Charting Next Steps

The time has come to start charting next steps.  

Since my last discussion of the incompetence of the national government, the supply chain has been disrupted, adding supply shock inflation to the general inflation taking hold. Firings resulting from an unprecedented vaccine mandate, imposed through OSHA regulations, are a cause of the supply shock. That, and China, which the United States is incompetent to deal with.

The Department of Justice—with the general cooperation of the federal bench—construes the Bill of Rights as if it permits pretrial detention, without zealous counsel who have access to all the evidence, and without a trial date. Punishment first and trial afterwards. If there is a trial; the purpose of pretrial detention is to squeeze out plea bargains.

This same Department of Justice believes—again along with a good deal of the federal bench—that this same Bill of Rights, whose express provisions regarding unreasonable bail, due process, search and seizure, speedy trial by a jury of peers can be ignored, protects the use of condoms and abortion. Parchment rights mean little if they are disregarded.   

The red-pilled Right mostly grumbles, partly because intimidation works. The grumbling fantastically contemplates that various idealized heroes, special forces, cops, and firemen, who have had enough of the incompetence, will take matters into their own hands and restore the Constitution, or effect an amicable division of red and blue America—any day now. Not sure why any of that is attractive. Very sure none of it is happening. 

More soberly, amidst the cheers of “Let’s Go Brandon!,” there is hopeful talk about the GOP in 2022 and 2024. But seesawing partisan elections, driven by different brands of identity politics, trading control of an incompetent national government, likewise will not solve our problems.

Rather, it portends steady decline, flight from blue to red states, growing incompetence, more unreasonableness from one year to the next all to the beat of an annual mantra that the new low will be followed by an inevitable rebound that never comes.

Passivity driven by the belief that Americans no longer control their own destiny—that they will either be rescued or historical cycles of up and down will alter the fundamentals—ensure the rebound is always one year off.

That is, unless Americans start acting like Americans again. Americans must start thinking about replacing our national government with a new form of government that can control itself, and if it cannot control itself, then at least be less dangerous.

It helps to rewind a bit. In 1787, the Articles of Confederation limited the national government to matters of foreign policy and gave it no power of taxation. Most powers resided with the states; and they used their powers, often profligately. The United States ran aground on financial issues as debtors and creditors lobbied—and corrupted—state legislatures to impair or enforce contracts. The recession that ensued was deep, and the United States was at risk of reconquest by foreign powers.

In reaction to this, the Confederation Congress called for a constitutional convention to propose amendments to the Articles. The result was the proposal for a new constitution to be ratified by means that were not legally contemplated by the Articles. 

And so was born, with a touch of scofflaw, the Constitution. The Constitution increased the power of national government, making it partly national and partly federal, drawing its privileges directly from the people, and having a long list of enumerated powers, including the regulation of interstate commerce and the power to tax and to collect taxes. It directly curbed the power of the states, barring the coining of money and the impairment of contracts. 

The United States went from a national government with a unicameral legislature and severely limited powers to the form we now know: three branches of government, the executive, judiciary, and bi-cameral legislature. And it was great. But now it has slipped the leash and foams at the lips. It is both on the loose and not working. 

What would George Washington do? Change it. To change the charter, people must talk about it. Candidly. Even those still enthralled by the old Constitution should admit that the only way to save it would be to consider the alternatives seriously.

Let’s identify some of those deficits as a starting point for identifying what a new charter would not look like. 

  • The Constitution has not been amended, soup to nuts, since 1971. Fifty years; that’s two generations. The last time the Constitution went 50 years without an amendment was 1803 to 1865. A new charter has to be one that is amendable by popular process only, and not by the courts. 
  • The Constitution, in many respects, is a dead letter. The legislature delegates its rulemaking power to the executive. The executive legislates even without such express delegations, e.g., vaccine mandates. The executive makes war without anything that can be sanely called a declaration of war. In 2020, the express provisions of the Constitution with respect to the election of electors were ignored.

    Much of this is the fault of the Supreme Court which has permanently established itself as a super legislature, when it wants to, and declines to rule on usurpations by others. A new charter might deprive the judiciary of the final say on what the law is, to end the practice of using judicial review as a short circuit of popular constitutional amendment. 
  • Congress is insufficiently representative for the power it has. There are 435 representatives in the House. That is 760,000 people per representative. Germany, England, and France all have roughly 100,000 people per popular representative. As the number of the represented in a congressional district grows, propinquity, or nearness to your representative, fades exponentially.

    If you want to know why Congress does not represent American interests, it is because it is closer to the lobbyists than to the represented. A new charter might have more representatives in its popular legislature; it might be that the nation would need to be divided into regions where legislatures with sufficient propinquity and practical manageability are possible.
  • The national government attracts bad people. We all see what a celebrity hound Dr. Anthony Fauci is. Dr. Fauci, 80, has been playing king of the hill at the National Institutes of Health since 1984. While Fauci is a singlularly vain and incompetent man, to paraphrase Gilbert and Sullivan, he is the very model of a modern major general when it comes to the administrative state.

    The permanent bureaucracy is overflowing with people like Dr. Fauci. They work in government. Their spouses work in related fields. Many of them are practitioners of the new religion, wokeism. They make a great deal of money, and despite their sanctimonious opinions of themselves, they are not in honest work. A new charter should severely limit the power of the national government to make it less attractive to the vain, incompetent, and malignant and to curb their power should they enter government (which they will).

The space here is too short to make a detailed proposal, at least for now. But in the spirit of 1787, I propose we talk about it, continue to talk about it, and invite others to talk about it, because I do not anticipate that the Constitution will spontaneously begin working again. If it does, no one would be happier than I. But if it does not, only discussion, and if necessary implementation, of alternatives can arrest the continuing degradation. 

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About Jay Whig

Jay Whig is an adjunct fellow of the Center for American Greatness. Whig practices law in New York and a resides in Connecticut, specializing in insolvency and restructuring. Opinions are his own.

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