229 Years

The certificate that shows that I was admitted to the practice of law in New York, peculiarly notes that year of my admission in number of years since the United States was founded in 1776 in the course of an event accurately known as the "American Revolution".

This nation came to being by force of arms used contrary to the law prevailing at the time, not by United Nations resolution or the consent of the British King. While the founding fathers of our nation were not necessarily terrorists, they were most definitely insurgents and probably would have come within the gambit of Bush's "enemy combatant" doctrine.

In 1789, the Article of Confederation, which had served the early Republic, were discarded in favor of our current constitution, because they created too weak of a central government that required unanimous consent to do almost anything and relied on state governments for its funding. Two years later, in 1791, the Bill of Rights was added to the document.

The Bill of Rights is the defining feature of the United States Constitution. There have been forays into the power of Congress vis the states and the President, and visa versa. But, the vast majority of what law students spend at least two full semesters, in Constitutional Law and Criminal Procedure, and a significant chunk of time in their evidence and civil procedure classes, is devoted to the provisions of the constitution that protect individual rights and restrain government power vis the individual.

The underlying theme of the Bill of Rights is that it undercuts government powers that the insurgents found onerous. The right to protest (freedom of speech and of the press), the right to bear arms, the right to not be forced to quarter soldiers without compensation, freedom from unreasonable searches and seizures, the right to a grand jury and trial by jury, the right to due process and to compensation for govenrmental takings, limitations on coerced confessions, the right to counsel in criminal proceedings, and a guarantee against cruel and unusual punishments. This is familiar terrority.

Juxtapose these rights against the number that is the title of this post: 229 years. The constitution has not proven itself to be a suicide pact. There has been only a few genuine armed insurgencies in the history of the United States, and the constitution did not seriously encourage or prevent the extermination of any of them.

President Washington did not need the onerous methods that had been practiced by the colonial British to put down Shay's Rebellion, an early anti-tax revolt.

From the point of view of formal legal proceedings, the succession of the Southern States in the U.S. Civil War was on more firm legal grounds than the American revolution itself. Each state succeeded based on a legislative vote, popular referrendum, state political convention, or some combination of the above, and in many cases by safe majorities. Moreover, nothing in the 1789 Constitution expressely prohibited succession, the Declaration of Independence can be read as an endorsement of the right of states to unilaterally succeed from a political union, and the possibility had been part of the popular political consciousness for decades, even if it was an option of controversial legality. At any rate, the policy making that led to the Civil War was conducted in the public view by elected officials, not in the secret settings by prominent unelected individuals, that the Constitution makes possible for insurgents, and while there were certainly civil liberties fights in that war (the government lost some of the important ones after the war was over), historians look to the big battles between massed armies and the relative industrial and rail capacities of the combatants, rather than the conduct of the "secret side" of the Civil War as the most decisive component of the eventual outcome.

The nearly century long insurgency mounted by Native Americans called the "Indian Wars" by the department of Veterans Affairs, was ultimately brought to a close as much by the development of the machine gun and health trends that had depleted Native American populations as a lack of will to fight.

The always half hearted Puerto Rican insurgency, which has probably been one of the largest source of attempted and successful political assassinations in U.S. history, has been wiped out largely by a grant of U.S. citizenship and repeated referrendums showing independence a small minority position compared to the status quo, which voters have preferred to statehood.

The real question to ask is not "why did 9-11 happen?", but why have there been so few incidents of terrorism on U.S. soil? We are a nation of tens of millions of military veterans, many of whom have participated in genuine wars. We are a nation in which half of households have a gun. We are the most college educated country in the world, with millions of people who know enough chemistry to make their own explosive or biological/chemical WMDs and tens of thousands who know enough to design nuclear weapons. There are hundreds of thousands of engineers in this country who would with a very modest application of force do immense damage to our nation's infrastructure. I could elaborate on the ways, but I won't. Suffice it to say that a dozen or two committed and knowledgable people could wreck havoc on this nation of about 300,000,000 people, if they chose to do so.

To hear conservatives talk, the U.S. Constitution so binds the hands of law enforcement that it is suicidally difficult for this nation to protect itself from those kinds of people. But, the conservatives are wrong. Sure, the Constitution does require more effort to go after would be insurgents than would exist in a totalitarian states. Terrorism is far more common in relatively open and democratic societies than it is in countries where a dictator rules with an iron hand, little respect for individual rights, and armies of secret police trying to ferret out any possible insurgency.

But, terrorism and insurgencies are not random affairs. People don't undertake them for just any policy objective. No elected official has ever been assassinated based upon his stand on provisions in the tax code or the national budget. There are no terrorist groups in place in this country trying to keep Social Security in place by force, despite the tens of billions of dollars at stake in the debate.

So why do terrorism and insurgencies take place? (1) Because some groups feels that some other regime than the current one, some secular and some religious, is more legitimately the sovereign over some or all of the nation's territory than the existing internationally recognized sovereign, and (2) Because mounting a political campaign is cheaper and easier and more likely to endure if successful, than mounting an insurgency.

In the United States, there have been relatively few instances of disputes over the legitimacy of the existing government to rule its terroritory, summed up above, those have been largely settled for more than a century, and the political process is relatively cost effective compared to trying to mount an armed insurgency. Often one doesn't even need to have your candidate win elected office. A few tens of thousands dollars of campaign contributions may be all that is necessary. A war chest like that will buy you a dozen assault rifles, and pits you against one of the largest and most technologically advanced military forces in the world operating on its home turf.

The Iraqis are not fighting an insurgency because they "hate our freedom". They are fighting an insurgency because the current government has deep roots in a pre-emptive war brought without broad based international support, by another sovereign country. This is not in the playbook of ways to get the population to internalize the legitimacy of the current regime. Afghanistan's comparative tranquility, despite its similar population and more tretcherous terrain, is a product of a greater buy-in from the general population of the political process, particularly the use of the historically sanctioned "Loyola Jerga" process, than the Iraq approach, where we have deliberately ignored the expressed wishes of the most powerful man in the country, Sistani, on how the process should be handled. Al-Queda's attacks on the U.S. have as much to do with concerns over Saudi Arabian politics and with a more general process whereby young men in oil rich countries are unemployed, educated in religious philosophy, and are affraid of the corrupting influences of U.S. norms on their own worldview.

Rather than being an impediment to stopping terrorism, the individual and political rights secured to citizens by the U.S. constitution is the main reason that the U.S. has seen few insurgencies at home. Our open system makes using the process easier, allowing people to express their views and use the political process to achieve their ends, rather than making war, a costly waste that humanity can never seem to learn to not participate in.