Post-Constitutional America

If you keep up with this blog, you probably keep up with the news. This was a remarkable week in America. A 36 year old allegation of sexual assault, with no extrinsic evidence to support it, has effectively ended the career of a federal judge with an otherwise spotless record as a judge and a gentleman. Whether you believe Dr. Ford or not, it is indisputable that she was not, in any way, constrained by the burden of proof. It fell to Brett Kavanaugh to prove his innocence. We are in a new era in American history - the Post-Constitutional Era.

As is the case with most historical eras, reasonable minds can differ on when the era began. George W. Bush and the Republicans certainly bent the rules after 9/11 with "enhanced interrogation" techniques, mass surveillance, and the invasion of Iraq. Barack Obama and the Democrats took it to a whole new level, expanding mass surveillance, dramatically increasing the power of the administrative state, spying on the Congress, and ultimately on the Trump campaign. Donald Trump has been in power for less than two years, but already he has been the target of an unrelenting, extra-Constitutional effort by the administrative state and Democrats to remove him from office. 

The Post-Constitutional Era we are in marks the end of the Republic. Historians will define the future by who was in power at what time. This is very much the way historians define other totalitarian regimes and monarchies. We define eras in European history as the "Victorian Era," after queen Victoria, for example. We define Soviet politics by the "Stalin Era" or the "Khrushchev Era." African and South American history is defined by "regimes," like the "Castro Regime," the "Chavez Regime," the "Mugabe Regime." 

Like these other totalitarian societies, power may shift from one faction to another or one wing of the government to the other, but power will be the defining characteristic. Also characteristic of this kind of government is a total disregard for any individual rights or the rights of the minority. Mobs of well armed "political parties" sweep into power and mercilessly stamp out the opposition. Hangings, beheadings, shootings, gas chambers and concentration camps are all publicly and routinely employed to deter opposition to the regime. Opposing factions literally hate each other and fight for generations in a futile effort to exterminate the other side. 

But, that can't happen here ... can it?

Well, no, so long as we are a Constitutional Republic. But that is exactly the problem with Post-Constitutional America. Our Constitution guarantees individual rights through the use of due process. At its core, due process is about providing a means by which an aggrieved individual can protect his or her individual rights. Those rights are enshrined in our founding documents as life, liberty, private property, and the right to be generally left alone. The Constitution provides Americans with a structure for resolving differences and espousing views. However, in the past 60 years, one faction of American society has used that very structure to espouse its destruction. They have largely succeeded.

Take for example, the Supreme Court. For 170 years, the Court largely avoided rendering opinions that conflicted with existing precedent or the text of the Constitutional. There were exceptions to be sure, but they were rare. Beginning in the 1950's, largely because of the Civil Rights movement, the Court had no choice but to intervene to guarantee the Constitutional rights of African-Americans. While those decisions were morally correct, the door was opened to the Supreme Court being the sole arbiter of what is or is not right in America. In many decisions that followed, the Court supplanted its wisdom for that of the Legislature and the President because the other two branches of government were not acting quickly enough.

Most Americans born after 1960 know it no other way. We've all been taught that this was always the intent of the Founders, but that's simply not true. The Supreme Court is not the only guarantor of Constitutional rights. Article One of the Constitution created a Legislature - the most important branch of government in the eyes of the Founders. Article Two created the Presidency. It was not until Article Three that our Founders created a Supreme Court, and even then, it was without the power of judicial review. Other federal courts were to be created by the Congress, not the judiciary. 

In modern America, however, a single federal judge can issue and nationwide injunction against the other two branches of government without a trial.  If a single federal judge doesn't like a particular regulation, policy or piece of legislation, poof, it's ensnared in a tediously slow process for years. And that is why these Supreme Court confirmation hearings have come so contentious. Nearly any case can be brought in an ideologically friendly federal court to frustrate the will of the people. Consequently, both conservatives and progressives have recognized the enormous power they wield if they have ideological control of the courts. This was never intended by our Founders.

Likewise, nothing in the Constitution provided the Executive branch with the power to create a permanent bureaucratic state with the power to legislate by fiat. In fact, it wasn't until after World War II that the bureaucracies were given any permanent status. Prior to that, it was common practice for a new President to replace most if not all of the previous administration's bureaucrats with his own supporters. As a result, the administrative state remained unstable and wielded far less power. 

Now, of course, we have permanently placed, Obama era bureaucrats actively working to impede and ultimately impeach the new President. These saboteurs, as has now been well-documented, weaponized the FBI, CIA, DOJ and IRS against grass roots conservatives, President Trump, and his supporters. 

There are three old adages everyone should memorize in order to survive in Post-Constitutional America: (1) Might makes right; (2) What goes around comes around; and (3) Turnabout is fair play.

A society in which individual rights are not protected is a society in which the strong prey on the weak. It is a society in which the majority or an elite minority dictates privileges to the rest of the society. Those rights then may arbitrarily be taken away. The extent to which privileges are granted is wholly dependent on the level of anger between the various factions. In Post-Constitutional America, minorities and those who can't fight back will be dependent on the benevolence of the ruling faction and the strong. Those whose actions have compromised the Constitution, or who attack our founding documents as old, white, and out of fashion, better be really, really sure that they will always be the stronger faction. Otherwise, they will have destroyed the only protection they had.

As they say, what goes around comes around. If you allow a man's reputation to be destroyed by unsubstantiated allegations of sexual assault, it is only a matter of time before your own reputation may be at stake. If you uproot hundreds of years of Constitutional precedent to protect your faction, you better be really, really sure to hold on the power forever. The great pendulum of history will eventually swing back in the other direction.

Finally, those who have used extra-Constitutional means to attack their opponents better be really, really sure that their opponents will not do the same. There is nothing more insulting to the group out of power than a double standard. Double standards become rallying cries. When the rule of law applies to you, but not to some elite political group, you might rally around a cry to "lock her up." If you used the entire national security apparatus to spy on your political enemies, you may find yourself under constant state surveillance in the future. Worse, you may find yourself locked up and all of your friends under constant surveillance. 

This is because it is human nature to believe that turnabout is fair play. It is the origin of the "golden rule." If you do it to him, he may do it back to you. World history is replete with "oops" moments during which some elite faction suddenly found itself out of power. Farm confiscations in South Africa, the Guillotine in France, civil war in Rwanda, Gaddafi, the Romanovs, and Hussein, for example. 

Post-Constitutional America will not be the progressive utopia many Americans think it will be. It will be a regressive dystopia. Weak and entitled Americans possessing a victim's mentality will be truly victimized. Americans who rely on others to protect and defend them will be alone and unprepared. There will be fewer history degrees or psychology degrees, fewer therapists and lawyers. Those with any sort of wealth will only be able to protect that wealth through force or membership in the ruling faction. 

Constitutional government is necessarily deliberative. The Constitution makes change hard, and that is exactly what our Founders intended. Sometimes, that makes social change take too long, but it also ensures that once that change happens, it is hard to reverse. Progress is slow, but permanent. Once a right is recognized, it is very difficult to take it way in a Constitutional Republic. The opposite is also true, however. Once a right is taken away from a particular group -  like, say, the right to due process, - it is eventually destroyed for everyone. Society then becomes unequal, divides into factions, each seeking to impose its will on the other through force. So be careful what you wish for.