Change, Change, Change

The sense of relief many on the Right are feeling about the results of last Tuesday’s Virginia election is misplaced. Republicans won statewide offices for the first time since 2009. But incoming governor Glenn Youngkin won with a slender 2 percent margin. The closeness of this race is due to the influence of Washington, D.C. 

Democrats working in and around Washington, D.C., will recalibrate their message—clumsily flubbed by Terry “parents have no say over children” McAuliffe—and control Virginia once again. 

Washington, D.C., was established in 1790 with the idea of curbing the capital’s influence in state politics. Today, Washington, D.C. is an imperial city, dominating not just the surrounding counties but the state of Virginia, and through it the entire country. It holds an iron grip, which Youngkin’s thin margin shows is near unbreakable, on the statewide offices of Virginia, including its electors in presidential elections. 

This is just one way in which our Constitution no longer functions as it should. As I have written elsewhere, it is gerontocratic, abusive, incompetent, woke, and needs to be replaced

The likelihood of the national government being reformed and restored to its original condition given its present deformations is so remote that the only prudent alternative is to attempt to replace it. Constitutional conservatism is not a viable path to conserving the spirit of 1776—or even the spirit of the Constitution, for that matter. Those who actually respect the founders and their Constitution should see that today, replacing the Constitution is the only way to remain consistent with the vision of the founders. 

The founders, like Aristotle, understood that polities, as with all things, are dynamic. They are continually improving or decaying. Aristotle called this metabole. We can call it change. A charter must change to accommodate the natural change of the polity, or the charter will begin to work at counter purposes, accelerating that decay.

With this in mind, the founders included amendment provisions in Article V of the Constitution that were much more liberal—that is, easier to execute—than those of the Articles of Confederation. 

Much is said about Alexander Hamilton’s caution in Federalist 49 against changing fundamental laws, thus “depriv[ing] the government of that veneration of which time bestows on every thing and without which perhaps the wisest and freest of governments would not possess the requisite stability.” 

This quote has been fetishized by constitutional conservatives. It needs to be placed in context. The founders had changed the Articles, radically, after just a few years of uncontested independence. They wanted the new charter to be set, like plaster, to give it a chance to work. 

People today instead should recall Madison’s commentary in Federalist 14: 

Is it not the glory of the American people, that whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom or for names, to overrule the suggestions of their own good sense, the knowledge of the situation, and the lessons of their own experience?

Let’s look at the dynamic history of the charters of the United States to illustrate the importance of change. The first charter was the Articles of Confederation and Perpetual Union. 

Adopted in 1781, the Articles never really worked. The Confederation Congress called a convention, which proposed a new charter to be adopted by means not legally contemplated by the Articles. The Constitution was then immediately amended 10 times.

The Bill of Rights originally was proposed to be 12 amendments, but several of the proposed amendments were not ratified. It took two-and-a-quarter years to adopt the Bill of Rights in 1791 (Amendments 1-10). The Constitution was amended again in 1795 (Amendment 11) and 1804 (Amendment 12), in processes lasting less than one year. 

The Constitution was not amended again until 1865. What occurred in the interim should be taken as a warning. The United States decayed. In time, it erupted in civil war.

Following the Civil War, the Constitution was amended in 1865 (Amendment 13), 1866 (Amendment 14), 1869 (Amendment 15), 1913 (Amendment 16 and 17), 1919 (Amendment 17), 1920 (Amendment 18), 1933 (Amendment 19 and 21), 1951 (Amendment 22), 1961 (Amendment 23), 1964 (Amendment 24), 1967 (Amendment 25), and 1971 (Amendment 26). The longest process for any of these amendments was just under four years. 

The Constitution, admittedly, was amended almost 30 years ago in 1992 (Amendment 27); however, that amendment had been in process since 1789, a full 202 years, and does not reflect a current deliberative process. 

So, if you exclude the 27th Amendment, the Constitution has not been amended in 50 years. No living American statesman has meaningful experience amending the Constitution.

In lieu of amendments, the Supreme Court imposed on the country something they are pleased to call a “living constitution,” one that amends itself without deliberative, popular, and procedurally defined ratification. This has given the country radical social change without the bother of any deliberative or popular mechanisms of self-government, in other words, we’ve had change without consent. Among these changes to the charter are, famously, Roe v. Wade (1973) and Obergefell v. Hodges (2015). Without any process of consent, the national government changed the most fundamental unit of society, the family. 

At the same time, our appreciation for the actual rights in the Constitution eroded. It bears repeating, ad nauseum, the Constitution bars any punishment before a competent trial. This is done through, among other things, guarantees of due process, such as having the right to see all the evidence for and against you (the Fifth Amendment), a right to a speedy trial (the Sixth Amendment), a right to a jury of peers (Article III), a right to reasonable bail (the Eighth Amendment), and a right to freedom from unreasonable search and seizure (the Fourth Amendment). 

These explicit, unmistakable rights have been ignored in connection with the riot of January 6, not just by the Department of Justice, but with the complicity of the judiciary. This has happened because both the Department of Justice and the judiciary regard the protest and riot of January 6 as so threatening—so antagonistic to their view of “our democracy” (which is neither democratic nor shared)—that they believe ordinary process and constitutional protections are insufficient to to produce punishments severe enough to intimidate the recalcitrant opposition. So they are laying on the punishments arbitrarily. 

It is time, then, to walk like a founder and talk about a new charter. A reform that should be included in any such new charter should be either the elimination of the imperial capital city of Washington, D.C., or the disbursement of its functions so as to mitigate its influence on neighboring states. That and more explicitly defined rights of the accused.

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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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