Fundamental to the Constitution (aka, A 3rd Constitutional Founding)

Common Sense Paper No. 46

Common Sense Papers 46 through 52 discuss certain arguments for the right kind of independent political movement.

Fundamental to the Constitution (aka, A 3rd Constitutional Founding)

A new political coalition in American political life should be fundamentally supportive of the Constitution. Why? Two reasons: 1) The government experiment established in the late 1700s has been successful for almost 250 years, and 2) anything breaking from the Constitution becomes a revolutionary leap with a high probability of failure that makes adoption by large numbers of people nearly impossible. To do better than the U.S. Constitution (I mean principally, not structurally) is a tough leap indeed, as so many nations fail to achieve the protections that retain the same healthy forms of civil rights that we enjoy in our federal constitutional republic. Our best path is realignment with the Constitution—any other path likely will lead to dysfunction in government structure. If you pump the wrong fuel in your vehicle every day, it doesn’t work. 

Some people love the Constitution—it’s like patriotic nirvana to their soul! Some people are neutral on the Constitution. Some people hate the Constitution based on the idea that it gets in the way of grabbing institutional power to make government function easily and efficiently. Most people who have been required to swear allegiance to defending the Constitution have at least some learned respect for what this document is all about and why it matters.

The 1st Constitutional Founding took place in the years after the Revolutionary War and occurred with great activity in 1787-1788. The 2nd Constitutional Founding followed the devastation of the Civil War and the supposed defeat of states’ rights due to the necessity of combatting the horrors of slavery. A rebuilding of government was necessary and is captured in American history books as the Reconstruction era.

By declaring that a new national independent political coalition will stay committed to the Constitution, we categorically endorse the separation of powers that exists in the three distinct branches of the federal government, with checks and balances to preserve liberty. We acknowledge that we don’t operate a parliamentary system, but rather a presidential system that must operate through congressional procedure and structure. Second, dividing power between the federal government and the states is essential to allow for regional differences in America, where personal liberties are determined at the most local—and accessible—political sphere. Third, the protection of various individual liberties of American citizens remains a critical necessity.

We are not interested in building a coalition that seeks to reimagine the Constitution.

Being committed to the Constitution does not mean favoring status quo candidates who serve entrenched, corrupt influences. In fact, revolutionary reform and renewal are a major feature of this movement. As Frederick Douglass proclaimed:

For the Constitutional framers were peace men, but they preferred revolution to peaceful submission to bondage. They were quiet men, but they did not shrink from agitating against oppression. They believed in order, but not in the order of tyranny. With them, nothing was “settled” that was not right. With them, justice, liberty, and humanity were “final”—not slavery and oppression.¹

John Adams’ words confirm Douglass’ words:

If all men are created equal, that is final. If they are endowed with unalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions.²  

To be a successful national coalition for all citizens, a 3rd Constitutional Founding is necessary. It’s time for that. An important idea that is lost from politics today comes from two of the founding political voices of our country. It’s not clear if they knew that both of them were speaking on the same subject around the same years. It wasn’t a dialogue but seems to appear in the historical record as similar strands of thought from two important voices.

Here are three different attempts to express the idea from Thomas Paine:

Every age and generation must be as free to act for itself, in all cases, as the ages and generations which preceded it. The vanity and presumption of governing beyond the grave, is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation a property in the generations which are to follow. The parliament or the people of 1688, or of any other period, had no more right to dispose of the people of the present day, or to bind or to controul them in any shape whatever, than the parliament or the people of the present day have to dispose of, bind or controul those who are to live a hundred or a thousand years hence. Every generation is, and must be, competent to all the purposes which its occasions require. It is the living, and not the dead, that are to be accommodated. When man ceases to be, his power and his wants cease with him; and having no longer any participation in the concerns of this world, he has no longer any authority in directing who shall be its governors, or how its government shall be organized, or how administered.³

As we are not to live forever ourselves, and other generations are to follow us, we have neither the power nor the right to govern them, or to say how they shall govern themselves. It is the summit of human vanity, and shows a covetousness of power beyond the grave, to be dictating to the world to come. It is sufficient that we do that which is right in our own day, and leave them with the advantage of good examples.⁴

As the generations of the world are every day both commencing and expiring, therefore, when any public act, of this sort, is done, it naturally supposes the age of that generation to be then beginning, and the time contained between coming of age, and the natural end of life, is the extent of time it has a right to go to, which may be about thirty years; for though many may die before, other will live beyond; and the mean time is equally fair for all generations. If it was made an article of the Constitution, that all laws and acts should cease of themselves in thirty years, and have no legal force beyond that time, it would prevent their becoming too numerous and voluminous, and serve to keep them within view in a compact compass. Such as were proper to be continued, would be enacted again, and those which were not, would go into oblivion. There is the same propriety that a nation should fix a time for a full settlement of its affairs, and begin again from a new date, as that an individual should; and to keep within the distance of thirty years would be a convenient period.⁵

In September 1789 Thomas Jefferson wrote to James Madison from Paris that “the question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water.” In making his own answer, Jefferson famously declared that “the earth belongs in usufruct to the living,” that “by the law of nature, one generation is to another as one independent nation to another,” and furthermore that “no society can make a perpetual constitution, or even a perpetual law…. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.”⁶

So, between 1786 and 1791, Thomas Paine made the argument for a generational clean slate of legislative activity—an omnibus sunset clause on government laws and administration. Jefferson in 1789 thought he was inventing the idea of sunsetting government laws and regulations, which he felt should happen at 19 years. So, between 19 years and 30 years seemed to these two Founders like a reasonable generation of time to let laws, regulations, programs, and administrative agencies run their course. The present need to conquer the very problem Thomas Paine saw so clearly—“it would prevent [all laws and acts] becoming too numerous and voluminous, and serve to keep them within view in a compact compass”—is magnified by the more than 100 years of complex, accumulating administrative rulemaking and statutory law. A 3rd Constitutional Founding is centered on the idea of generational sunsets for bureaucratic agencies, legislative acts, and all government programs and budgetary commitments pertaining to the federal government. The ability to require a generational reset is necessary for an adaptive government free from political entrenchment and self-dealing.

The ability to turn off departments and to bring new ones on can significantly change the fresh perspectives of government staffing, talent acquisition, updating best practices, and maintaining a dynamic workforce. Operating select units of government with start-up culture is likely to yield significant improvements in employee morale, significant improvements in program customer service, significant benefits in the use of automated technologies within privacy limits, and other cultural shifts in adapting bureaucracy to the needs of the present while purging the stagnation of bureaucratic process that hampers effectiveness.

The complexities of doing this are mind-boggling, but so what? This is not a call to “burn the place down.” It’s like demolishing an unfit and aged building project in the middle of modern skyscrapers with the intention of having the clean-up crews and new blueprints ready to reconstruct the proper building for the city and its needs. This is about clearing out stagnant processes and procedures and beginning a revitalization project for the best pathway forward. 

How would such a thing be done? Congress would probably need to hold debates and hearings on the subject. A Select Committee of qualified individuals would probably need to be appointed to explore different offerings. Perhaps multiple Select Committees could compete with ideas on the same bureaus or focus on different areas to keep the scope within reason. Nearly all current areas of the federal government would be outlined for staggering sunsets starting 2, 4, 6, 8, 10, 12, and 16 years from now. Some could be effective immediately. Concurrent with sunsets, new administrative areas could be authorized with 20-year or 30-year program windows and staffed under new civil service (at-will employment) structures. New locations for departments could be identified around the country to disperse the collective weight of Washington, DC culture. Renaming bureaus such as the FBI and CIA could come with realigned authorization of specific domains of activity. The Justice Department and State Departments would be handled delicately but decisively. Perhaps some departments could be closed and outsourced to government-sponsored nonprofit organizations that are newly created and funded to fulfill specific programmatic missions where innovation is rewarded, and waste is continually expunged. 

Similar to the innovations of the private sector, government department services in some cases could be selected through pitch competitions, where private nonprofits, or corporations willing to sponsor a nonprofit division, make pitches and suggestions on how best to upgrade and fulfill certain government services in the modern area—with attention to data security, customer service, the cost-effectiveness of provisions, and other innovative structural components. Long-dated contracts could be awarded to single or multiple entities.

Countless Washington experts and management consultants would be more capable than I am of describing the types of changes this could bring to modernize our federal executive infrastructure. But without a deep reset of the democratically-elected body of the citizens’ representatives in Congress, no such major creative force is likely to be unleashed for the good of our country.

A 3rd Constitutional Founding episode of our national experiment requires that such a sunset and renewal of federal bureaucracy, regulation, and legislation take place with open dialogues to coalitions of states that have their interests and prerogatives duly respected and reflected in the proposals that ultimately get presented on the floors of the House and Senate for legislative approval. The voice of the White House administration would also be heavily involved in achieving a modern best-practices list that enables duly elected and appointed executive branch officers to be fully effective within their authorized scope, rather than fumbling and bumbling with complex administrative agencies that run on auto-pilot due to accumulated weight and size. Outside consultants and think tanks should also be appointed by different political parties to review recommendations and comment on the wisdom of various proposals from Select Committees, coalitions of states, and the White House administration. The sheer task would be massive, but once a few simpler and smaller areas of government have been successfully reviewed, legislated to sunset, and replaced with new proposals for similar, different, or no services, the process can proceed to more complex and sensitive government administrative departments. 

A 3rd Constitutional Founding paves the way for generational turnings in government administrative structures and services, legislative actions, and regulatory burdens. It would establish an ongoing framework for paring back the growth of bureaucratic power that attracts special interests. I can only imagine the founders and signers of the Constitution looking down on our present predicaments related to government complexity. Far from rolling in their graves, I think they would chuckle at the suggestions in this essay and simply ask: “What took you so long to figure this out?” 

Notes for new readers:

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1. Steven Rabb, The Founders' Speech to a Nation in Crisis (Atlanta: Liberty For All Publishers, 2020) 88.

2. Ibid.

3. Thomas Paine, "The Rights of Man, Part I (1791 Edition)," Online Library of Liberty, https://oll.libertyfund.org/titles/paine-the-rights-of-man-part-i-1791-ed (accessed February 24, 2024).

4. Thomas Paine, "The Writings of Thomas Paine, Vol. II (1779-1792)," Online Library of Liberty, https://oll.libertyfund.org/titles/paine-the-writings-of-thomas-paine-vol-ii-1779-1792 (accessed February 24, 2024).

5. Ibid.

6. “To James Madison from Thomas Jefferson, 6 September 1789,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-12-02-0248. [Original source: The Papers of James Madison, vol. 12, 2 March 1789 – 20 January 1790 and supplement 24 October 1775 – 24 January 1789, ed. Charles F. Hobson and Robert A. Rutland. Charlottesville: University Press of Virginia, 1979, pp. 382–388.]