America has long ago ceased being a constitutional republic and is now a judicial dictatorship.
When I lived in Massachusetts, I assiduously voted in the federal elections knowing full well that my up and down the ticket Republican vote amounted to nothing and that I was thus wasting my time. Massachusetts was not even close to electing Republicans to any federal office. Now had this been circa 1820, this would have likely been OK by me because at that time, a time in which the American Constitution was still in effect, most if not all the laws, rules, and regulations that affected my life would have been created in Boston, where my vote counted, rather than in Washington, where it didn’t. If I had been appalled by how things were in Massachusetts, I could have voted with my feet and moved to a state the politics of which would have been more to my liking.
Today in America, we are all governed by the federal government in every way that counts. Both of the things that are most important to every American, the deductions we see in our paychecks and how we consume healthcare and education are almost entirely determined in Washington, not in our state legislatures. From the federal income tax that dwarfs your state income tax to the federal Social Security deduction to the rules and regulations that control how you consume and how much you pay for healthcare and education, it is all made in DC.
And now, to add insult to injury, we learn that these rules that govern our lives are not even made in Washington by our elected officials. Quite the contrary, they are made by gray apparatchiks that we call judges, people who spend their entire working lives trying to worm themselves into the federal judiciary in which they are responsible and answerable to no one for the rest of their lives. The state of affairs in which in every way that counts America ceased to be a federal republic and is instead an atrophied monolithic republic well on its way to becoming a Chinese-style poor man’s meritocratic oligarchy cum judicial dictatorship would have been abhorrent to the Founding Fathers who cherished federalism and state rights above all else. I have little doubt that had they known of this outcome, they would not have embarked on their great and perilous adventure.
The American federal republic died because it was conceived by and for people who had much in common: their English and Scottish origins, their language, their religion, and much that divided them, but, crucially, these divisions had geographic boundaries that coincided with the boundaries between the thirteen colonies. Every structure has a foundation, every political system makes assumptions about the people it applies to and in this sense the system of governance created by the Founding Fathers was and is no different. They created their system for a people who have long since perished never to return. People for whom their state was everything and who rarely if ever ventured outside of its borders, people who were universally deeply God-fearing and patriotic, people who were entirely self-referential and cared nothing or little for what the world might think of them.
For better or for worse these people started disappearing as early as the mid-19th century westward expansion and were finally done for by unchecked immigration and modern technology. Today, Americans who live in the same state where their grandparents had lived are a small minority. Today, the reach of the federal government is such that changing states has virtually no effect, beyond a few not unimportant things like access to firearms, on how one lives their lives in America.
Perhaps the greatest error committed by the Founding Fathers was the establishment of the federal judiciary as an ostensibly equal branch of government and yet giving it unlimited powers to reject laws that have been duly instituted by the other two branches or make laws by simply interpreting the Constitution as they saw fit. In giving the judiciary these unchecked powers, the Fathers relied on their understanding of time and the pace of change in society. If one thinks of them as control engineers and their grand opus, the Constitution as a kind of social controller, one can clearly see that they built into it four different time constants. The two-year time lag for elections to the House of Representatives was the shortest one. The House and its members were supposed to change the quickest, be the most responsive to the changing vagaries of the mob. The four-year presidential term allowed for a bit more integrative decision making process over time and so did the six-year Senate term, especially when the Senators were elected by their state legislatures rather than by direct vote. Finally, the life appointments of the judiciary were meant to be the longest time-lag, the slowest reacting of all. The judiciary, in the Fathers’ design represented generational change, adult supervision, a backstop against rash decision making by the legislative and the executive branches.
In all their wisdom, the Founding Fathers were not prophets nor were they prescient. They could not envision average lifetimes of over eight decades, nor could they foresee a world that changes so completely in a decade as ours does. They lived in a world in which four lifetimes saw less change than we see in a quarter of ours, a world in which a Supreme Court Justice would be appointed to the bench and die on it without ever seeing much change in how people lived their lives or saw their world. Today, the pace of change is so quick that the judiciary feels obliged to keep abreast of it and, egregiously, even lead it.
With the election of president Trump, some Americans woke up to the fact that the country they thought they lived in was long since gone, taken from them while they were minding their own business. Naively, perhaps, they thought that their vote could restore the federal constitutional republic they thought they were born into. But, alas, they were to soon find out that it was too late. All their vote has accomplished was forcing the real power players to reveal themselves in their quest to retain and further consolidate their powers. The 2016 election and subsequent attempt by the American intelligence community and the outgoing administration to remove Trump from power, and the ongoing judicial obstructionism to Trump’s policy initiatives that won him the election prove beyond any doubt that America is governed by an oligarchy comprising of the defense complex, the big tech, the judiciary, and the media, while the legislative and executive branches provide the facade of constitutional governance to an uninformed and mostly uncaring public.
While it is abundantly clear that the ruling American oligarchy has utterly failed to advance America’s interests at home and abroad and that it cares nothing for the welfare and wellbeing of Americans, it is not clear that a return to constitutional federalism is possible let alone desirable in the country we still call the United States of America. History is not circular and it never repeats itself; it adjust itself by finding the only possible compromise between unchanging human nature and the changing environment in which we humans find ourselves at any given time. The people for whom the old system was made are gone. As every control engineer knows, a controller can be made robust to a certain departure from the nominal dynamics of the controlled plant, but any excessive departure must cause degradation in performance and utterly instability and failure. The America we know today is nothing like the America for which the Constitution was written and the self-adjustment mechanisms that were written into it are incapable of dealing with such a radical departure from the baseline. From the ashes of the old order a new order will emerge. Of that there can be no doubt. Will it be an order which will once again successfully balance the interests of all Americans? Will it be a system that puts the interests of America and Americans first, or will we continue to subjugate our interests to those of the global elites? Only time will tell.
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