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The End of the First American Republic. The Rise of the Second. Part 2 [1]

['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']

Date: 2025-03-18

The breakdown of the rule of law can be analogized to the cascade of genetic mutations that lead to disease. Developing an accurate history of the breakdown of our constitutional order helps to identify the weaknesses in the genome of our governance, i.e., the Constitution and the laws, predict the course of the disease, and design a cure.

Cures are delivered to the whole body, to excise only that which irredeemably compromises the well-being of the individual and to restore vigor and function to the remainder. The enemy is not the political right. It is the dishonesty, bad faith, malevolence, and nihilism to which the right and some disaffected Americans of other political persuasions have fallen prey. A stronger Constitution cannot in itself guarantee that citizens will exercise their duties to educate themselves, stay engaged in the dealings of government, blow the whistle on corruption, or otherwise do their jobs as citizens. Constitutional reform can give good-faith actors more leverage in defending the rule of law by strengthening the teaching of accurate history, defending the rights of minorities and all voters, placing a check on the abuses that corporate giantism enables, giving the scientific consensus primacy in judicial proceedings, and ensuring that journalism reflects all citizens and not just the wealthy or a political faction.

The First American Republic successfully delivered over two hundred years of domestic peace with only four of general domestic war and a serious invasion of about 20 months duration. Not to gloss over the violence against Native Americans or that of slavery or to gloss over the terrible deeds done by American colonialism, but that is still an extraordinary run. It can be attributed to many favorable factors, particularly the rich resources of the new nation and its geographic isolation, which reduced the need for a standing army to defend against invasion. But centrality of human rights as enunciated in the Bill of Rights, and the ability of The People to amend the Constitution enabled suffrage and the exercise of rights to be widened, and therefore for the wellsprings of conflict to be gradually drained. It is the empathy between unlike people that is the only sense in which we are a Christian nation. It is that goodwill between people of many different kinds that is the lasting source of our national strength, prosperity, and happiness.

The original Constitution was flawed. It bought the temporary unity required to enact the Constitution at the cost of failing to recognize the full humanity of slaves and Native Americans, not to mention women. The right loves to claim that the Constitution’s “neutrality,” i.e. silence, did not imply ill-will toward any of these people [1] –after all, the Constitution’s failure to single out Jews, Muslims, or other religions meant that they were, unlike in other countries, full citizens. What that argument fails to recognize is that this silence was the root of decades and centuries of murder, torture, and conflict. If the Founders had simply taken to heart the famous words of the Declaration of Independence [2] that “all men are created equal,…endowed by their Creator with certain unalienable rights [including] Life, Liberty, and the pursuit of Happiness,” we could at least have skipped the Civil War and the genocide of the Native Americans and gotten straight to reflecting on whether women are people, too. Silence is not neutrality. It is complicity.

That all people are human is, as the Declaration almost says, only requires a set of eyes or, lacking those, any of the other senses available to human beings. The refusal to acknowledge the full humanity of certain groups was the first and deadliest mutation in our national genome, the first step in the cascade toward dictatorship. A major, and nearly fatal, consequence was the Civil War.

But its consequences were not limited to the Civil War. The flaws in the attempted genetic repair, the Reconstruction Amendments [3], left enough of a defensive gap for malice to admit Jim Crow, the treatment of women and children as property [4], the 19th century anti-Catholic riots [5] the Chinese Exclusion Act [6], the internment of Japanese Americans during World War II [7], the Guantanamo detainees [8], Shelby County v. Holder [9], the erasure of trans people being attempted by the Trump administration [10], and many more actions that diminished our national strength, prosperity, and contentment. They have in common the attempt by one group of people to deny the full humanity—and therefore the full rights-- of other people. The first principal targets of the current crisis are immigrants, notably legal immigrants—because what can be done to them can be done to all non-citizen immigrants—but the attack on native-born Americans is already here in the attack on birthright citizenship.

Having described the principal source of the constitutional abominations that have culminated in the current attempt to kill our freedom, it still remains to identify the consequent and the unrelated mutations. The immediate effect of denying basic rights to some people is that other people have too much power. One that was evident in the original Constitution had to do with suffrage. As with slavery and the rights of women, Constitutional silence resulted in injustice, with the states restricting voting to landowners and, except for New Jersey [11], men. Here are a few of the downstream consequences of this mutation:

Unequal before the law. The restriction of suffrage to landowners certainly explains why women (and children) were treated as property. It may also explain why our legal system does not recognize the need for equality of representation in the courts: one has a right to counsel, but not necessarily to a qualified counsel or the additional resources one needs for a proper defense. Inequality in the courts based on wealth has serious downstream consequences. The rich develop a sense of impunity, violating the law at will, while using the courts through SLAPP suits and abuses of the criminal justice system to intimidate the less wealthy. Meanwhile, the poor can be unjustly jailed, and even the middle class finds little recourse in the courts, abandoning justifiable civil suits and even avoiding divorce for reasons of cost.

Disparate power by employers. One learns with experience that, under at-will employment, employers can fire employees for “for good cause, for no cause, or even for cause morally wrong,” [12]. While “cause morally wrong” has now been modified to exclude “sex, race, ethnicity, age, whistleblower, or disability status,” it has not protected those who seek to prevent corporations from committing what would surely be called crimes if committed by an individual—crimes such as poisoning communities, selling lethal products to minors, or destroying the whole planet. No system that can call itself a justice system could sanction cause morally wrong…yet ours does. This wrong flows from unequal treatment of employees and employers in the contract they establish through employment.

Human rights… with giant loopholes. Our Constitution is best understood as a declaration of universal human rights, protecting citizens and non-citizens alike. But the courts often do not enforce these rights [13]. The recent attack on trans people is another example of how human rights, in flagrant violation of the Constitution, are denied. If one can’t get a passport except with one’s official birth gender, and it turns out that one was misgendered (or that, as is generally accepted in science that there are more than two genders [14]), then one’s basic right of travel is denied by fiat. Or take the denial of voting rights to felons that some states impose. Voting is not mentioned in the original Constitution. Yet it is a right without which other rights have no meaning; otherwise, states with a partisan majority could simply extend the franchise only to loyal members of their party. And constitutional amendments have protected the voting rights of a number of classes of people, a tacit admission that the unprotected classes have the right to vote. Not only is there no plausible reason to place a blanket exclusion of voting rights on millions of Americans who have been convicted of a crime, the denial is, in the case of at least one state (Florida, of course) flagrantly unjust and probably illegal [15]. As an aside, is not Florida’s demand for restitution from felons who are poor a poll tax?

These evils flow from a refusal to do simple justice: to treat everyone equally, as a human being worthy of respect. Yes, there are circumstances that justify limiting rights. One might require that violent felons vote by mail rather than in person, for example. One can certainly refuse admission of immigrants based on a criminal history. But regulation rights is very different than denial.

There are other constitutional mutations, actualized or potential, that may not result immediately from disparate treatment of individuals. Among these are:

The problems of excessive presidential power exemplified by Trump, but evident as early as John Adams

The reactionary tendencies of the courts, evident as early as the Civil War

The judicial failure to respect expert consensus, especially in history and science

A patchwork regulatory system vulnerable to capture by industry

The problem of excessive economic concentration on commerce

The need for a level playing field for debate of political ideas

The function of journalism being overtaken by the demands of profit

Tenth Amendment (so-called “States’ Rights”) abuses by the individual states

The failure of the US to acknowledge human rights generally accepted by the world community

It is all these evils—and many more—that constitutional “originalists” hope to resurrect in the misguided notion that forgetting the wisdom purchased by centuries-long internal strife and its reconciliation will somehow bring back the glory of the early Republic. But as should be evident from this section, the root of that glory was the inspiration that it provided to ordinary people to sacrifice for a better way of life, with time and treasure and their very lives, and by engaging themselves in the life of the polis. Offer people instead a society as provincial, as riven by religious hatreds, as racist and sexist as early America—but without a gigantic frontier with all its riches—what inspiration is there in that? And so the destination they have set for America is actually its end: its destruction, its poverty, its death.

To reprise, the problem is not with the political Right per se, but with dishonesty, bad faith, malevolence, and nihilism. Politically, the Right can be understood by the three factions within the Right that, like the Graeae [16], have a great deficit of vision. In caricature, they can be thought of as Greed, Pride, and Narcissism. The anti-tax, anti-regulatory rage of the Right is motivated by Greed . The attempt to impose one version of one religion on an entire nation is motivated by a very unChristian Pride . The desire to exalt white citizens to rescue what is called “Western Civilization” but is actually a rejection of the western Enlightenment which illuminated the Founders is based on Narcissism too blind to even recognize the central importance of Iroquois influence on the Constitution [17].

Part Three will further elucidate these ideas and re-focus them toward the ultimate goal of developing a plan of action.

Part 1 is here: https://www.dailykos.com/stories/2025/3/9/2308931/-The-End-of-the-First-American-Republic-The-Rise-of-the-Second-Part-1

Sources

Why Blacks, Women, and Jews Are Not Mentioned in the Constitution, By Robert A. Goldwin (1922-2010) May 01, 1987 https://www.aei.org/articles/why-blacks-women-and-jews-are-not-mentioned-in-the-constitution/ Declaration of Independence https://www.archives.gov/founding-docs/declaration-transcript Reconstruction Amendments, The Constitution Center, https://constitutioncenter.org/education/classroom-resource-library/classroom/the-reconstruction-amendments Private/Property: A Discourse on Gender Inequality in American Law, Kevin C. Paul,: Law and Inequality 7:399, https://lawandinequality.org/wp-content/uploads/2020/12/24_7Law_Ineq3991988-1989.pdf Bullets and Bigots: Remembering Philadelphia’s 1844 Anti-Catholic Riots. Guns, immigration and religious intolerance are all over the news, Sandy Hingston 12/17/2015, https://www.phillymag.com/news/2015/12/17/philadelphia-anti-catholic-riots-1844/ Chinese Exclusion Act. Cornell Law https://www.law.cornell.edu/index.php/wex/chinese_exclusion_act On this day, the Supreme Court issues the Korematsu decision, The Constitution Center, 12/18/23 https://constitutioncenter.org/blog/on-this-day-the-supreme-court-issues-the-korematsu-decision Guantanamo Bay: Twenty Years of Counterterrorism and Controversy, Jonathan Masters, CFR, 9/9/22, https://www.cfr.org/article/guantanamo-bay-twenty-years-counterterrorism-and-controversy Shelby County v. Holder (2013), Caroline Frederickson and Ilan Wurman, https://constitutioncenter.org/the-constitution/supreme-court-case-library/shelby-county-v-holder Trump's Executive Orders Promoting Sex Discrimination, Explained, Gillian Braunstetter, ACLU, 1/22/25 https://www.aclu.org/news/lgbtq-rights/trumps-executive-orders-promoting-sex-discrimination-explained Timeline of voting rights in the United States, Wikipedia, https://en.wikipedia.org/wiki/Timeline_of_voting_rights_in_the_United_States Discussed in Just Cause We Can: Ending At-Will Employment and Avoiding Pre-emption, Nathaniel Kazlow, Columbia Journal of Law and Social Problems, 56:4 605, https://jlsp.law.columbia.edu/files/2023/09/5-Kazlow.pdf What constitutional rights do undocumented immigrants have? Gretchen Fazee, PBS, Jun 25, 2018 , Jun 25, 2018,https://www.pbs.org/newshour/politics/what-constitutional-rights-do-undocumented-immigrants-have Sex Redefined: The Idea of Two Sexes is Overly Simplistic, Claire Ainsworth and Nature Magazine, Scientific American, 11/22/2018 https://www.scientificamerican.com/article/sex-redefined-the-idea-of-2-sexes-is-overly-simplistic1/ Voting Rights Restoration Efforts in Florida, Brennan Center, 11/18/24, https://www.brennancenter.org/our-work/research-reports/voting-rights-restoration-efforts-florida The Graeae, https://en.wikipedia.org/wiki/Graeae The Native American Government That Helped Inspire the US Constitution, 7/12/23, Becky Little, https://www.history.com/news/iroquois-confederacy-influence-us-constitution

Edits, corrections, and updates

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