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:
  1. List all the abuses one can find anyone complaining about.
  2. Find and list all the statutes, regulations, and sustaining court decisions that have enabled those abuses. See http://constitution.org/ussc/ussc_milestones.html
  3. Within each of the cases, find the key legal terms the misinterpretation of which enabled the adverse precedent.
  4. Find as many legal scholars as possible who have done deep analyses of the terms found.
  5. Trace the path of the misinterpretations from case to case.
  6. Compose the language that would be needed not only to reverse the misinterpretations, but prevent future clever lawyers from twisting them into more misinterpretations.
  7. Plan a path to getting that revision language adopted, whether though litigation, legislation, or constitutional amendment.
  8. Gather as many of those scholars together as possible to hammer out language that can win acceptance of a larger population.
  9. Build support from ever wider circles of influencers and decisionmakers.
  10. 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:
  1. 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.
  2. Purge yourself of dependency. Accept help if it comes but don't expect any.
  3. Use scientific thinking. Try to refute every model and keep looking for more.
  4. Keep plans as brief and simple as possible, but no briefer or simpler.
  5. 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.
  6. Anticipate unanticipated consequences. These are complicated systems that no one really understands, including you.
  7. Allow a reasonable margin for error, including errors in the planning process itself.
  8. Anticipate all the ways any plans might be twisted by clever adversaries trying to find ways to undermine them.
  9. Make sure there is always someone to challenge any plan. Groupthink kills.
  10. Don't try to micromanage every detail of execution. Find trustworthy people to whom details can be delegated. But verify their work.
  11. Don't depend entirely on summary reports from subordinates, but sample the raw data from time to time to stay grounded.
  12. Be prepared to change plans rapidly, but always have some plan at any given moment.
  13. Avoid introducing perverse incentives that may cause team members to pursue their own agendas in ways that conflict with the general mission.
  14. 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.
  15. 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.
  16. 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.



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Original URL: http://constitution.org/cons/con_action.html 
Maintained: Jon Roland of the Constitution Society
Original date: 2012/10/27