Patriot Academy Classmate Reactions

Yesterday (by some obscure definition of yesterday) I shared some progressive feedback on my recent article in The New Republic (correct link this time) on shooting guns and doing…something…to the Constitution that involves constitutional alterations in the name of a Biblical America (nothing good).

But people usually don’t ask me about progressive feedback. The question I’ve gotten most often is: what did Patriot Academy think of the article?I have not heard from Rick Green, and while I would certainly like to hear from him I’m not holding my breath. I did, however, hear from four Patriot Academy classmates, and the results, overall, were pretty unanimous.

Here are some excerpts:

#1

#2

#3:

#4:

There’s a common thread of criticism in here, and it’s an understandable one. I try very hard to use the terms that people themselves use for their ideas, even if I challenge those terms. And no one who supports Convention of States would ever, ever describe their goals for the Constitution as a “rewrite.”

Still, I cannot apologize for using the word “rewrite” instead of “restore,” which is the word they’d likely use. From where I sit, “rewrite” accurately describes COSA’s goals. The article was 6500 words — 1500 over the original limit. A defense of the term would necessitate a cut, and I was not willing to cut anything. It is what it is.

I have plenty of room to discuss the word “rewrite” here on the substack, though, so let’s get to it.

First off, I agree with my Patriot Academy classmates that an Article V convention is a perfectly valid way to make much-needed adjustments to our founding documents. The originalist argument is pretty ironclad: the founding fathers clearly intended us to amend the constitution, which is why they put Article V in there. More importantly, at least to me, it’s good practice to periodically update a document written in an age when information could not move faster than a horse, America’s population was approximately 2.5 million people — about a third of the people who live in New York City today — and slavery was both legal and actively practiced by several of the men who wrote it.

Russ Feingold, who I quote extensively in the article, supports an Article V convention in theory as well. “I do not think that the term ‘bloodless revolution’ is a bad term,” he told me during our interview. “In fact, it was a legitimate motivation of people who fought to have the option of the constitutional convention in the Constitution…the idea of a bloodless revolution is legitimate, as opposed to a bloody revolution.”

Whether the results of an Article V convention qualifies as a rewrite or a restoration depends on what kind of amendments come out of it. As discussed in the article, we know what COSA’s preferred amendments would be. Are they restorations, modifications, or rewrites?

I’m no constitutional scholar, but I do hold a bachelor’s degree in Political Science from the finest institution of higher education in the country (I said what I said) and possess the boundless self-confidence of a mediocre man speaking to a woman when it comes to answering questions only peripherally within my area of expertise with sweeping declarative answers. Let’s do this.

(For the purpose of this exercise, I will assume the same thing most conservatives do: that our brilliant Founding Fathers crafted a nearly-flawless Constitution and that every decision, from wording to exclusion, was deliberate and perfect).

1) Abolition of the federal income tax.

This move would require the repeal of the Sixteenth Amendment, which could be characterized as a revision (amendments are still part of the constitution). COSA supporters, however, would argue that the sixteenth amendment was itself a rewrite and its repeal would restore Article 9, Section 1, which reads in part:

As with literally every other part of the Constitution, scholars have debated just about every term in this sentence for centuries, including but not limited to “direct,” “enumerated,” and “proportion.” A direct tax is a tax each individual has to pay the government directly (as opposed to something like a sales tax, where you pay the store and the store pays the government — it’s not a set amount assigned to each person). “Enumeration” refers to Article I, Section 2, which reads (in part):

So right off the bat this whole clause is suspect for reasons I assume are obvious, but regardless: let’s gloss over the 3/5ths of a person thing and look at the overarching theory, which is that the direct tax each state owes must be based exclusively on population. Rhode Island has .3% of the US population, so it would owe .3% of the total tax levied by the federal government. California, which contains 12% of the US population, woud owe 12% of all taxes.

Credit where credit is due: an income tax is very different from an apportioned tax. The Supreme Court declared the income tax unconstitutional in 1895, which is the reason we have a Sixteenth Amendment in the first place. I think this is a bad restoration, but it does fall into the broad category of getting back to the founders’ original meaning.

Verdict: Restoration

2) Congressional term limits

The constitution does not include term limits, so this amendment would not be a restoration. One could argue that term limits constitute a revision, but I’m leaning rewrite because the Articles of Confederation included term limits. Leaving out term limits was, therefore, a very conscious and deliberate decision. Adding them back in directly contradicts the intent of America’s founders.

Verdict: Rewrite

3) Severe restrictions on how much federal debt the government can take on

The constitution mentions the issue of debt exactly twice. Article VI states:

The Fourteenth Amendment states:

Not only do these two clauses place no limits on debt the federal government can take on, many scholars argue that the fourteenth amendment expressly forbids our periodic congressional kabuki regarding the debt ceiling. Limiting federal debt changes everything about the way our government operates and could, depending on how the amendment is written, mean invalidating current debts in direct violation of both Article VI and the Fourteenth Amendment. That’s the opposite of restoration.

Verdict: Rewrite

4) Nullification of Federal Law If 30 States Vote to Overturn It

Nullification is the theory that the states, not the federal courts, are responsible for interpreting the Constitution, and therefore states have the right to refuse to follow federal laws that are unconstitutional. You can imagine the chaos that would ensure if we embraced the simplest version of this particular theory.

The constitution does not directly address nullification so right off the bat, a nullification amendment would not be a restoration. We’re looking at revision at the very least.

The argument for nullification, as I understand it, is that the constitution does not directly say states can’t nullify laws, but Thomas Jefferson advocated for it when John Adams passed the Alien and Sedition acts, and Jefferson famously had a pretty big role in drafting the constitution, so…

Also though? Several Federalist Papers explicitly reject nullification. The Supreme Court has rejected every single state attempt at nullification — most recently and famously, efforts by Southern states to avoid school integration and defend Jim Crow. Less recently, Southern states attempted nullification in the 1830s over tarrifs and it did not go well for them then either. In other words, constitutional interpretations have been quite consistent: no nullification.

Verdict: Rewrite

5) Closure of the commerce clause loophole

Oh look, the Third Rail of the American Constitution.

I am not going to reprise two and a half centuries of intellectual cage fighting over the commerce clause, just state two things I think are pretty obvious:

1. The commerce clause has been stretched beyond recognition. Goatse wishes.

2. Closing the commerce clause loophole would go against a million Supreme Court rulings and change everything about how this government operates

Verdict: AAAAAAAAAAAA

The question of the commerce clause loophole gets to the actual issue at the base of the rewrite vs restore argument: not the literal one (which I feel I’ve just made a decent case for) but the one that actually matters.

We do not live in 1788. We are not a small nation of agrarians and slaveowners. We are a burgeoning nation of 331.4 million interconnected tech workers screaming at each other over a network of ones and zeroes. The advent of that network, and the societal changes it set in motion, threaten to make the advent of the printing press look like just another Tuesday. I agree with the Patriots that Thomas Jefferson would take one look at this madhouse of a country and fall over dead of a heart attack, be resuscitated, wake up in the hospital, and die all over again. The difference is, I don’t think the cause of death would be heartbreak at what happened to the American dream, but shock and incomprehension at our modern world.

We cannot go back.

We cannot go back to the 90s, and I remember enough about that decade to know we should not want to. We cannot go back to the 50s, or the 1780s, or Catholic Europe, or pre-agricultural family groups, or whatever arbitrary time you think Eden happened. Time goes forward. We must move forward also.

Call COSA’s goals constitutional restoration if you want to. But even if the COSA agenda involved a Retvrn to Actual Tradition, the changes required would completely rewrite America’s legal framework as it exists today.

Do you want a libertarian paradise? Argue for one in today’s world. Want a Christian nation? Project it into the future. I want neither thing, will fight against both of them, but at least we will be having an actual debate about policy instead of indulging in a fantasy that things were OK once and could be OK again. I’m not sure anything is going to be OK, ever, but I’m quite sure nothing has ever been OK before. Any attempt to regress to the past is inevitably a journey into a new future based on a bad premise.

COSA wants to rewrite the underpinnings of our dying modern world. So do I. So do all of us, one way or another, who aren’t sipping coffee in a burning building and saying this is fine. No need for shame around it. Call it what it is.

My use of the word “rewrite” was intended to scare the hell out of people who read it, because COSA scares the hell out of me. But the word isn’t an insult. I have nothing but respect for the kind of optimism and gumption it takes to look at this fucked world, say “we must do something about this,” and then devote time and energy to doing something about this, even if that something is abhorrent to me. I have far more in common with Patriot Academy attendees than anyone who accepts the world as it is right now. If you’re reading this, odds are good you do too.

Thank you to everyone who wrote me with reactions — good, bad and ugly. I enjoyed reading them, enjoyed thinking about them, and are honored that you took the time to read the thing I wrote. Please keep writing. I’ll do the same.