February 2025 – James Gillen

The Constitution 2.0 (Part One)

So. This is the start of my project to repurpose the Constitution of the United States. As I said, I am not a lawyer nor a political science expert, and this is very much a first draft. It is intended for the purpose of public debate, because given how the system is broken, we are going to need to debate what replaces it sooner rather than later, and maybe sooner than we would like. Article I is of sufficient length that I feel the need to present it first, and then move on.

Preamble

We the People of the United States recognize the wisdom of our Founders, that all people have the natural rights to Life, Liberty, and the Pursuit of Happiness, that to secure these rights Governments are instituted among the people, deriving their just powers from the consent of the governed, that whenever any form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers so as to best effect their Safety and Happiness. To this end we do ordain and establish this Constitution for the United States of America.

Article I

1. The sovereignty of the government is derived from the body of citizens of the United States.

2. The first principle of a free republic is that the people may act freely except where law specifically prevents it, and the government may not act except where specifically empowered by law.

3. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage other rights retained by the people.

4. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.

5. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. Legal constructions such as corporations are not persons for this purpose.

6. The rights of the citizen shall not be abridged by the United States nor any State on account of circumstances of birth, including race, gender or gender identity, nor in regard to political belief, religious belief, or lack thereof.

7. No law shall be made creating an establishment of religion, nor prohibiting the free exercise thereof; or abridging the freedom of speech, or of the media, or the right of the people to peaceably assemble, and petition the government for a redress of grievances.

8. The natural right of self-defense, in particular the right of the people to keep and bear arms, shall not be infringed.

9. No Soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in a time of war except in a manner to be prescribed by law.

10. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall be issued without probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

11. No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in active service in time of War or public danger, nor shall any person for the same offense to be twice put in jeopardy of life or limb; nor be compelled in any criminal case to be a witness against themselves, nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.

12. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously determined by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against them, and to have counsel assist in their defense.

13. In Suits at common law, where the value in controversy shall be twenty dollars, the right of a trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than under the rules of common law.

14. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

15. Neither slavery nor involuntary servitude shall exist within the United States, nor any place subject to their jurisdiction.

16. All citizens of the United States and each state thereof, as defined above, are automatically registered to vote in all state and federal elections at 18 years of age. The right to vote may not be abridged except if convicted of a felony offense.

17. The laws of each State, and their State Constitutions, remain in effect upon ratifying this Constitution, except insofar as they are contradicted by it.

Notes

The Preamble obviously invokes both The Declaration of Independence and the Preamble of the current Constitution. It stems from the premise that governments are established to protect our natural rights, and “whenever any form of Government becomes destructive of these ends” the people have the right to alter or abolish it. Thus the necessity of the document. If the current system had not become destructive to the ends of the original Constitution, this measure would not be necessary.

The original Constitution started with focus on the three branches of government, Article I (Congress, the legislative branch) Article II (the President and executive branch) and Article III (the judiciary and Supreme Court). As part of the debates leading up to the signing of the document, it was noted by critics that certain elements of common law, or desired elements from other State documents, were not included, these being the protections that eventually became the Bill of Rights. Subsequent Amendments (such as the right of minorities, women, and 18-year olds to vote) were added over time as demand arose.

I have put most of that up front, ahead of the role of the Congress, which is now Article II. This is to emphasize the primacy of the citizen and the protection of rights as the purpose of the government. Most of Article I is simply rearranging the constitutional amendments referring to human rights and citizen rights. Including the right of individuals to bear arms. That might come up someday.

The root premise of how free a government should get versus what the basis of regulation should be “is that the people may act freely except where law specifically prevents it, and the government may not act except where specifically empowered by law.” This is similar to what are now the Ninth and Tenth Amendments (the text of which are also included here) but spelled out for emphasis. This idea is taken directly from Ayn Rand in the compilation The Virtue of Selfishness, specifically, “Under a proper social system, a private individual is legally free to take any action he pleases (so long as he does not violate the rights of others), while a government official is bound by law in his every official act. A private individual may do anything except that which is legally forbidden; a government official may do nothing except that which is legally permitted. “

This is also paralleled in the language of France’s Declaration of the Rights of Man and of the Citizen, Articles IV and V. I believe it is important enough that it needs to be emphasized even over what is currently the First Amendment.

In this country, we call voting a right, but in practice states keep putting up a bunch of roadblocks to make it more difficult. Default voter registration addresses this, so that it is not an issue that states can interfere with, and the right to vote only being denied for cause. In some ways this goes against my inclination. I am inclined to make voting eligibility contingent on a civics and basic knowledge test, including the question, “Can you explain the difference between ‘your’ and ‘you’re’?” But as with literacy tests, that sort of thing was declared unconstitutional because it was gaming the rights of citizens so that state governments could pick their voters. Likewise making registration and eligibility a federal matter makes it more difficult for states to select their voters, which is a big part of why the last few elections have turned out like they have. This is especially important in the rules for Congress (Article II) to follow.

To Have No Technique Is Your Technique

So I said that before giving my ideas for a new US Constitution I would need to explain my perspective in order to show where I’m coming from and what my proposal is based on.

To sum up from one of my other pieces, “I am NOT a “progressive.” I am not a Socialist. I am a conservative in the sense that I want to preserve the American system of government. I am a libertarian in the sense that I believe in The Law of Unintended Consequences, and in the sense of Thomas Jefferson: “That government is best which governs least” and what someone else believes “neither picks my pocket nor breaks my leg.” In other words I am what Jefferson and F.A. Hayek would call a liberal.”

I had previously considered myself a (L)ibertarian, because in the duopoly the Democrats were in many ways flawed and the Republicans were outright insane, no later than when they first started to follow Donald Trump. So I voted Libertarian. Until they went insane. And while the (L)ibertarian movement always has been an exercise in herding cats, things really came to a head with the Libertarian Party with COVID, when their demand to maintain freedom from government rules went up against the need to contain the worst pandemic in this country since the 1919 influenza outbreak. (There were a lot of people masking up then, over a decade before FDR turned this country socialist.) The “freethinker” response to COVID only confirmed that the movement was not based on a healthy skepticism to big government, but rather oppositional defiant disorder, which made it ripe for takeover by the kinds of people whose politics may not have been identical to Trump’s but were starting to run parallel. The common element was distrust and outright hatred of a political establishment composed largely of mainstream Democrats and professional bureaucrats, whom Trump calls “the deep state” and prior to him were simply “the state” or more properly the administrative state. That coalition of people had much to do with why Trump won last year and Kamala Harris lost.

The other reason I quit being straight libertarian is seeing what happens to government when the people allegedly against Big Government get a hold of it. We may not like everything government does, but until we can figure some better arrangement, it will always exist. As long as there are group resources, or resources that cannot be held individually, there will always be some designated agent to administer those resources, to make rules on group activities and to enforce those rules if they are broken. You can call it a commune, a government, or an HOA, but it will exist.

You can’t kill government, you can’t drown it in a tub. We can have a legitimate political debate as to how much is needed, but it is going to exist on some level. As they say, “power abhors a vacuum.” So one of the things we have to do is figure out what we actually need government for, as in, something that is necessary and can’t really be done by anyone else. One could argue whether that applies to, say, education. There are lots of homeschooled people, and some have argued that they do better academically than public school kids. But having government provide schooling at all levels, and creating standards, broadens the opportunities that education provides. Likewise, you could have people sponsor a highway, but the private sector isn’t able to develop the comprehensive infrastructure and highway system that the federal government developed after World War II. These are legitimate debates. But what we’re seeing with the Musk-Trump administration is targeting programs that have been useful, not because they are wasteful but simply on the basis of a reflexive anti-establishment ideology, like a mirror-universe version of the Red Guards. And we will soon see the consequences of seeing what parts of government are necessary or not, especially when the decision is made for emotional reasons.

I still consider myself libertarian in terms of my internal definition, but that doesn’t seem to be one that’s shared by the “official” movement anymore. Which is one of the points that I want to make here: Politics, at least in the US, is not based on ideas and consistent ideology, it’s based on labels. And if you can take over the labels that people agree with, like “freedom” and “America”, you can get people on board with some pretty statist and un-American ideas. Likewise from a leftist perspective, you might think that socialism is a humanist movement, and maybe in Europe it is, but in America, it has always been associated with the worst sort of Maoist and Leninist tyranny. So trying to promote racial and income equity is considered socialism, but autarky, tariffs, having the president directly manage the Kennedy Center and staff it with his cronies and having his patron boost his own government contracts while regulating his own competitors are NOT socialism.

So I do not think my position should be based on ideology as much as philosophy, because that is more consistent and more easy to test. My philosophy is what has been called classical liberalism, heavily based on Ayn Rand. Now, while these days I think Rand as a person had more issues than TIME Magazine, I don’t see anybody else in philosophy who gets to the issues with both Left and Right, particularly why the Trump Right engages in magical thinking and the Left, lacking conviction in reality and objective standards, has been powerless to address this. But I am basing my positions on these basics:

Reality exists, independent of subjective perception or opinion.

At the same time we do not have perfect knowledge of reality. Determining the truth of a thing (at least on empirical things) requires a process of examination akin to the scientific method.

For us to have the best chance of gaining knowledge and developing accurate views of the world, we need the maximum freedom to act, particularly in the action of gaining knowledge.

Thus the best systems are those which allow for human freedom in a person’s own sphere while by the same token protecting the same right for others against other individuals.

In regard to the above, I think that for most of this country’s history, our Constitution, with all of its flaws, was still the best government we could have devised. I think that it did not account for the natural tendency of people to engage in partisan politics, which is fine, except in the sense that it directly corrupts the system of checks and balances that the Founders created. This is why, for instance, the Electoral College creates results against the popular vote, because all but two states set up their electors as “winner take all”, meaning that only two candidates have a chance of getting any electors, because we define “democracy” as who wins the popularity contest between the two parties that have set themselves up to have all the advantages. And in the one clear case where we could have used a veto of the popular vote, the 2024 election, the Electors went ahead and certified Donald Trump because to do otherwise would have gone against democracy. Even though putting a check on the flaws of democracy was precisely why the Electoral College exists.

Likewise, the Founders intended impeachment to be a check on the power of an unscrupulous president (or other federal official), but in practice it can’t be. The premise was that the three branches of government are the legislature, the executive, and the judiciary (in that order) and each acts as a check on the other, because each institution serves to protect its own priorities. That’s the system on paper. The system in practice is that the three branches are the Democrats, the Republicans, and the judiciary, and the third is chosen by the dominant of the other two. And with a majority vote required to move impeachment from the House to the Senate but a two-thirds vote required for the Senate to convict, you are never going to get that many Senators to go against a President of their own party, because he is not a competitor in the system, he is their boss. If a President doesn’t have the loyalty of one-third of the Senate it raises the question of how he got elected in the first place.

I am operating on the premise that we should keep most of the government that exists, because it was working pretty well with the capacity for evolution and reform, prior to being gamed by unscrupulous and authoritarian people. This means that such changes that I propose are geared mainly towards addressing those exploits.

You will also note that by the standards of left-wingers who act like the whole Constitutional project was a mistake, all this makes me fairly right-wing. But that is a standard of right-wing prior to the current one, which is “I agree with everything Donald Trump says, even if he changed his mind three times today.” By that standard, I might as well be Che Guevara.

This perspective has been referred to as radical centrism or even ultra-radical centrism. Which is of course a contradiction in terms. But the difference is a matter of means as opposed to ends. In this case it is an acknowledgement that the current system isn’t working, that it needs to be changed, but the changes being implemented now by the anti “deep state” party are taking us further from where we need to go.

It’s been implied that the problem with “no labels” movements outside the duopoly (such as Andrew Yang’s Forward) is that they are not really distinguished from established political systems and in their pragmatism don’t have an identity. “Mark Satin worries that radical centrism, while “thoroughly sensible”, lacks an “animating passion” – and claims there has never been a successful political movement without one.”

In my mind, this objection gets back to the problem I mentioned earlier. A movement based on ideology is in danger of being hijacked by people with ulterior motives. Moreover, its definitions refer only to itself and do not adapt. When the ideology clashes with reality, ideology can only win with force. A philosophy based on finding reality and changing opinions to fit the facts is better for the world than an attempt to make facts fit someone’s opinion.

Bruce Lee was once quoted as saying: “The highest technique is to have no technique. My technique is a result of your technique; my movement is a result of your movement.” You need to be able to acknowledge the world around you and act accordingly before you try to change it.

In fact it is that very non-identity that is at the core of original liberalism. It is the premise that since we are so different not every way of life will suffice for all and therefore we cannot make our politics such an ideology that it becomes a religion. As Ludwig von Mises said in Liberalism (a book that the Von Mises Caucus has apparently never read):

“We see that as soon as we surrender the principle that the state should not interfere in any questions touching on the individual’s mode of life, we end by regulating and restricting the latter down to the smallest detail. … Liberalism limits its concern exclusively and entirely to earthly life and earthly endeavor. The kingdom of religion, on the other hand, is not of this world. Thus, liberalism and religion could both exist side by side without their spheres’ touching. … Liberalism, however, must be intolerant of every kind of intolerance. If one considers the peaceful cooperation of all men as the goal of social evolution, one cannot permit the peace to be disturbed by priests and fanatics.”

I mean if “radical centrism” seems like a contradiction, well nowadays we are supposed to normalize Nazi sympathies and a unitary executive, but limits on government power are apparently un-American. At this point there IS nothing more radical than centrism.

This is the perspective I’m coming from with my next idea.

To Ourselves, And Our Posterity

I don’t have much to live for anymore.

My Dad died. My Mom died. My brothers died. My two best friends died. My dogs died.

And as I go on, everything I loved and everything I care about dies out before me.

As I get older it is increasingly clear that I am not immortal and I am getting less immortal all the time.

I now basically have the old-fashioned idea that I should just try to leave this world a better place than I found it, or at least not make it worse.

And I had thought that the United States of America would outlive me, but now I’m not so sure.

Because this week, Elon Musk, the actual chief executive of the United States, commandeered the records of the entire US Treasury and sent his own personal staff, who were not government employees, to come in with personal unsecured devices in order to purge the bureaucracy, taking out the separate USAID charity organization (supposedly now being shifted to the State Department) while also seeking to defund or outright eliminate other agencies like the Department of Education. [NOTE: I just found out that the Trump ‘administration’ agreed to restrict DOGE staff access to Treasury records “after a group of union members and retirees sued the Treasury Department alleging that providing DOGE access to the federal government’s massive payment and collections system — and the personal data housed in it — violated federal privacy laws.”]

Now, I still consider myself a right-winger, so in principle I would be in favor of killing the Department of Education. After all, most of the people who voted for Trump after he gave us all Trump Virus ™ were products of American public schools, so clearly it’s not doing any good.

But even if you could make cases against a lot of these agencies, the fact is it is not Elon Musk’s place to cut the funding. The Congress in Article I of the Constitution has sole power of the purse and the executive branch is there to make sure its funds are administered as Congress directs. Even if Vice President Trump designates Musk and his boy band “special government employees” after the fact they have no certification in that system. And nobody, including Republicans, elected Elon Musk to effectively have more power than the President does. This is nothing less than a coup.

We could fight them for real, but as Eric Stratton says, that would take years, and cost millions of lives. The saving grace of our situation is that these people are as incompetent as they are evil. In past examples of encroaching tyranny, we had previously used the example of a frog in a pot of water, which is gradually turned up to the boiling point slowly enough that the frog doesn’t realize what is happening and cooks to death. Well, the Trump-Musk Party decided to just turn the stove to full boil then take the metal pot off the stove and shove it in the microwave.

The escalation is getting to the point that it may raise a critical mass of people against it, including some Trump voters, like all those senior citizens who now know that their Social Security records are in the hands of the world’s most powerful drug addict.

But even if we could claw back some of this power grab, we will never get back to the status quo ante, because it no longer exists. The precedent has been set. The precedent being, that once a guy is elected president, he can do whatever the hell he wants. Even if he’s not currently president. He can stage an insurrection against his successor’s certification, send a mob into the Capitol to try and kill the Speaker of the House and his own Vice President, and not get prosecuted. He can run for president again despite being an insurrectionist, because the Supreme Court wants to pretend the 14^th Amendment doesn’t exist. He can steal classified documents from the White House and not get prosecuted because he’s running for president again. And when he gets re-elected he can have Elon Musk and his chemically addled commandos seize control of the infrastructure with no certification whatsoever. Why? Because we let the president do anything he wants. And this is a standard that was set long before Trump. And if you’re a Democrat, not taking advantage of that is handicapping yourself. People complained that Biden pardoned his son, like that was going to be a lowering of our legal standards. But those standards no longer exist. Biden was simply acknowledging that fact.

We need to acknowledge it too.

The system is broken. It cannot be glued back together like a Japanese vase. We need to start over.

We need a Constitution 2.0.

Laws in and of themselves will not restrain evil men, for the reasons we’ve seen, but we can at least change the incentives to make abuse less likely, and resetting the system will make it more clear that the precedent of abuse will no longer stand.

Now, I am not a lawyer, nor do I have a Political Science degree, but neither does Elon Musk, and that’s not stopping him. I think that we need to have this discussion sooner rather than later, and in my next posts I want to go over my ideas for what ought to be changed. You could even call it a prolegomena, if you want to get all Kantian and pretentious.

But prior to going over my ideas, I would need to explain the basis of where they are coming from, so in my next post I want to go over what my philosophy and political positions are now and how I got to that point.

Wait for What?

Response sent to Andrew Sullivan on “Keep Calm, Carry On… And Wait“

Dear Andrew,

Do I think there is NOTHING good about Trump 2.0, otherwise known as Everything I Don’t Like is DEI? Well actually I am pleasantly surprised that his foreign policy team consists of realists on Ukraine like Marco Rubio and Keith Kellogg, who put the burden of resolution on Vladimir Putin, as opposed to Anthony Blinken, who was trying to preserve a status quo that no longer exists, or a John Mearsheimer, who would tell us all that Putin is just misunderstood.

But otherwise, we go back to your question, “regime change or another shit-show?” And after only two weeks, the answer is clearly: BOTH. We have these people creating deliberate chaos with orders and policy changes that are illegal, cannot be carried out, or cannot be carried out because they’re illegal. You would think that conservatives would know what “Chesterton’s Fence” is.

What we’re seeing are two inter-related points. One, Trump is clearly a senile tapioca brain who is front and center to amuse the proles and distract the media while the actual think tank like Elon Musk, Stephen Miller and Russell Vought does the real work. You can see this in his marathon Oval Office signing sessions where the staffer has to tell him what the order he’s signing is for, and Trump looks at it and always says, “Ooh, that’s a big one.”

From a right-libertarian standpoint, if all this just meant cutting taxes, cutting wasteful spending, cutting counterproductive regulations, and killing wokeness, that would be one thing. But that gets to point two – clearly people like Vought, Musk and Miller have no clue how government works either, despite being more intelligent and qualified than Trump. But the point isn’t to do things on procedure. The point is to break the system. And they’re doing it because they think they can.

Because everyone in the institution, from Mitch McConnell to Merrick Garland to John Roberts went out of their way to tell Trump that he could do anything he wanted and no one would stop him, and last election the public agreed with that, and thanks to the downballot vote, Democrats have less ability to oppose him than ever. But then, if they knew how to counter Trump, they wouldn’t have lost the election.

But now we’re seeing Musk muscling in to get his people infested in the civil service and his information systems running the record keeping, and various things are being taken out of government websites, like, the text of the Constitution. Any dissent is being killed, despite the fact that the last nine years have demonstrated that you can dissent against Donald Trump all you want, and nothing can stop him.

The only thing that did stop him was public contempt at his disastrous handling of COVID, and that was only because it was an election year. And I predict that Trump WILL cause a catastrophe on par with COVID, if not worse. Because the factors that led to it have been reinforced and the safeguards have been removed.

So when you say, “Keep Calm, Carry On… And Wait”, I ask- wait for what? Things ARE going to get worse, much quicker than anybody expects. The catastrophe is going to happen before the midterms, and at this rate, before June. And when, NOT if, it happens, we as a country will not be ready. Because again the election will not be a factor, Democrats cannot stop him and Republicans never would stop him. And if Trump dies of his various co-morbidities, his handpicked successor is JD Vance, who is a sincere religious fanatic, as opposed to Trump, who is clearly just a religious fanatic for the money. But in regard to Vance, good of you to point out that every conservative convert to Catholicism suddenly acts like they have more doctrinal authority than the Pope.

But hey, at least we don’t have to worry about the pronoun police anymore. That’s the important thing, right?

Sincerely,

JAMES