Defining Post-Constitutional America
As regular readers of this blog know, a central theme of mine is Post-Constitutional America, the third great era of our history.
The Way It Was
In the first era, the colonial years, a unitary executive, the King of England, ruled without checks and balances, allowing no freedom of speech, due process, or privacy when it came to protecting his power.
In the second, the principles of the Enlightenment and an armed rebellion were used to push back the king’s abuses. The result was a new country and a new constitution with a Bill of Rights expressly meant to check the government’s power. As imperfect as all that was, it represented a concept of moving toward the better. Those ideas — enshrined in the Bill of Rights — are disarmingly concise. Think of them as the haiku of a genuine people’s government.
The Way It Is
Now, we are wading into the ever-deeper waters of a third era, a time when that government is abandoning the basic ideas that saw our nation through centuries of challenges far more daunting than terrorism.
America has entered its third great era: the post-constitutional one. Here we have only the rights the government allows us to have. Think of it as a variable totalitarian system. Free speech is not outlawed, but can be restricted at will — a punk cop Tasers a legitimate protester, the Federal government slams a prominent journalist away. Privacy exists, but only as the government doles it out, often as a reward for not being a troublemaker, while retaining the “right” to pull it away. The Stasi and 1984‘s Big Brother sought total control over every aspect of peoples’ lives; today’s power is used as needed, though the mechanisms of broad application exist and grow.
Not by Any Recognizable Rules
On or about Sept. 11, 2001, American character changed. What Americans had proudly flaunted as “our highest values” were now judged to be luxuries that in a new time of peril the country could ill afford. Justice, and its cardinal principle of innocent until proven guilty, became a risk, its indulgence a weakness. Asked recently about an innocent man who had been tortured to death in an American “black site” in Afghanistan, former Vice President Dick Cheney did not hesitate. “I’m more concerned,” he said, “with bad guys who got out and released than I am with a few that, in fact, were innocent.” In this new era in which all would be sacrificed to protect the country, torture and even murder of the innocent must be counted simply “collateral damage.”
At its root is a maddening ambiguity born of a system governed not by any recognizable rules of evidence or due process but by suspicion, paranoia and violence.
That sums it up for me about as well as anything else I’ve been allowed by the government to read.