The death of the American Constitution

During the past couple of weeks, Americans have seen unprecedented authoritarian behavior on the part of many governors and local government leaders, and the chilling possibility that the Obama White House intentionally weaponized the National Security Agency, FBI, CIA, IRS and other federal agencies to attack domestic political opponents. At the same time, the government and the tech community have made huge strides in expanding the surveillance state, often termed fascism. The concepts of democracy, personal privacy and property rights are rapidly becoming quaint concepts from a bygone era. 

Many Americans and legal scholars have been screaming that all of this is unconstitutional and plainly illegal. Regrettably, what they all have missed is that, for the past 50 years, America has had a covert “Constitutional Convention” under way, which has dismissed much of the Bill of Rights and radically restructured American rules of governance and the criminal justice system. We have become a Nation of Men (and Women), rather than the Constitution’s Nation of Laws. When President Obama repeatedly referenced the “living Constitution,” he really meant the dead U.S. Constitution.

In his book, “The Age of Entitlement,” Christopher Caldwell makes clear that the period since 1964, what I’ve called the “Constitutional Convention,” began with the civil rights laws and expanded welfare programs of the 1960s. Those programs were designed to right historical American wrongs to African Americans and create huge social justice programs that have cost trillions of dollars to bring tens of millions of Americans out of poverty and into the mainstream of American life. But they also unleashed a constitutional virus that wreaked havoc across America for 50 years. 

By creating loosely defined views of “fairness,” “equality” and “human rights,” they opened a Pandora’s box. The emergence of identity politics has fragmented America, creating new “rights,” grievances and demands for endless “communities” in the country. It has built stronger alliances among “identity” segments, rather than unifying the country as a whole, made identity rights paramount and made the rights of American citizens, as a whole, secondary. 

In essence, a “New Constitution,” with a vast set of new “rights,” has resulted. The problem is that new “rights” for everyone leads to no sustained rights for anyone. It is worth noting that many authoritarian countries have frameworks similar to the American Bill of Rights — they simply don’t enforce them. “Legal activism” puts America on that track.

The traditional backstop for enforcing the Constitution is the court system — and especially the Supreme Court. The fight over Justice Brett Kavanaugh was considered to be existential, but it had nothing to do with sexual abuse — it was all about the New Constitution. Control of the court system with activist judges cements the New Constitution with infinite rights, and no rights. It opens up a free-for-all. Of course, the designers of the New Constitution have a clear fallback strategy: denial of service. Internet thugs often attack critical infrastructure systems by swamping them with messages that overwhelm and crash them. Today, the flood of “rights cases,” combined with a tidal wave of unconstitutional behavior by government officials and some in the tech community, overwhelms the judicial system. This allows “justice” to become more arbitrary (and “illegal”) and prevents the federal courts and Supreme Court from sorting out the chaos. 

The result is authoritarian and dictatorial behavior by the government and legal systems. The associated result is that all Americans lose. It edges toward anarchy. Many Americans are slowly awakening to something new and alarming. The military, who’ve fought for freedom, must despair.

African Americans are among the prominent losers under the New Constitution. For example, conferring a wide swath of “rights” and benefits on illegal immigrants, who are, in fact, illegally here, takes away the hard-earned jobs and rights of all Americans, but especially African Americans. Hispanic American citizens and women are other prominent victims. All of this increases income inequality since it destroys the gains made by these groups before the coronavirus pandemic, with real hope and change coming through the lowest unemployment rates for them in history. 

Unions also are prominent victims. For example, the arrival of immigrant health care workers — many replacing doctors and nurses furloughed under states’ ban on elective procedures during the pandemic — will transform health care. The authoritarian shutdown and slow reopening of American business will drive many companies to web-based business models and increased artificial intelligence, benefitting tech while hurting American workers. 

As illegal and authoritarian COVID-19 policies bankrupt America, almost everyone will be a victim.

America is becoming a country of the elite, by the elite and — judging from the wealth accumulated during and after public office — for the elite.

Politically, the country has broken into two strong political, almost religious, factions. One seeks to maintain the structures of governance and laws in the Constitution. The other displays arrogant confidence in their personal visions of fairness and the future of the country. It has become an unresolvable conflict.

President Trump is a highly flawed and imperfect vessel, but he still appears to play by the old rules. For those who believe in a clear and stable structure of American rights, enshrined in the Constitution and the American legal system, Trump is, by far, the best bet. For those who prefer to roll the dice for some vision of a “better future,” Not Trump is the answer. The New Constitution comes with a user agreement — best to read it carefully. 

Grady Means is a writer (GradyMeans.com) and former corporate strategy consultant. In the former U.S. Department of Health, Education and Welfare, he helped create and expand American welfare programs. He also served in the White House as a policy assistant to Vice President Nelson Rockefeller. Follow him on Twitter @gradymeans1.