THE CONSTITUTION is not easy to understand, for one reason because it is arranged in an arbitrary order ¾ Congress, President, courts, functions, amendments, etc. Often, any one subject can only be understood by reading items scattered through the articles. Here, we shall make a topical review, collecting together provisions that are relevant to one or another issue.

The original Constitution had numbers only for the Articles and the Sections; later generations have found it convenient to number also sub-sections. Here we shall number items thus:

I, 8 [8] to mean Article I, Section 8, sub-section 8.

Because we have a highly developed theory of the functioning of the common defense, it is convenient to consider this topic first.

[Preamble:] We the people of the United States, in order to form a more perfect union . . . provide for the common defense . . . .

I, 8 [1]: The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense . . . .

I, 8 [11] [The Congress shall have power] To declare war, grant letters of marque or reprisal, and make rules concerning captures on land and water:

I, 8 [12] [The Congress shall have power] To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years:

I, 8 [13] [The Congress shall have power] To provide and maintain a navy:

I, 8 [14] [The Congress shall have power] To make rules for the government and regulation of the land and naval forces:

I, 8 [15] [The Congress shall have power] To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions:

I, 8 [16] [The Congress shall have power] To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

I, 10 [1] No State shall enter into any treaty, alliance, or confederation; grant letters of marque or reprisal;

I, 10 [3] No State shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in a war, unless actually invaded, or in such imminent danger as will not admit of any delay.

It seems that the Constitution renders the States defenseless ¾ except for the militia ¾ until the Congress declares war. The States may defend themselves if actually invaded, but have no "troops, or ships of war" for the purpose.

This conclusion plainly requires us to look again at the words "Congress shall have power." The contemporary understanding is, "Congress shall have discretion;" Congress is regarded as an equal of the States.

However, the Continental Congress was accepted as the equal of the States; the Articles of Confederation were a "social contract†" between States and Congress. And the Articles of Confederation read rather differently: "The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war . . . ." "Right" and "power" are, plainly, distinct.

It is "right" which implies discretion; "power" is merely what we today would call authority, the duty to fulfil a specified function. The omission of the gracious words "sole and exclusive right" has the effect that the Constitution means simply, "Congress shall;"

Thus the States are not defenseless; rather, a State can require the Congress to "declare war" on its behalf.

Are we entitled to place this interpretation on the words, to reduce Congress to a mere authority? We are indeed ¾ because Congress had been required to defend the States under the Articles of Confederation:

Art. III: The said States hereby severally enter into a firm league of friendship with each other for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

Unless the Congress is still required to defend the States under the Constitution, the Constitution would not have been a "more perfect" union than that of the Articles.

But there is still the practical problem, what defense do the States have against the Congress? The answer is, that the officers of the militia are appointed by the States; the militia would be lost to Congress if Congress were to threaten a State.

The claim of today’s Congress is that it is authorized to protect the States, or even the citizens. Is there any justification for this?

IV, 4. The United States shall guarantee to every State in this union, a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.

We see that there are two kinds of protection; in one the U. S. is merely responsive, and in the other it is not. The explanation is not far to seek; the words "domestic violence" and "invasion" correspond to the distinction between events confined within and starting beyond the State boundaries. Attacks from outside the State inherently demand that the remainder of the States act ¾ through their agent, the Congress. But anything happening within the State concerns that State and does not, equally, concern all the other States; for the other States to assist is a privilege rather than a right.

Observe that the States are expected to enjoy domestic tranquillity, to have a republican form of government. If each county can replace its own officers, and is represented in the State, then there is no reason why there should be domestic violence (presumably it is apparent that domestic violence is a public phenomenon, not something that occurs in private.)

The kind of "protection" described here is very close to defense; the fact that any State can summon the Congress to its assistance will act as a deterrent to the initiation of violence. Thus constitutional "protection" is sharply distinct from the "protection" the States offer today, e.g. selling licenses that protect the purchasers from being prosecuted for not having a license.

The States also have the right to alter or abolish the legislative, the executive, the judicial powers.

VIII The ratification of the conventions of nine States, shall be sufficient for the establishment of this constitution between the States so ratifying the same.

And the States have the right to secede: the present union was formed by nine States seceding from the "perpetual union" set up by the Articles of Confederation.

I, 2 [3] Representatives and direct taxes shall be apportioned among the several States which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.

V Provided, . . . that no State, without its consent, shall be deprived of its equal suffrage in the Senate.

I, 2 [4] When vacancies happen in the representation from any State, the executive thereof shall issue writs of election to fill such vacancies.

I, 3 [1] The Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof, for six years . . . .

I, 3 [2] . . . if vacancies happen by resignation, or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.

I, 4 [1] The times, places and manner of holding elections for senators and representatives, shall be prescribed in each State by the legislature thereof: But the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators.

The States have a right to equal representation in the Senate, and representation in the House that

I, 2 [3] Representatives and direct taxes shall be apportioned among the several States which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.

I, 9 [4] . No capitation, or other direct tax shall be laid unless in proportion to the census or enumeration herein before directed to be taken.

Apportionment means that if Congress lays a tax on [horseless] carriages, and there is one car[riage] per person in Nevada but one per ten persons in Rhode Island, then the tax on each car[riage] will be ten times higher in Rhode Island than in Nevada. If taxes were not apportioned, then Congress could, by taxing one article rather than another, tax one State more highly than another.

Today, the word "direct" is regarded as obscure. It is difficult to see what other word can describe a tax collected from the citizens of a State by the U. S. ¾ as distinct from one where the U. S. treasury is "supplied by the several States," out of "taxes . . . laid and levied by the authority and direction of the legislatures of the several States."

I, 8 [1] The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States: