville, The Wilderness, and Antietam; resolved in the flames of Atlanta and Richmond; resolved after a horrible, bloody, civil war that to this day claims more loss of American lives than any other conflict. Within our own history there is a rejected inadequate initial Constitution, a final Constitution that fails to address key issues, and a subsequent sectarian civil war… Such things may not be preventable in Iraq. Such things may be inevitable in Iraq. But, such things do not necessarily spell doom for the ultimate establishment of liberal democracy either. In truth, just like with the U.S., the true success or failure of today’s efforts in Iraq will not be known for decades.

Perhaps Canada is a better example for comparison with Iraq. The United States in 1787 was an essentially ethnically monolithic country. Sure there were some Dutch in New York, some Germans in Pennsylvania and some Scotch-Irish, but the vast majority of the population of the original thirteen states were English. Native Americans could easily be pushed, and were, into the vast expanse of wilderness to the west. On the other hand, Canada at the time of Confederation in 1867 consisted of several separate British colonies in what are now the maritime provinces of New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland (which did not even join the confederation until much later); a British colony in British Columbia; an uneasy union of English Upper Canada (modern day Ontario) and French Lower Canada (modern day Quebec) and a vast expanse of midland prairies inhabited by some English, some French, Native Americans, and Metis – those of combined French and Indian ethnicity. In 1867, Canadian confederation had to stretch coast to coast, both to connect British Columbia with the rest of British North America and to secure the western prairie from the rapidly expanding United States. So, Metis, French, English, and Native American would need some sort of workable solution. But, in 2005, Iraq has something Canada didn’t have, a written Constitution. The closest thing Canada had to a written Constitution was the 1867 British North America Act that conferred self-governing dominion status to Canada. It re-affirmed commitments of the earlier 1774 Quebec Act uniting Upper and Lower Canada to the preservation of a distinct French society in Quebec but left language on what that constituted deliberately vague. In the early years of the Canadian confederation, this largely translated in the right to minority schools – that would be French speaking and Catholic- in all provinces. Issues of federalism between the federal government and provincial governments were also not clear in the act. Furthermore, there was no mechanism for amendment! Talk about unresolved issues! When granted more autonomy from London following World War I, Canadians were still at an impasse in deciding how to amend the British North America act, and the 1931 Statute of Westminster left amendment power in the hands of the British parliament. It wasn’t until 1982 that Canada passed an amendment process and adopted a Charter of Rights. Even in this, Quebec felt largely left out (special status was granted to Native Americans, but the, “distinct society,” of French Canada was not recognized) and in 1987, Prime Minister Brian Mulroney called a conference at Meech Lake to try to resolve some of these issues. The Meech Lake Accords were not ratified. Mulroney, who became quite unpopular as a result of recession, tax and trade policy, and acquiescence to the U.S., handed the office over to Kim Campbell, Canada’s first woman Prime Minister. But, even the change in leadership could not prevent voters from taking out their frustrations on Mulroney’s Tory party and in the following election ousted the Tory majority. Not only did the Liberals have a majority, but the Tories were reduced to two seats in the House of Commons and weren’t even the opposition party following the 1993 elections. That distinction fell to the Bloc Quebecois – a Quebec separatist party whose stated objective is the end of the Canadian federal union! In the mid 1990’s a Quebec referendum on secession was narrowly defeated 51% to 49%. Yet despite these long standing ethnic divisions, Canada stands today, undeniably one of the world’s greatest, freest, and most prosperous liberal democracies. Can the Kurds, Sunni, and Shi’ite in Iraq achieve the success that English, French, and Native Americans have achieved in Canada? Only time will tell – in Canada it has been a process of over 100 years.

One would certainly expect more rapid change in this faster-paced information age. But even our more recent experience with nation building should underscore the point that successful liberal democracies aren’t made on the quick. It has been twenty years since civil war began in Lebanon and only now is peaceful democracy independent of Syria evident. It has been ten years since our involvement in the Balkans and only recently has ethnic cleansing given-way to resumed peaceful coexistence. It has been several decades of violence in Israel and only now does the Palestinian authority seem anything close to a representative governing body for a future Palestinian state. Our efforts in Haiti and Somalia have been even less successful.

There is another important historical lesson to be learned beyond the fact that establishing a liberal democracy in Iraq will be long-term commitment. That lesson is embedded in a key difference in starting point between the U.S. and Canada on one hand and Iraq on the other. Before the U.S. invasion, Iraq was a totalitarian dictatorship. Neither Canada in 1866 nor the American colonies in 1775 could be described this way. In fact, the Canadian transition to independent liberal democracy is largely a gradual legislative one. In the U.S., a “revolution,” was fought that was really nothing of the sort. The birth of the United States was a successful secession. The government of King George III was not toppled, but remained intact. In fact, American colonists were largely fighting for rights that were granted to English citizens in England and kept British common law as the basis for U.S. law and jurisprudence. In both the U.S. and Canada, there was a tradition of constitutional liberty that predated the establishment of democracy. Perhaps then France is a better example for comparison to Iraq. In 18th century France, the monarch was much more absolutist than his British counterpart. He was overthrown and executed as part of a bloody revolution. Then came democratic tyranny in the form of the Reign of Terror only to end in civil war and the establishment of an Emperor, who lead France into wars with her neighbours and then ultimately restoration of the Monarchy. To any observer in 1815, the French Revolution must have seemed an abysmal failure (and the American Revolution anything but a sure success), and yet France today is also a liberal democracy, forged over a long and bloody history with many mistakes and wrong turns in her past. Although provoked by a foreign power, the Iraqi situation now is similar, and equally precarious, to France in 1789. A totalitarian regime has been toppled and is to be replaced by democracy.

The French example underscores the historical lesson in all this that is most important with respect to Iraq and has been entirely unlearned by policy-makers. The French experience demonstrates that democracy is not the starting point for liberty. There is nothing about democracy that intrinsically guarantees or protects liberty. In his book, The Future of Freedom, Fareed Zakaria describes the democratic usurpation of power in Venezuela between 1998 when Hector Chavez was elected president and 2002. Chavez proposed a referendum that would create a unicameral “Constituent Assembly,” that was essentially answerable to the president and to which the judiciary would be answerable. This would replace the previous bicameral legislature and independent judiciary. The referendum passed with 91% of the vote. A new constitution, based on this referendum passed in 1999 with 71% of the vote and during the late 1990’s Chavez approval rating never fell below 65%. Venezuela is a democracy, but now clearly an autocratic one. Putin’s Russia is another example of a democracy almost as autocratic as the previous communist regime. And, it should be remembered that at least initially, National Socialists gained seats, power, and influence in Germany’s Wiemar Republic through democratic means. In his second treatise of government, John Locke wrote:

Absolute Arbitrary Power, or Governing without settled standing Laws, can neither of them consist with the ends of Society and Government which men would not quit the freedom of the State of Nature for…were it not to preserve their Lives, Liberties, and Fortunes; and by stated Rules of Right and Property to secure their Peace and Quiet. It cannot be supposed that they should intend…to give to any one, or more, an absolute Arbitrary Power over their Persons and Estates… (Ch. XI, paragraph 137).

In other words, to protect individual liberty, the authority of government must be limited, not arbitrary. It makes little difference whether the wielder of arbitrary power is an individual or the masses.

What guarantees liberty is a constitutional rule of law. In essence, this is a compact, written or implied, between a government and its citizens that guarantees the rights of individuals and, more importantly, limits the power and authority of government. This includes societal institutions that protect liberty and check governmental authority. Mechanisms include separated powers in government (Executive, Judicial, Legislative) with independence among the branches, as well as independence of Church and State and private property rights that allow for the concentration of wealth (and therefore power and influence) in a private sector and gives citizens the ability manage their own resources and map their own destiny. The authority of the private sector and of an independent Church also provides a counter-weight to governmental power, above and beyond its necessary internal checks and balances. These institutional limits on government were certainly part of the 18th century (except for the independent Church, a problem quickly rectified in the new United States) British tradition that Canada and the U.S. inherited. And they were present in absence of democracy, but in the context of constitutionally limited monarchy. The U.S. framers codified these concepts in the U.S. Constitution, but it was this basis of law and this acceptance of governmental limitation that made liberal self-government possible. Eastern Europe again provides illustrative examples. The most successful eastern bloc countries are those that had liberal traditions and institutions prior to World War II – Poland, Czech Republic, and Slovakia. By contrast, Russia, the former Yugoslavia, Rumania and most former Soviet Republics have struggled with the transition to democracy. At the beginning of the year, when I expressed my optimism for liberal democracy in Ukraine, it was based on two things: the peaceful nature of the Orange revolution and the independence asserted by the Ukrainian judiciary. This suggested to me a people ready to govern themselves and establishing institutions, like an independent judiciary, to protect their liberty (sadly, I heard recently that the Yushenko government in the Ukraine has been more interested in settling old scores than in governing for the future). Democracy isn’t the first step toward liberty, it is the last. It is the reward of a free society ready to govern itself.

Our policy toward Iraq and the critics of it are largely ignorant of history. The assumptions behind the President’s strategy ignore the long and difficult process every successful democracy has had to endure to establish itself and suggest that somehow, in Iraq, this can be a short-term commitment. His critics largely argue, not that this can’t be done quickly (although a few have made that case), but that it isn’t being done quickly enough. As if it were possible to move quickly toward liberal democracy in Iraq if only we had better policy or strategy. Most chillingly, all sides have made the assumption that democracy is the first step to liberty, not the last. All sides assume elections are of paramount importance, not security, stability, or civic institutions. Occasionally a politician or pundit will comment that democracy in Iraq could mean Shi’ite theocracy, but still no one acknowledges that perhaps democracy isn’t the appropriate first step. An unlearned lesson, despite centuries of examples of tyrannical democracies that have disintegrated.

Before I will close, I will offer one last example of history repeating itself. That is the position of the U.S. in the world at the opening of the 21st century. It is almost identical to the position of Great Britain in the world at the opening of the 20th. A lone super-power with both economic and military influence around the globe. A power with unquestioned naval (and now air) superiority. A power with military presence spread around the globe and in occupation of Iraq and Afghanistan. Hopefully this un-historically conscious society can learn enough from the British example to end our hegemony, when the time comes, by adjusting to a smaller role on the world stage while retaining our liberty, peace, and prosperity at home and thereby avoid the fate of ancient Rome.


Originally written on January 1, 2005:

Lost in the shadow of the disastrous Asian tsunami was Victor Yushchenko’s win in the repeat Ukrainian elections. If the Ukraine manages to successfully become a stable, liberal, democracy then Yushchenko, who will be sworn as Ukraine’s new President today, may be regarded as Ukraine’s George Washington.

Since the demise of the Soviet Union, the Ukraine has been a one-party, authoritarian, illiberal democracy. Autocratic rulers use the results of “elections” to validate their governments but in the end govern with the same heavy hand as when Ukraine was a Soviet Republic. The current ruling party in the Ukraine has even kept close ties with mother Russia. An arrangement that Vladmir Putin (another popularly-elected autocrat whose tenure in office is marked by expansion of presidential power and debasement of other institutions) has so favoured, that he worked actively for the election of the current prime minister to Ukraine’s presidency. Many in eastern Ukraine have favoured this arrangement, but at the expense of liberty and true democracy in the Ukraine – the Russian example with democracy is hardly one worth following and Hungary, Poland, the Czech Republic and the Baltic states provide better examples of how eastern European countries can transition to liberal democracies.

In Ukraine, Yushchenko has defied the status quo and forced the country to have a truly bipartisan election with two viable candidates. And so Ukrainians are divided, literally between East and West. The Eastern part of the country is pro-Russian and supported the ruling party, the Western part pro-Europe and supported Yushschenko. For Yushschenko to be truly the founder of a new era in liberal self-government in the Ukraine, both sides will have to accept his authority. Recalling the American experience of political divisions that coincide with geographic ones in 1860, this may be a difficult task and may call on Yushschenko to be his country’s Abraham Lincoln as well. But in defying authoritarianism, resisting attempts to undermine the elections (including attempts on his own life), and giving, for the first time, Ukrainians a true choice in leadership and vision for the future, Yushchenko has taken a critical first step toward true liberal democracy.

As brave as Victor Yushchenko has been and as important as his role in all of this is, as is always the case with turning points in history, he is not the only hero of this story. The Ukrainian people themselves are equally important. Ukrainians turned out to vote in astounding numbers. Much has been made in recent years of low voter turnout in the U.S. Yet, with our most recent election and the perception by many that this was a critically important election, we have recently had a vote with record turn out. So too did Ukrainians recognize the importance of this first election with a true choice, with true ramifications for future of the country. And, whether they agreed with remaining tightly in the Russian sphere of influence, or thought prosperity lay with turning toward the West, they came out to voice their opinion with their vote. A similar phenomenon was observed recently in Afghanistan, and we can only hope Iraqis, facing physical danger, will, in large numbers, also seize the opportunity to shape their own destiny.

But the critical step taken by the Ukrainian people toward establishing true liberal democracy, was not simply the act of voting itself. That they had done before, albeit without as much true choice in candidates. Rather, it was the Orange Revolution - the peaceful protests after the election that forced a re-vote. This established several important principles of liberal democracy: 1) it exercised the people’s right to peaceably assemble and express views dissenting from the government. 2) it forced the government to acknowledge that elections must be transparent and votes must be fairly counted, and 3) it established the fundamental right and ability of the people to self-govern. More than the outcome of any vote, the Orange brigades established that the government belongs to the people and governs only by their consent. The people’s will indeed determines the direction of the country. In governing themselves as individuals by eschewing violence, Yushshenko’s followers demonstrated definitively that the Ukrainian people possess the capacity for self-government.

However, as mother Russia demonstrates, democratic government isn’t always liberal government. It remains to be seen whether Yushshenko’s government will respect and protect the rights of his opposition minority. In his book, The Future of Freedom, Fareed Zakaria discusses the parameters that are associated with the development of successful liberal democracies. He notes the importance of capitalist wealth – the earned (produced) wealth of nations. Historically, countries with a per capita GDP of $6,000 in current U.S. dollars are the ones that succeed in forming stable, liberal democracies. Ukraine, by this reckoning, is not quite there and has a greater struggle ahead if she is to be successful. By this standard, Zakaria lists the countries that are ready, economically, for stable liberal democracy: Romania, Bulgaria, Croatia, Malaysia, Turkey, Morroco, and of the former Soviet Republics, Belarus. At first blush, this would seem a gross oversimplification. However, the relationship between capital and freedom is a complex one. Zakaria also notes that states with intrinsic natural resource wealth (such as oil), tend not to be fertile grounds for liberal democracy. In this case, the state does not depend on production and economic growth for wealth. In other words, it is not beholden to expanding a tax base, but rather has intrinsic wealth. Since the state has no dependence on the population for wealth, it is also not beholden to the population and has no incentive to create the conditions necessary for the production of wealth – the conditions of liberal society. Production requires private ownership, which requires personal property rights, which then requires codification of the protection of those rights. Commerce requires freedom to travel, free speech to advertise, and therefore the codification of these freedoms. This is, of course, the principal of engagement with China – the notion that economic reform must ultimately bring with it political reform. As an example, Zakaria sites the growing number of lawsuits against the government in China over the last several years (and the growing ability of plaintiffs to win such lawsuits) over issues of private ownership (90,557 suits in 1997 compared to 0 in 1984).

Certainly there is room for debate regarding the best way to ultimately bring about the end of the Communist regime in China. However, the underpinning of the argument is the realization, evident in the Russian experience so far with democracy, that democracy is not intrinsically a guarantor of liberty. Madison’s concern for tyranny of the majority (or at least tyranny of elected leaders) is a valid one. More important than democracy is a system that protects individual liberties and freedoms. A system in which private ownership is respected, personal choices about one’s life and one’s property can be made, and the ability of individuals to engage in any activity that is peaceable, engaged in by mutual consent, and does not infringe upon the rights of others is generally protected (or in Jefferson’s words, “while restraining men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement…”). Zakaria keenly recognizes the role of the state in this regard. There must be civic institutions, both political and economic, and both governmental and private to create this atmosphere. There must be a codification of rights that limit the power of government, and a government with the power to enforce laws protecting the rights of individuals. In short, a balance of economic (and to some degree political) power between the private sector and the state, and a balance of political power within branches of government. Checks and balances both between federal and local authority as well as within federal government itself. Only in this way can a government be strong enough to govern its people, and limit itself. Hardly a new concept, Mr. Madison, Mr. Hamilton, and Mr. Jay expressed it quite eloquently over 200 years ago.

Which brings me to the unsung heroes of the Ukrainian Orange revolution. The courts. In overturning the results of the initial fraudulent election, the Ukrainian Supreme Court established a principle of independent judiciary. The Court was not a puppet to the governing regime and its party, but an independent authority apart from the legislature and executive. Without credible opposition before now, certainly the justices were appointed by leaders from the pro-Russian, outgoing party. But, they refused to simply be an organ of the administration. They refused to be window dressing on Potemkin democracy. This is the Marbury vs. Madison moment in the history of Ukrainian democracy, the assertion of principles of independent judicial review. Nor will the courts be the pawns of Yushshenko’s new government. Just twenty-four hours before the re-vote, the court ruled that restrictions on home balloting, that Yushshenko wanted and won in the compromise that led to a new vote, violated the voting access rights of those that were home bound. Accommodations for such voting had to be made in the eleventh hour before the election. Again the court has asserted the principles of judicial independence and review. And, in accepting the court’s ruling, the previous ruling party who had resorted to fraud and poisoning to undermine the electoral process and retain political power has solidified the courts authority, and perhaps unwittingly made their own contribution to the stability of Ukranian democracy.

The challenges facing the Ukraine are hard, but the result of this peaceful (so far) struggle for power is the birth of a truly democratic government in which principles of consent of the governed, fair and transparent elections, freedoms of assembly and speech, and checks and balances in government have been established. It is a good start, and hopefully this newborn democracy will grow and mature into a stable, liberal, and prosperous one.