The USA was and is an odd experiment of a country. From 1776 to now, we have tried an unusual system of government. Instead of a monarchy or a strong military figure, we opted for ‘self-governance’. Citizen representatives, with the ultimate organization defined by a singular, unique document: the US Constitution. But there are some HUGE assumptions that make this oddity of a country function at all, much less well. Let’s dig.
First on the list of assumptions: the structure of rights and laws. Per our Founders, ‘Rights’ are not assigned by men, rather they are recognized by men, but granted by our creator (with wiggle room installed for all religious, agnostic, and atheistic folks regarding the ‘creator’). These Rights are not to be trifled with—they are the main arguing points the Founders just fought the Revolutionary War to get away from. ‘Inalienable’ is the key word: ‘Rights’ just ‘are’, and are not subject to Federal, State, or Local laws. After Rights comes Federal ‘laws’. These are the laws that apply nationwide, usually pertaining to activities that occur interstate or international—those things that should be universal among the States, to allow for consistency within those States. A central currency, a Federal court system, and treaty/tariff systems are good examples. After Federal law comes State law. Each State handles the legislation within itself, and the methods to enforce those rules. Individual States have wide latitude here: State income tax, yes or no; State property tax, and how determined; State sales tax, and what that entails; etc. MOST of our criminal code is written at the State level. Finally, we have local codes and ordinances, usually written and enforced at the city or county level. Building codes, zoning, HOAs, traffic safety (speed limits, etc.), all fall into this category.
Second on the list of assumptions: the laws apply to EVERYONE. There is no ‘royalty’ or ‘leader’ class to exempt themselves from the rest of us. Our statue of ‘Justice’ is intentionally blindfolded—meaning that universal applicability is the goal, regardless of what the accused looks like, or any other attribute. A nation of laws, administered fairly. That was the idea.
Third on the list of assumptions: citizen representatives. Other than Supreme Court justices, our elected officials have limited terms: Presidents, 4 years; Senators 6 years; and Representatives 2 years. The President is further limited to two terms. Congressmen have to be re-elected to serve longer than their original terms. The Founders’ view was quite clear: citizens should be elected to serve their communities, then return to those communities. The idea of career politicians was greatly frowned upon. Not only could that turn into a form of ‘nobility’ (a ‘ruling class’), it also tends to isolate those politicians from the impacts of the laws they pass.
Last on the list of assumptions: integrity of representation. The People allow for the representation they get, putting their hopes, however fleeting, in the honesty and self-policing nature of our governmental systems. The three branches of our government (Executive, Legislative, and Judicial) were intended to be co-equal watchdogs on the others. The sole purpose of not allowing the same entity to enact, enforce, and edjudicate laws was to prevent that entity from acquiring way too much power. In addition, any agencies created by the Executive Branch would be subject to oversight by the Legislative Branch, and subject to the Constitutional muster of the Judicial Branch.
First Assumption: Rights and Laws
I think the grade here is a poor showing from both those governing and those governed. As lawyers do, the governing folks have been trying to chip away at ‘inalienable rights’ almost since the ink dried. Lawyers do have a tendency to think words mean whatever they can convince anyone else they mean, so it is a bit understandable (depends what the meaning of ‘is’ is?). States have been trying to write laws that limit many items in the Bill of Rights, and until they get challenged, their restrictions stay in place. And the governed have been discovering ‘rights’ in the Constitution that simply do not exist. From abortion to ‘living wages’ to health care to any number of topics, people seem to think anything they REALLY want is somehow bequeathed to them as a right. Note that the rights enshrined in the Bill of Rights (Amendments 1 thru 10) are limits on what government can do, without creating a cost for another person to pay. Your right to free speech doesn’t require that I buy you a book; my right to keep and bear arms doesn’t require that you buy me a pistol. So, I give failing grades to both lawmakers and citizens on this assumption.
A COVID-19 update: the entire legislative process is broken. Due to an Emergency Declaration, many State Governors, city Mayors, and local judges have decided that they can create and enforce…well, any damned law they want, with no silly legislature needed. They can fine or jail someone for opening their legal business, or playing in a park, or ‘congregating’ at a church. Some lawyer smarter than I am (most if not all), please point to me the legislation that allows such a blatant abuse of the First Amendment—several clauses. This is a abject failure of our government as a whole, IMHO. And if it continues, unchallenged and uncorrected (and unpunished), the governmental structure delineated in the US Constitution is now obsolete—and so is the USA.
Second Assumption: the laws apply to EVERYONE
This is simply no longer true. Not even a little bit. We now have two cases that PROVE that there are multiple levels of law and judicial systems treatment: General Mike Flynn and former Secretary of State Hillary Clinton.
As the information dribbles out, there are no longer any doubts. General Flynn was legally and judicially abused. Period. The FBI KNEW what was recorded on his phone calls. They KNEW he committed no crime. They intentionally entrapped him in a ‘lie’. Then they threatened to prosecute Flynn’s son, if Flynn didn’t plead guilty. You read that correctly. This is not the US legal system. This is not how any of this is supposed to work. Flynn exhausted his personal resources during this charade of ‘justice’. An innocent man has been in jail, or attempting to withdraw his ‘plea’, while the FBI had exculpatory evidence. This is the type of ‘legal’ system exhibited in banana republics. The FBI agents that pulled this off should not ‘lose their jobs’ or ‘get reprimanded’. They should go to jail—with a long enough sentence to dissuade any future agents from even thinking of doing this level of malfeasance to ANYONE.
Former SOS Clinton deleted over 30,000 emails while they were under subpoena, even using ‘bleach bit’, a software program that goes beyond the normal ‘delete’ function, to attempt to permanently erase memory. That is not even in question. That she had them on a private email server, outside of that of the State Department, is not in question. She had her staff destroy, with hammers, cell phones that belonged to the State Department. That also is not in question. What is in question: why were neither of these FELONIES prosecuted? Why was Clinton not indicted for these crimes? Instead, she ran for President!
If these two examples of inequality of the legal and justice systems do not negate the ‘equal under the law’ assumption, consider a third: what exactly is the penalty for lying to Congress in a Congressional hearing? The current list of provable lies told is astounding, yet no one is punished. No fines, no perjury indictments, nothing. If the law and justice cannot be relied upon to be administered in anything resembling fairness, then we really do have a class of citizens that are above the law. Another failing grade.
Third assumption: Citizen Representatives
Maybe this is just the inertia of power. Maybe it is the logical conclusion of the system as designed. Maybe the complexity of the system requires it to be so. But, regardless of the reason, the fact of the matter is: politics at the Federal level is a life-long career, in so many cases as to be the rule, not the exception. It is no longer even rare that a Congressman serve for 20, 30, even 50 years. And the longer they serve, the less they have in common with their constituents. Not only do they retain their jobs (pending re-election) regardless of performance, they now receive pay and benefits found very few places in the private sector. For a part-time gig (they spend less than half the calendar year in session), they ‘earn’ three times the median US HOUSEHOLD income (the median is $62K, Congressional pay is $175K and up). They get retirement and health insurance plans, paid for by taxpayers. Oddly enough, they have managed to exempt themselves from the laws they pass. And if they get caught breaking a law? Almost NEVER do they go to jail—a ‘censure’ or an apology is sufficient, if even that. Up until very recently, they even voted to keep a pool of taxpayer cash specifically to pay off sexual harassment claims against themselves! What a great gig! Breaking insider trading laws that would land the non-Congressman in prison are not even considered illegal—they just have to disclose the source of their income! That is how a Congressman can serve 10 years, at gross pay of $175K/Year, and retire a newfound multi-millionaire. The First Amendment clause ‘to petition their government for a redress of grievances’ has been interpreted as lobbyists can buy Congressmen…anything. If an ‘F’ is a failing grade, this one goes down as a ‘Z’.
Last on the list of assumptions: integrity of representation.
In my opinion, this develops into two separate topics: accountability and checks-and-balances. Integrity is what you do when you know no one is looking. And at the drafting of the Constitution, we had STATESMEN. Either that, or their legends exceeded their realities. In any case, there was an assumed accountability of elected officials. Honor, honesty, and adherence to law was assumed and understood. Maybe it was all smoke and mirrors, and had no basis in reality. Either way, there are no such assumptions any longer. There is a distinct reason why elected officials are trusted less than used car salesmen (sorry, salesmen). Whatever idealism a candidate may have had prior to getting elected, is quite gone by the end of their first term. Rare is the politician that retains the individualism they started with, for any length of time. And expecting Congress to self-police? Yeah. In fact, I think the biggest hole unaddressed in the Constitution is policing Congress. Other than losing re-election, there simply is no method in place to punish non-Constitutional behavior or legislation. That oath of office is now a formality, not something they actually practice.
As to the checks-and-balances…really? Congress spends more time investigating their opponents than legislating. If there is evidence of a true crime commission, that would make sense. But now? Please. And the Executive Branch now creates law by proxy, either by the Administrative state, or by Executive Order. For the first, think IRS or BATF—they impose ‘rules’ that have the effect of law, yet Congress doesn’t have to vote on anything. Keep in mind, this is the EXECUTIVE Branch, not the Legislative. For the second, EO’s used to be clarifications on how to enforce existing laws, not creating new from thin air. And the Judicial Branch has been legislating from the bench since Marbury v Madison. So, the checks-and-balances are now reduced to myth.
