Constitutional
Action Plans
Dissatisfaction with government and complaints about violations of
the
Constitution are rising, but the majority of such demands are for
someone else to so something, leading to more frustration when no
one
seems able or willing to do so. There is growing awareness that the
"justice system" isn't delivering justice, and more and more people
who
encounter that system become victims of it, who then obsess on their
own cases and make themselves unavailable to understand how their
cases
fit into a larger process or seek systemic reforms. It sometimes
seems
like the Establishment is encouraging a controlled opposition that
absorbs dissidents and neutralizes them.
"The best way to control the opposition is to lead it ourselves." ―
Vladimir Ilyich Lenin.
The concept was presented by Orwell in 1984 when Party operative O'Brien
tells dissident Winston Smith that O'Brien was the co-author of the
clandestine book of resistance leader "Emmanuel
Goldstein", suggesting the figure was fabricated by the Party
for
its own purposes.
One of the signs it may be controlled is the dearth of specific
action
plans for correcting the problems. No one seems to be offering
drafts
of legislation that gets any traction, few offer any legal pleadings
that actually get filed except perhaps as amicus briefs that get
ignored. There are plenty of books and articles that examine parts
of
the problem, but offer only vague solutions, and the only specific
proposals that seem to get any attention are really bad ideas that
seem
designed to discredit their causes and proponents.
Imagine victory
When Japan attacked Pearl Harbor in 1942 we didn't just lodge a
diplomatic complaint. We didn't just call for someone to help us. We
declared war, then made plans to win it, involving invasions across
two
oceans that would not end until unconditional surrender and
reconstruction of the ememy countries according to our model of
government. Those plans were not just to charge into enemy fire.
They
involved gathering men and resources, training, invention,
manufacturing armaments, organizing supply chains, and developing a
strategy that advanced our control of enemy territory until there
was
none left, at a minimal loss of personnel and resources. Not all
plans
survived contact with the enemy, but we trained our troops to replan
from moment to moment as the situation developed, until victory was
secured.
Although our present situation for the most part does not involve a
foreign threat in the same way, it does require the same skills of
professional planning and careful execution of those plans. The old
saying is true: "Those who fail to plan, plan to fail."
It is all very well to try to understand where we are, how we got
here,
and how we went wrong, but that is no substitute for imagining where
we
want to go and planning all the steps it will take to get us there.
We
were able to put men on the moon with that kind of planning, and
nothing less is required to return to strict constitutional
compliance.
Steps to reform
There is a systematic way to approach reform, which can be reduced,
with some oversimplification, to the following steps:
- List all the abuses one can find anyone complaining about.
- Find and list all the statutes, regulations, and sustaining
court decisions that have enabled those abuses. See http://constitution.org/ussc/ussc_milestones.html
- Within each of the cases, find the key legal terms the
misinterpretation of which enabled the adverse precedent.
- Find as many legal scholars as possible who have done deep
analyses of the terms found.
- Trace the path of the misinterpretations from case to case.
- Compose the language that would be needed not only to reverse
the misinterpretations, but prevent future clever lawyers from
twisting them into more misinterpretations.
- Plan a path to getting that revision language adopted,
whether though litigation, legislation, or constitutional
amendment.
- Gather as many of those scholars together as possible to
hammer out language that can win acceptance of a larger
population.
- Build support from ever wider circles of influencers and
decisionmakers.
- Head off opposition or prepare to overcome it.
But you will not find a single scholar who has dealt deeply with all
of the terms. Few examine more than six or seven. To unite them
behind a single set of proposals will take getting them to educate
one another on all the terms.
Summarizing what we need to do:
- Rely only on yourself for the difficult details. Write the
proposals, such as legislation or court arguments, yourself, if
you
can't find it done right.
- Purge yourself of dependency. Accept help if it comes but
don't
expect any.
- Use scientific thinking. Try to refute every model and keep
looking for more.
- Keep plans as brief and simple as possible, but no briefer or
simpler.
- Prepare plans that operate together to solve a problem,
providing the necessary structure, procedures, rights, powers,
and
duties, covering all conceivable contingencies, and that require
no
resources that are not available or obtainable.
- Anticipate unanticipated consequences. These are complicated
systems that no one really understands, including you.
- Allow a reasonable margin for error, including errors in the
planning process itself.
- Anticipate all the ways any plans might be twisted by clever
adversaries trying to find ways to undermine them.
- Make sure there is always someone to challenge any plan.
Groupthink kills.
- Don't try to micromanage every detail of execution. Find
trustworthy people to whom details can be delegated. But verify
their
work.
- Don't depend entirely on summary reports from subordinates,
but
sample the raw data from time to time to stay grounded.
- Be prepared to change plans rapidly, but always have some plan
at
any given moment.
- Avoid introducing perverse incentives that may cause team
members
to pursue their own agendas in ways that conflict with the
general
mission.
- Don't expect to clean a barrel of rotten apples by replacing
only
a few of them at a time. Those that remain will just infect the
new
ones. Sometimes there is no substitute for replacing them all
and
sterilizing the barrel.
- Judges and lawyers are indoctrinated into a legal culture that
will resist reforms, whether statutes, amendments, or even court
precedents, although clearly written amendments seem to have the
best
chance. Expect it to take 60 years of re-education of the legal
profession, no matter what else is done. That has to start in
the law
schools, or even the public schools.
- Don't propose amendments before learning the Principles of Constitutional Design.
Study the specific proposals.
Don't criticize them until you thoroughly understand why they were
written the way they were.