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"Common Defence?" or "National Defense?"

Wednesday, May 17, 2006 Leave a comment Go to comments

Why Not Have Both a Common Defence and a National Defense?

Close-up of view of the Preamble to the U.S. Constitution available online at the National Archives. The mark-up is my work in Adobe Illustrator and the cropping is done in Microsoft Picture-It!.

United States Senate Document No. 108-17
108th Congress, 2d Session
2002 Edition: Cases Decided to June 28, 2002
We the People of the United States, in Order to form a more perfect Union, esablish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

PURPOSE AND EFFECT OF THE PREAMBLE

Although the preamble is not a source of power for any department of the Federal Government, {fn 1} the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution. {fn 2} ‘‘Its true office,’’ wrote Joseph Story in his Commentaries, ‘‘is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, ‘provide for the common defense.’ No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?’’ {fn 3}

FOOTNOTES:

1 Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905).

2 E.g., the Court has read the preamble as bearing witness to the fact that the Constitution emanated from the people and was not the act of sovereign and independent States. McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 403 (1819) Chisholm v. Georgia, 2 Dall. (2 U.S.) 419, 471 (1793); Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304, 324 (1816), and that it was made for, and is binding only in, the United States of America. Downes v. Bidwell, 182 U.S. 244 (1901); In re Ross, 140 U.S. 453, 464 (1891).

3 1 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 462 (1833). For a lengthy exegesis of the preamble phrase by phrase, see M. ADLER & W. GORMAN, THE AMERICAN TESTAMENT 63-118 (1975).

——-

My Second Amendment case is my attempt to get the U.S. Government to adopt a legislative scheme for the Second Amendment through the Ninth and Tenth Amendment and through the Common Defence clause of the Preamble that would promote the Common Defence Defence instead of defeating it through the Commerce Clause of Section 8, in Article I as viewed from a U.S. merchant seaman’s perspective through civil litigation in federal courts or ultimated in Negotiated Rulemaking (33 C.F.R. § 1.05–60) for Federal Preemption of State gun control lws that conflict, interfere with, infringe upon, or prohibit Second Amendment rights in intrastate or interstate travel on the basis of the Unconstitutional Conditions Doctrine.

I am tracking down the detailed history, (lexicology), on when, how, and why the spelling of defense became common in the United States. To that end my initial inquiry with Old Diminion University Library, Norfolk, Virginia. Lisa E. Munson Student assistant Librarian provided the following:

I went to the Oxford English Dictionary online and discovered that both the word defence and defense were used simultaneously, as early as 1297.” Lisa E. Munson, Student assistant Librarian, Old Diminion University Library, Norfolk, Virginia

She attached the following in her email response to my inquiry:

[Two forms: ME. defens, a. OF. defens (deffans, deffenz, desfens, –fans, etc.), Ph. de Thaun 1119, ad. L. dfensum thing forbidden, defended, etc., n. use of pa. pple. of dfendre (see DEFEND); also ME. defense, a. OF. defense defence, prohibition, ad. L. dfensa (Tertullian = defensio), f. pa. pple. dfensus, analogous to ns. in –ta, –ade, –ée. In Eng. where e became early mute, and grammatical gender was lost, the two forms naturally ran together; app. the spelling defence comes from the defens form; cf. hennes, hens, hence; penis, pens, pence; ones, ons, once; sithens, since; Duns, dunce. The spelling defense is that now usual in the United States.

(The pop. Romanic forms were de-, diffso, –fsa, cf. It. difesa, OF. des-, def-, defeis, defois, Norman défais, and defeise, defoise.)]

The action of defending, in the various senses of the verb, q.v. The order here followed is as in the verb, though this does not quite agree with the chronological data in hand.

I. The action of warding off, and of prohibiting. (Obs. or arch.)

1. a. The action of keeping off, or resisting the attack of (an enemy). Obs.
c1400 Destr. Troy 4715 In defense of hor fos, at on flete lay. 1494 FABYAN Chron. VI. cxcix. 206 For ye defence of his enemyes. 1543-4 Act 35 Hen. VIII, c. 12 For the maintenaunce of his warres, inuasion and defence of his enemies. 1588 LD. BURGHLEY Let. to Sir F. Walsyngham 19 July, 5000 footmen and 1000 horsemen for defence of the enemy landing in Essex.

b. ? Offence. Obs.

c1400 Destr. Troy 2692 What defense has ou done to our dere goddes?

2. a. The action of forbidding; prohibition. Obs. (exc. as in b, c).

a1300 Ten Commandm. 15 in E.E.P. (1862) 16 Hou he ssold e folke tech, and to ssow ham godis defens boe to ung and to olde of e .x. commandemens. 1303 R. BRUNNE Handl. Synne 11098 e sekesteyn, for alle at defense, yt he aue e body ensense. 1377 LANGL. P. Pl. B. XVIII. 193 Adam afterward aeines his defence, Frette of at fruit. a1450 Knt. de la Tour (1868) 56 Eve..bethought her not aright of the defence that God had made to her husbonde and her. 1526 J. HACKET Let. in MS. Cott. Galba IX. 35 The Gowernour wyll macke a partyculer deffens and comandment..for the anychyllment and destruccion of thys nywe bokes. 1600 E. BLOUNT tr. Conestaggio 94 The pope..wrote unto him by an other briefe, with defence not to proceede in the cause. a1698 TEMPLE (J.), Severe defences may be made against wearing any linen under a certain breadth.

b. in defence: (of fish, or waters) prohibited from being taken, or fished in. defence-month = fence-month. (Cf. FENCE n. 7, 11.)

1607 COWELL Interpr. s.v. Fencemoneth, All waters where salmons be taken, shall be in defence..from the nativitie. 1736 W. NELSON Laws conc. Game 77 The Fence-Month, by the antient Foresters was called the Defence-Month, and is the Fawning Time. 1758 Descr. Thames 174 Salmon shall be in Defence, or not taken, from 8th September to St. Martin’s Day. 1818 HASSELL Rides & Walks II. 63 During the defence months, which are March, April, and May, at which time the fish..are spawning. 1887 Pall Mall G. 6 May 10/1 Streams which were ‘put in defence in the reign of his late Majesty King Henry II., and have been so maintained thereafter’.

c. In the game of Ombre: see quot.

1878 H. H. GIBBS Ombre 32 If there be Defence, that is to say, if either of his adversaries undertake to forbid the Surrender.

II. The action of guarding or protecting from attack.

3. a. Guarding or protecting from attack; resistance against attack; warding off of injury; protection. (The chief current sense.)

1297 R. GLOUC. (1724) 197 Wanne hii forsoke ys, and for slewed, and to non defence ne come. c1300 K. Alis. 2615 Alle that hadde power To beore weopene to defence. c1325 Coer de L. 6840 Withe egyr knyghtes of defens. c1386 CHAUCER Clerk’s T. 1139 Ye archewyves, stondith at defens. 1393 GOWER Conf. III. 214 With thritty thousand of defence. c1400 Destr. Troy 9518 In deffence of e folke. 1418 E.E. Wills (1882) 31 A Doubeled of defence couered with red Leer. a1533 LD. BERNERS Huon lxvii. 230 His defence coude not auayle hym. 1548 HALL Chron. 57 He would rather dye in the defence than frely yeld the castle. a1699 A. HALKETT Autobiog. (1875) 53 [He] drew his sword in the deffence of the inocentt. 1709 Tatler No. 63 2 His Sword, not to be drawn but in his own Defence. 1797 MRS. RADCLIFFE Italian i, What are your weapons of defence? 1875 JOWETT Plato (ed. 2) V. 123 They are to take measures for the defence of the country.

b. Faculty or capacity of defending. Obs.

[c1470 HENRY Wallace VIII. 803 The defendouris was off so fell defens.] 1568 GRAFTON Chron. II. 1078 The walles were of that defence that ordinaunce did litle harme. 1593 SHAKES. 3 Hen. VI, V. i. 64 The Citie being but of small defence. 1596 SPENSER F.Q. V. ii. 5 A man of great defence. 1634 SIR T. HERBERT Trav. 20 Pikes and Targets of great length and defence. 1654 WHITELOCKE Swed. Ambassy (1772) I. 203 A castle..neither large nor beautifull, or of much defence.

c. In games: e.g. in Cricket, the guarding of the wicket by the batsman. Opposed to attack. Also, the batting strength or batsmen collectively.

1828 G. T. KNIGHT in Sporting Mag. Mar. 338/2 The object is not to bring the batting down to the bowling..not to diminish the means of defence, but to add to the powers of attack. 1830 M. R. MITFORD Our Village IV. 29 His hits were weak, his defence insecure. 1851 J. PYCROFT Cricket Field x. 203 Many a man..whose talent lies in defence, tries hitting. 1863 Baily’s Mag. Sports & Past. Sept. 44 The bowling..the wicket-keeping,..and the fine defence shown..was all cricket in perfection. 1875 J. D. HEATH Croquet Player 43 Upon the introduction of the heavy mallet..it was found that the ‘attack’ was a great deal too strong for the ‘defence’. 1883 Daily Tel. 15 May 2/7 Peate [bowler] got past his defence. 1901 R. H. LYTTELTON Out-door Games iv. 81 Any reform of cricket law has for its object a levelling up of attack and defencein other words, of batting and bowling.

d. line of defence (Mil.): (a) a line or series of fortified points at which an enemy is resisted; (b) Fortif. a line drawn from the curtain to the salient angle of the bastion, representing the course of a ball fired from the curtain to defend the face of the bastion.
1645 N. STONE Enchirid. Fortif. 18 And that shall cut off the flanke at F, and bring the line of defence in towards the middle of the Curtain. 1802-3 tr. Pallas’ Trav. (1812) II. 7 The reader will find a distinct view..of the gate and line of defence drawn from the side opposite to the Crimea. 1821 Examiner 216/1 Compelled to fall back to Capua, a strong point in the second line of defence. 1853 STOCQUELER Milit. Encycl., Line of Defence..is either fichant or razant. The first is, when it is drawn from the angle; the last, when it is drawn from a point in the curtain, ranging the face of the bastion in fortification.

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