Cato V, Part XXII: The Same Causes, contd.

While the passage of the Militia Act by Congress in 1792 was, like Washington’s later invocation of the same, an entirely pragmatic reaction to an apparent crisis, it also represented a significant shift in American political philosophy. Militia, by and large, were thought to be preferable to a standing army by most Americans in the Revolutionary and post-Revolutionary eras. Unlike the Continental Army or the British Army – which were organized, directed, and paid by a central authority often located at some distance from the theater of action – militias were controlled by a combination of the state governments and the various local communities in which their members resided. This fact tended to make militias more trustworthy in the eyes of the average American citizen. In the late 18^th century, after all, most Americans still identified themselves with their state rather than with the nation as a whole and were far more likely to invest feelings of comfort and safety in representations of state power than in those of any manner of national administration. Expressions of military authority were very much included. Unlike a professional army officer, for example, whose orders were handed down to him by a potentially distant authority, and who quite probably possessed no attachment in particular to the region or community it was his nominal duty to protect, a militiaman was never supposed to operate beyond the confines – or outside of the political authority – of the state he called home. This was because militias were supposed to be defensive rather than offensive, amateur rather than professional.

This latter quality in particular – the amateur nature of the very concept of a militia – essentially embodies the other reason most Americans in the late 18^th century tended to distrust professional militaries. A professional soldier was someone whose livelihood more or less depended on his following the orders that were handed down by his superiors. Depending on his position he might perhaps possess sufficient freedom to raise his concerns or even express his dissatisfaction, but this leeway could only extend so far. If he wanted to remain in the military, and if he furthermore wanted to gain promotion – and all of the fame, glory, and respect that went with it – he would at some point have to make his peace with doing things that he didn’t necessarily agree with. For a community who had come to associate professional soldiery with tyrannical governments – as the inhabitants of the late 18^th century United States most definitely had – this manner of obedience was bound to be a source of concern. In the event, say, that the government of a given state objected to the terms of a piece of federal legislation and opted to resist the implementation of the same, what reason would a professional soldier in the employ of the federal government possibly have for being anything less than zealous in attempting to enforce the law in question? Failure to follow orders would almost certainly result in discipline, perhaps even dismissal. It might be somewhat distasteful, having to treat one’s fellow citizens as though they were an enemy population, but such is the nature of military life. Today it’s putting down insurrectionists in Massachusetts or New York, tomorrow it’s garrison duty in the Northwest Territory. One goes where one is sent, does what one is told.

A militia, by comparison, is rather the opposite of professional. Its members, far from being career soldiers whose way of life depends on their willingness to follow orders, are part-time defenders of the lives of livelihoods of the communities from which they are drawn. They are trained, of course, according to a reasonable standard of quality, and armed, and uniformed, and expected to assemble when mustered and obey the orders of state authorities. But when not in uniform, they are essentially indistinguishable from any other member of the locale that have been assigned to defend. In the context of the late 18^th century Unites States, this fact doubtless made the idea of a militia far less troubling to the average American than that of a standing army. A professional soldier, to their eyes, was a man defined by discipline, obedience, and the ability to take lives if called upon. His accordant malleability, while potentially useful, sets him apart from most of his fellow human beings, perhaps even to the point of making him an object of fear and disquietude. A militiaman, by contrast, was just another man. When not in arms he was a baker, a lawyer, a farmer, or a merchant. He serves because it is his duty, and because he understands the need to protect his family, his friends, and his community as well as he feels the need to protect himself. He does not enjoy military life, or seek respect by adhering to it, but makes what sacrifices are expected of him as best he can. He is not foreign, or frightening, or in any way untrustworthy.

While granting that the terms of the Militia Act of 1792 did not in itself transform the comforting and familiar American militiaman into the disquieting and unfamiliar professional soldier, that selfsame legislation – and the manner by which it was invoked in 1794 by the Washington Administration – did, in a very real sense, move the former substantially closer to the latter. The state militias were not altered in form or function, of course. They were still to be trained and organized at the direction of the states themselves, and their membership was still to be comprised of part-time soldiers called to arms only during an acute military emergency. What the terms of the relevant legislation did do, however, was allow the Executive Branch of the federal government – in cooperation with a single representative of the Judicial Branch – to both decide what constituted an acute military emergency and take control of the militias once such a decision had been made. The militias could not act as quickly as a standing army, having to muster before they could be deployed, and their training and equipment was bound to be inferior to those of a professional military. But their numbers, when combined, were bound to exceed those of a professional, peacetime army of the period. Consider, to that end, the following.

Pursuant to the invocation of the Militia Act by the Washington Administration in 1794, the force ultimately assembled numbered close to thirteen thousand. At the Battle of Saratoga (1777), one of the largest engagements of the entire Revolutionary War, the Continental Army counted some fifteen thousand men under arms by the time that the British surrendered. The Washington Administration’s ultimate response to the Whiskey Rebellion therefore constituted, not only the summoning of a military force under federal control that rivaled some of the largest armies fielded by the United States during the Revolutionary War, but it also represented the first time that such a force had been summoned on the initiative and at the command of a single individual in the short history of the American republic. Washington, it was true, had also been Commander-in-Chief of the Continental Army in 1777, and in that capacity had exercised a considerable degree of autonomy as to where the troops under his authority were sent. That said, he had also been under the authority of Congress, whose members were free to override, replace, or remove him at their pleasure. This was no longer the case in 1794. Having been elected by popular(ish) vote, Washington was the sole leader of an entire branch of the federal government possessed of almost complete autonomy – except where specified by the Constitution – from the oversight of either Congress or the federal courts. Congress maintained the sole responsibility for declaring war, of course, as well as for allocating the financial resources necessary for the United States to deploy whatever military forces happened to be in its service. But the President remained the Commander-in-Chief of those forces, be they professional or amateur, and was by no means required to consult with Congress before exercising his authority within that sphere.

   

There remained ambiguities, to be sure, as to how the President might actually take command of the state militias pursuant to the text of Article II, Section 2. It wasn’t clear, for example, how or why the Chief Executive might call the militias into federal service. Thankfully, the passage of the aforementioned Militia Act effectively answered most of these questions. Yes, the President did require the acquiescence of a Supreme Court Justice to call the state militias into federal serve, but that was all he required. Once this prerequisite was met, the Chief Executive was free to summon a potentially massive number of men under arms and direct them to whatever part of the country he felt the relevant crisis required. This would seem to have made the state militias a kind of “standing-army-in-waiting.” They were not career soldiers, of course, and were bound to lack the training and resources expected of a professional military force. Nonetheless, they represented a tremendous potential military resource in terms of their numbers and availability. And while it was doubtless true that militiamen from Pennsylvania might hesitate to use force against their fellow Pennsylvanians, militiamen from Virginia might not be so squeamish. The President, after all, was free to summon militia forces from anywhere in the country and to deploy them to anywhere in the country. Might he not thus seek to avoid potential difficulties by ensuring that only out-of-state militias were deployed to the crisis area in question? Was this not a perfectly sensible precaution?

The response of late 18^th century Americans to this expansion of the practical authority of the office of President was, in the main, somewhat ambiguous. While, as aforementioned, the dearth of militia volunteers in 1794 resulted in the implementation of a draft, which in turn led to riots in a number of urban centers, the Washington Administration was ultimately able to raise a force of some thirteen thousand men. And, upon deploying roughly half of those men to the purported crisis area in Western Pennsylvania, the assembled militia force did succeed in dispelling the tax resistors and their various supporters. Hardly any blood was shed in the process; militiamen acting under the direction of the federal government were not at any point required to engage in a significant exchange of fire with their fellow countrymen. But while in a different context this may have served to cast some doubt on the efficacy of the national government’s newfound military power, the actual outcome was substantially beneficial for the Washington Administration and its Federalist supporters. The national government, under Washington’s direction, had shown itself to be willing and able to deploy the resources at its disposal for the purpose of enforcing the law of the land. A call had gone out, men had been mustered, and a force had been deployed to the trouble spot. Not only was order thereafter swiftly restored, but the entire policy program of the nascent Federalist faction received a significant popular boost.

Granted, the Whiskey Tax itself remained notoriously difficult to collect, to the point that both the Washington Administration and its immediate successor ceased to devote much effort to its enforcement. All the same, the Federalist candidate, sitting Vice-President John Adams (1735-1826), defeated Democratic-Republican stalwart Thomas Jefferson in the next presidential election in 1796, and Federalists retained strong majorities in both the House and the Senate. Notwithstanding the popular discontent that continued to linger in Western Pennsylvania, the demonstrations that had accompanied the aforementioned militia draft, and the ongoing antipathy many Americans continued to feel towards the concept of a centralized government possessed of substantial military resources, the expansion of the practical power of the Executive Branch that President Washington had overseen was broadly accepted by the American people. Not everyone was particularly sanguine, of course, with the resulting enhancement of federal authority. Over the next several years, pamphlets were printed, speeches were delivered, and political societies were organized, all for the purpose of denouncing the actions of the Washington Administration and rallying support for a Democratic-Republican alternative. And in time, owing both to further discontent stirred up the Jay Treaty debate and the actions of the Adams Administration during an undeclared naval conflict between the United States and Revolutionary France – not the least of which was the passage by Congress of the notorious Alien and Sedition Acts (1798) – these efforts did bear fruit. But in the immediate, though the government of the United States of America had claimed for itself more power than either the Framers of the Constitution or its supporters in the state ratifying conventions  had ever believed would be the case – with the probable exception of Alexander Hamilton – public opinion was generally quiescent. A major backlash was slow in coming and arrived ultimately in the form of a democratic revolution rather than an armed one.

The sense of triumph which the Washington Administration doubtless derived from this outcome is arguably embodied in the aforementioned explanation which Washington himself offered concerning the pardons he extended to the two Whiskey rebels sentenced to death. “Though I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested,” he declared in his seventh State of the Union Address,

Yet it appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.

Consider, for a moment, Washington’s choice of words. He did not decry the very thought of sentencing two of his countrymen to death for resisting a law which they felt was unjust. Nor did he seek to remind his fellow Americans that resistance to a government perceived as tyrannical and unrepresentative was one of the fundamental principles upon which the American republic had only recently been founded. Rather, in a manner which his critics among the Democratic-Republicans doubtless compared to that of a monarch who seeks to be viewed as equally firm and merciful, he asserted his belief that the maintenance of the public good required a government to promote “moderation and tenderness” as well as dignity and safety. His pardon of the otherwise doomed rebels, then, far from being in recognition of the fact that they had done nothing so abhorrent to American sensibilities as to warrant their deaths, was instead a gesture intended to project a sense of magnanimity on the part of the national government for the purpose of engendering the respect and affection of the American people. 

 

Washington’s expression of this sentiment did not qualify him for the title of tyrant, of course, or otherwise indicate that he had anything less than the wellbeing of his countrymen in mind. But the tone thereof arguably did represent a new phase in the history of executive power in the American republic. The President of the United States evidently no longer needed to justify the use of coercive authority beyond what the law explicitly required. Recall, for a moment, the circumstances of the Anglo-American crisis of the 1760s and 1770s. Not only did the representatives of the various colonies/states assembled in Congress demand a rigorous explanation from Parliament and the Crown as to their collective authorization of military force in America, but they also went to significant lengths to justify their own actions – up to and including taking up arms – by way of appeals to political and moral philosophy. It wasn’t enough for successive British governments to explain to their nominal constituents in America that the presence of military personnel in the colonies was entirely in keeping with contemporary British law. Nor, for that matter, did the colonists seem to believe that it would have been sufficient to simply take up arms against Parliament and the Crown without first establishing why such a course of action had become necessary. In the 1760s and 1770s, it seemed, Americans required the use of military force to be grounded upon a thorough and convincing analysis of commonly understood moral and legal principles. This may have constituted an extraordinary expectation, but it appeared at that time that most Americans considered the deployment of armed soldiery among a civilian population to be an extraordinary circumstance.

This attitude seemed to have softened considerably by the middle of the 1790s. There were certainly objections raised to Washington’s invocation of the Militia Act in response to the steady escalation of the Whiskey Rebellion over the course of 1792, 1793, and 1794. Many people did not much like the idea that American militiamen were going to be deployed on the orders of an increasingly centralized government for the purpose of arresting their fellow citizens and enforcing obedience to what many of them considered to be a thoroughly unjust law. But while the aforementioned draft riots constituted perhaps the most severe expression of this sentiment, the plans devised by the Washington Administration to meet the supposed challenge posed by the Whiskey Tax rebels nonetheless proceeded apace. Indeed, it is noteworthy that, determined to undertake an extraordinary – or at the very least wholly unprecedented – exercise of federal power, President Washington did not seem to feel the need to make any extraordinary gestures. He did not address the various members of Congress for the purpose of explaining why he felt it necessary to federalize the state militias and send them to confront the insurrectionists in Pennsylvania, or solicit their advice, or request their approval. Nor did he meet and confer with the governors of the states whose citizens he was preparing to call into federal service. The law and the Constitution required only that he request the authorization of a single Supreme Court Justice, which he quickly sought and received. The only additional action which he took was to issue a proclamation on August 7^th, 1794, the reasoning deployed therein being somewhat less than morally rigorous.

Rather than attempt to explain to his countrymen why it was that the Whiskey Tax itself was so necessary to the public good as to justify the use of military force to see it collected, Washington instead seemed intent on establishing it as a principle that disregard for the law – any law – was cause enough for coercive action. To that end, having first described the insurrectionists in Western Pennsylvania as, “Armed Banditti” – which is to say, little better than outlaws, thieves, or brigands – he went on to justify the deployment of the various state militias by asserting that, “Many persons in the said western parts of Pennsylvania have at length been hardy enough to perpetrate acts which I am advised amount to treason, being overt acts of levying war against the United States [.]” Treason, it bears remembering, remains among the most serious crimes a person can be accused of committing under the laws of the United States, and is one of the few explicitly defined in the text of the Constitution. As stated in Article III, Section 3, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” By essentially invoking this definition, Washington arguably dismissed any further need to justify the use of coercive military force. The commission of treason was reason enough to bring to bear every resource at the disposal of the government so offended.

The text which followed this rather startling accusation did not go much deeper into the social or moral priorities which the proper enforcement of the Whiskey Tax was supposed to fulfill. Indeed, the tax itself hardly seemed to factor into Washington’s thinking at all. Rather, it was the mere fact that the law was being broken in so brazen and widespread a manner that he felt it necessary to deploy the military resources of various states. Having denigrated, at length, the intentions of those, “Whose industry to excite resistance has increased with every appearance of a disposition among the people to relax in their opposition and to acquiesce in the laws [,]” he accordingly went on to declare of the actions he was preparing to take that,

The essential interests of the Union demand it, that the very existence of Government and the fundamental principles of social order are materially involved in the issue, and that the patriotism and firmness of all good Citizens are seriously called upon, as occasion may require, to aid in the effectual suppression of so fatal a Spirit.

The “patriotism and firmness” of those residents of Western Pennsylvania whose lives and livelihoods had been negatively impacted by the Whiskey Tax, and who chose to seek relief through organized resistance, were evidently of no consequence, perhaps because their disobedience of the law meant that they were no longer, “Good Citizens [.]” What seemed to matter, on the contrary, were abstract concepts like, “Social order,” “The essential interests of the Union,” and, “The very existence of Government [.]” What the Washington Administration hoped to achieve by enforcing the Whiskey Tax, or what the supposed rebels hoped to achieve by resisting it, was evidently of little importance. The law had been broken, and that in itself justified treating the offenders – until such time as “moderation and tenderness” were called for, of course – as enemies of the American republic.

That Washington felt compelled to approach the Whiskey Rebellion in such a manner, and the fact that his chosen approach was broadly accepted, augured favorably for the office of President and the authority that it could claim to possess. Above and beyond the fact that the Federalists appeared to have successfully demonstrated both the need for a active, powerful central government and the efficacy thereof, the stage had effectively been set for subsequent occupants of the office of President to continue expanding the prerogatives at their disposal in the foreign and domestic spheres alike. Not only had the Washington Administration established the primacy of the American chief executive in matters of diplomacy and widened the scope of action available to the President in times of national crisis as matters of legal and political process, but they had also secured the far more valuable commodity that was widespread social sanction. The American people had seen the first President of the United States assert himself in a number of ways far beyond what the plain text of the Constitution would otherwise have indicated was possible. Did they cry foul? Yes, some of them did. Did they denounce the President as a tyrant? Again, yes, some of them did. But what they didn’t do was channel their discontent – as they had but twenty years previous – into an armed campaign of resistance and revolution. Rather, in general, they responded with approval. Notwithstanding the manner in which many of them initially thought the office of President was supposed to function, Washington defined the manner in which it was going to function from that point forward, and the American people seemed to alter their expectations accordingly. Even self-confessed members of the Democratic-Republican faction – who did absolutely consider Washington’s actions to be tantamount to tyranny – refrained from calling for the violent overthrow of the reigning Federalist hegemony. Rather, seeming to at least partly accept the status quo that Washington had established, they instead dedicated themselves to defeating their opponents at the polls. If subsequent Presidents of the United States of America were going to be as powerful as Washington had shown himself in practice, then it was the responsibility of the Democratic-Republicans to ensure that only someone who could be trusted to abstain from abusing their authority – i.e. a Democratic-Republican – ever held the office again.