Preserving
the Security of the Constitutional Order in the United States Insurrection
and the
Administrative State -
Kathleen Chandler - 
January 17, 2021.
Washington DC.
Why
did Congress so quickly take up impeachment on the basis of charging
Trump with "incitement to insurrection?" What does it mean for a Biden
administration and the movements of the people for rights? Part of the
problem the rulers are contending with is that existing political
arrangements cannot solve the people's demands for equality and
accountability. This drive of the people was evident in many actions in
2020 and since, not only in terms of opposing racist police brutality
and killings, but also by nurses, warehouse workers and other frontline
workers demanding COVID-19 protections and free health care for all. It
can also be seen in demands for income security throughout the COVID
crisis, opposition to evictions and more. The growing conflicts within
and between Congress, the Presidency, military and policing agencies
also show the rulers cannot solve these conflicts among their
contending factions vying for power. The
rapidity with which Congress took up the charge of inciting
insurrection is significant, as was its repetition by the media.
Everything is being taken in this particular direction. At the same
time, this process is separate from the one under the auspices of the
Department of Justice (DoJ) which is part of the Executive. The DoJ is
not bringing charges of insurrection against individuals, or even
rioting. Thus far individuals are mainly being charged with violent
entry and disorderly conduct. The charge
brought against Trump of inciting insurrection uses wording from the
14th Amendment of the U.S. Constitution even though the constitutional
argument of what is insurrection is given in Article 1 concerning
Congressional powers. These powers are specifically delineated in
Article 1 and include the power to declare war, levy taxes, etc. This
is where it says: "The Congress shall have Power to: Provide for
calling forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions." The House is not using Article 1,
but rather the 14th Amendment, which is from the time of the Civil War.
Unlike Article 1, it talks about removing people from office and
blocking them from holding office in the future. It is noteworthy that
the House is not giving the constitutional defence of the Republic, but
rather what punishments can be given to officials charged with
incitement to insurrection. Impeachment is the
Congress acting against the Presidency, with both Congress and the
Presidency vying for greater power. This is occurring in conditions
where the Executive has usurped and concentrated far greater powers in
the Presidency than any other branch of government. There is no
"balance" of powers and impeachment will not change this reality.
Following the January 6 events at the Capitol in Washington,
DC, the House Judiciary Committee quickly drew up a 70-page document
giving the arguments as to why Trump should be impeached. The document
gives two main arguments: 1) to safeguard the nation between elections;
2) it is necessary to preserve the security of the constitutional
order. The second is the argument that they are relying on at this time.
Preservation of the constitutional order is not a new
argument, and is a very basic one that has been used at various times.
Leading political scientists, think-tanks, academics and policy makers
all elaborate on this argument, underscoring the need to defend what is
called "the administrative state." This is all the bureaucracies,
military, policing and regulatory agencies involved in maintaining the
state and preserving the constitutional order. This administrative
state persists from one president to the next. Historically,
especially when dealing with the executive power, insurrection posed a
problem for a constitutional order. The conception of executive power
involved an "intermingling of external and internal security," and
conflict between morality and security, something often seen today in
debates on security versus civil rights. There are many writings from
the period of WWII to today speaking to these difficulties. One, for
example, in 1946, was called Total War and the Constitution,
by Samuel Corwin, dealing with the constitutional implications of U.S.
wartime experience. Corwin shows how the power of
the President grew at the expense of the other branches of government.
He put the matter in terms of the regulatory agencies of the
administrative state. He asks, "How far can we continue to progress in
the direction of conferring upon administrative officials more and more
virtually unreviewable discretionary power over the lives and
activities of men without finally reaching a state of absolutism that
can no longer be called a liberal democracy?" Consider
that the bureaucracies now are far, far larger than when Corwin was
writing, numbering in the hundreds of thousands. Corwin
was one of the teachers of the teachers being trained in the expanding
bureaucracy, which took institutional forms. These include think tanks
like the Research and Development Corporation (RAND) and the Council on
Foreign Relations (CFR) both places where the rulers today gather to
work out policy and how to preserve the state in conditions of great
conflicts among and between them and in relation to powers abroad. RAND
is a global policy think tank created in 1948 by Douglas Aircraft
Company to offer research and analysis to the United States Armed
Forces. These think tanks are financed by the U.S. government and
private endowment, corporations, universities and private individuals.
They get public funds for planning nuclear strategies, dealing with
urban uprisings, and so forth. The arguments put
forward are from institutions. They are not ideas in someone's head;
they are not random beliefs. The think-tanks and government
institutions have their own publications, connections to universities,
connections between industry and government and so on. There is a
materiality to the culture. The administrative
state is institutionalized and carries great weight. Part of the
difficulty Biden will face is how to unite these contending forces.
Much of what is done in relation to immigration and border issues,
including in relation to trade, as well as for the environment, and
financing, like the Federal Reserve, are done through regulations and
the policies of these institutionalized bureaucracies. Preserving
the Constitutional Order Against Communism The
period called the Cold War was significant in providing anti-communist
arguments for the preservation of the constitutional order which is
fundamentally an anti-communist conception. It involves a fundamental
question that still confronts us, which had an institutional form. That
question is: How did the world go from an anti-fascist war and
anti-fascist united front and the institutions that came out of that,
like the UN, decolonization, de-nazification, to immediately, in the
late 1940s, becoming an anti-communist front? That anti-communist front
took an institutional form. Coming up to today when
it is written that it is necessary to preserve the constitutional
order, as the Judiciary Committee did, the same arguments are given
from the time the transformation took place from an anti-fascist united
front into an anti-communist front organized from the U.S., using an
Anglo-American alliance. This was the so-called English-speaking
peoples Winston Churchill referred to in his Iron Curtain speech
delivered on March 5, 1946 in Fulton, Missouri. This shows up when
someone has to immediately put out a 70-page document and organize it
under the title of Preserving the Constitutional Order.
There is an institutional basis for what is occurring which it is not a
fight between fascists versus neo-liberals. There may be such fights
when it comes to setting policy objectives, but not when it comes to
the main issue at hand. It is a matter of preserving the constitutional
order against communism. In many ways one can say that Madison, a main
author of the Constitution, gives the original anti-communist argument.
He said the faction of the propertyless must be kept under control and
out of power. Madison comes up with an argument about the tyranny of
despots turning into a tyranny of the majority, the propertyless, which
had to be prevented. This anti-communism is fundamental to the
arguments now being given about impeachment, insurrection and the
Constitution itself.  Impeachment and
preserving the constitutional order are not just directed at efforts to
sort out fights among the ruling class -- but mainly at disempowering
the people who since March spent the whole summer and fall finding ways
to make known their demands for social and political equality. As well,
workers made demands for security in terms of jobs and healthcare and
for a peaceful transfer of power, which was not partisan and involved
about 600,000 people who were planning a general strike on January 20
if Trump called out the military.
The
demands of the people are not coming from a defence of the
Constitutional order but as rights belonging to the people. The demands
come from the quality of being human, demanding human rights, equality
and accountability. The clash between the two conceptions is very real.
Biden and the Democrats are striving desperately to block the demands
for equality and rights and bring youth and workers back into the fold
of this dysfunctional constitutional order, which has shown it cannot
provide equality. There is little doubt that this striving for equality
and people's empowerment and governing arrangements that provide for
that, will intensify in the Biden administration. 
January 2021. Banner
drop in New York City demands permanent status and protection
for migrants. Banner drops and other actions for migrant rights and to
abolish ICE are being organized in the days before and on Inauguration
Day.
This article was published in
Volume
51 Number 3 - January 20, 2021
Article Link:
Insurrection
and the Administrative State
Website: www.cpcml.ca
Email: editor@cpcml.ca
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