Others have written in more depth on the Bill of Rights Repeal that shuffled its way through the Senate, from the disingenuous press, to the debate being between two reactionary wings of the Republican Party, to the absolutely glaring incompetence of the Democratic Caucus in the Senate, which burned their base to the ground in return for dubious political advantage, the entire sad spectacle proves that a government can be no smarter than the medium which elects it, and our government is still elected by television.

Others have written with great depth and insight on the results this bill, however, it is not an isolated incident, but part of a broader pattern of our constitutional crisis.

Of the original 10 amendments to the Constitution of 1787 - IV, V, VI, VII and VIII are directed at arrest, trial and punishment. The bill passed by the Senate yesterday, and already rubber stamped by the house, effectively repeals all of these Amendments, because it allows a class of people declared by executive fiat to be treated in a manner which is separate from the rest of the judicial system.

The reason for the focus by the founding fathers on due process and the common law, was that they had been the intense focus of violations of the common law. One specific abuse was that of the Star Chamber, by which kings used religious courts to extract confessions and force testimony. We have now descended to the level of confused demogougery, where any right, however old and precious, may be revoked by a constitutional super-minority, a rump Congress with almost no support in the country, and supported by a supine press which insists in not reading the contents of the bill itself, but mischaracterizing it as applying to "terror suspects" as if this meant other people.

This moment was crucial, because it lays before the American people a very specific constitutional order, which links all of the components: mandate, meaning and mechanism. More than any other single election, this congressional election is about ratifying the new constitutional order which has been built up since Bush v Gore stripped citizens of the right to vote, and began the process of repealing, first the XIVth amendment, and now core sections of the Bill of Rights itself. FDR asked people during the Great Depression whether they felt striped of any rights. Then, by overwhelming majorities, people said they had not been. Now, by an every increasing majority, people believe that they have been.

A government rests on three interconnected concepts. The first is the mandate of the government, that is what people feel the government should, must or has the ability to use its power to accomplish. The second is the mechanisms by which the government pursues this mandate, one of the most important of these being the workings of the monetary system. The third, which joins the two, is the sense of meaning that the public has. A functioning government is able to effectively pursue its ends, by expressing a need encompassed by the mandate, which explains why the particular mechanisms work within the meaning which people hold.

Note that mandate and end are not the same thing: there is no requirment that a government actually be attempting to advance the mandate that it is given, merely that it must be able to justify its actions in terms of that mandate. However, nations which either have dysfunctional mandates, or a cavelier disregard for the divergence between stated and real goals in their effects, soon pass into history, or have political turmoil which changes the regime. The mandate of the Ancien Regime of France was glory and victory and a bearable cost, which is too long disregarded, and fell into revolt and revolution.

Democracy is a system where the public often decides whether politicians are effective at ennunciating meaning, sometimes decides whether there is to be a change in mechanism or mandate, and occasionally must face a sweeping alteration of all three aspects of constitutional order.

It is the work of Prof. Bruce Ackerman, whose LA Times piece I linked to above, which creates the beginning of a framework for understanding the process of creation and dissolution of constitutional orders in the United States, in his two volume work, We, The People he examines three critical points of transition - the Constitution of 1787, the creation of the XIVth Amendment, and the shift in FDR's conception of the New Deal and the establishment of the Interstate Commerce Clause as the rationale for expansive Federal power. His book is in direct response to formalist schools of government, but in making a reply to a school which his work helped reduce in importance, he created a framework for understanding transition which reaches far beyond academic theory.

His framework rests on a large division of the constitutional lens through which we interpret the American constitution, and a more localized theory of the importance of disturbance and formal violation. Constitutions are created, he argues, by bend and breaking the rules, which establishes both the political will of those establishing the new order, and the limits of political action. Seldom are those limits reached, or even allowed, afterwards.

The moment of bending also creates the fundamental meaning, burned in by national trauma, and tested by its own process of establishment. New constitutional order is created by the process of disorder.

This theory proves its utility by being expandable to the realm of economics, extensible into the past, and applicable to the present.

The expansion is crucial. One of the realities of a governmental order is that it is born into debt - it owes upon the collapse of the previous constitutional order. People do not change their arrangements because the past worked, but because it has ceased to work. The Constitution of 1787 was a direct response to the inflationary peak of the Enlightenment's collapse, the Civil War a direct response to the collapse of the efforts to create a bimetallic system of currency, the New Deal to the Great Depression.

Each constitutional era has not only changed how it interprets the Constitution, but how money works. Since money is what provides incentives and shapes action, it also shapes the society. The extensiveness of the changes has led me to argue that we should regard these shifts as creating separate Republics - the Federalist Republic, the Union, the Liberal Democracy.

The theory is also extensible into the past. Constitutional governance did not begin in America in 1787, but instead even before Europeans began an aggressive program of colonization. While the governance of the native nations is interesting and important, the cycle of constitutional change in American is synchronized to the European economy and polity.

There were, by this measure, two previous constitutional cycles in the Colonial period. The first where colonies were regarded as corporations, and the second where the British crown, required to defend them with main military force, saw them as a source of silver, and thus the need to tie them to the silver penny. The shift between these two eras, and from these eras to the Federal Constitution, shows the same process of debt, establishment, decentralized revolt, and finally reconstitution.

The question of applicability to the present is also of crucial importance. There is a tendency of people to look only at their particular part of the functioning of a government - whether that is personal and civic rights, contract and property rights, functioning of the economy, or social and cultural activity - rather than at how all of these pieces exist in combination. People understand the interests and rights that they use, and the adversarial political system relies on people stepping forward to defend those rights when they are, or appear to be, under threat.

However the application is rather straight forward: the mandate of the present government is not the mandate of the Liberal Democracy. Last night's bill was phrased as being necessary because of a new threat to the body politic, and one which allowed the sweeping alteration of practice, the effective abrogation of treaties and what Rep. Louis Slaughter points out is "a pardon for himself and the architects ... of this policy."

By capitulating on this before the election, the present Democratic Party has ratified this as the mandate of the new government. Breaking the law and then making it legal ex-post facto is precisely the kind of formal violation which establishes the will of a new mandate coming into being. There is not only no going back to the Liberal Democracy, but America now lives in a post-Federal era. There is a national shadow government, and it is not bound by the limitations of the bill of rights.

This is an invocation of the right of governments to self-preservation, an ur-right which is seen precisely at moments of constitutional change. Under normal circumstances, everyone assumes that the government will be there tomorrow and the day after. Under normal circumstances governments do not need to explain this right, nor do they need to do much in the way of justifying the national interest. When sweeping changes were made after the Civil War, it was the eternal nature of the Union to which they appealed. Likewise the abrogation of gold clauses which was justified on the exigent needs of continuing the government.

A paranoid fear of "terrorism" has now joined this elect list of overriding mandates in American history. Americans have decided, by narrow but successive majorities, ratified by members of both parties repeatedly, that the stock market crash of 2000 and the attacks of 9/11 justify a complete dismantling of their structure of rights, and the absolute and permanent change in their status.

Since the Federal government already defines "terrorism" to include domestic acts of vandalism, and the NIE which has been partially declassified declares "leftists" and "anti-globalists" to be on the list of potential terrorists, this is not about catching the perpetrators of a series of terrorist attacks - embassy bombings, the attack on the USS Cole, 9/11, M-11 and 7/7 - but an unlimited and unchallengeable right to detain, try and punish anyone who is deemed to be "an unlawful combatant".

This is not, in short a bureaucratic red tape cutting exercise, but, in essence, and Amendment to the Constitution that reads: "All other rights are superceded by the needs of the state, under the sole discretion of the executive."

This breaks to pieces any doctrine of rights or of proportionality:

In imposing RFRA's requirements on the States, Congress relied on the Fourteenth Amendment, which, inter alia, guarantees that no State shall make or enforce any law depriving any person of "life, liberty, or property, without due process of law," or denying any person the "equal protection of the laws," §1, and empowers Congress "to enforce" those guarantees by "appropriate legislation," §5. Respondent and the United States as amicus contend that RFRA is permissible enforcement legislation under §5. Although Congress certainly can enact legislation enforcing the constitutional right to the free exercise of religion, see, e.g., Cantwell v. Connecticut, 310 U.S. 296, 303 , its §5 power "to enforce" is only preventive or "remedial," South Carolina v. Katzenbach, 383 U.S. 301, 326 . The Amendment's design and §5's text are inconsistent with any suggestion that Congress has the power to decree the substance of the Amendment's restrictions on the States. Legislation which alters the Free Exercise Clause's meaning cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is.

In short, this legislation is completely and obviously unconstitutional, and yet it will survive judicial review, simply because the present Constitutional order cannot survive without it. It is impossible to have a regular transfer of power, where the architects of power are going to be arrested upon leaving office. If their architecture remains behind they must remain at liberty.

This lack of proportion of the powers granted by this legislation with the harms protected - imagine that similar powers were granted to deal with any other ill which has killed 3,000 people in the US, such as smoking or drunk driving - is a key feature of the new order in American politics. Iraq is another case of lack of proportionality. Applied methodically, the "1% Doctrine" which was invoked to invade Iraq, should logically mean that the other nations of the world should invade the United States, since there is more than a 1% chance that the United States will use nuclear weapons. This lack of coherent proportionality in pursuit of a paranoid mandate begs the point made at the opening of this post: namely the divergence between mandate and results, and the results of a dysfunctional mandate.

The connection is money. As long as people are able to purchase the goods and services they need, as long as they are able to cash checks and carry on daily commerce, there is absolutely no chance of revolution, because revolution disrupts all of these things. People will drive forward, even knowing they are going the wrong way, rather than turn into a stopped off ramp. It is only when the highway becomes clogged to the point of immobility that they will consider leaving it.

Hence constitutional orders rest on a group of people facing insolvency, and acting in concert to secure the liquidity that they need, structured in the way which they prefer. It might seem a distant connection between the repeal of the Bill of Rights, and liquidity, but it is no distance at all. What actions are being made ex-post facto legal? Those which were required to invade Iraq. Why was Iraq invaded? To gain access to the oil. Why oil? Because it is the basis of economic activity. We went to take the oil, and under the doctrine of the national interest, anything done to get the oil must also be made legal, whatever violence is done to other arrangements.

However, this entire process has put the United States on a collision course with civil disorder, most likely economic. The reason for this is the ur-reason for all constitutional orders collapsing. The reality of every economic system is that it is based on promises about the future. We accept money because we assume we can spend it. In almost every situation, some parties must defer what they want to some later date, and be convinced that by deferring what they want, they will have something of greater value later, or that by not defering and causing a crisis, they will be much worse off.

A point of constitutional crisis becomes acute when the total stream of future good is clearly incapable of paying the minimal expectations of those who have deferred claims in the present. People can be crammed down to take much less than they hoped for, but after all the cramming down is done, there must still be enough to pay out.

The Civil War represents one of the clearest examples: the need for slave holders to expand in order to be able to store wealth in the form of slaves collided with the hopes of free soil farmers seeking land. When the slave system ran out of land running south, it had to turn north, and breath the compromises that had been the modus vivendi of the previous order. The Federalist Republic collapsed like dominoes - with compromises broken, the means by which some people could defer what they want to some future date collapsed. When this collapsed, the political dialog collapsed. When political dialog collapsed, one side, in this case the slave owners, claimed, in essence, every future acre of American expansion.

This was more than the free laborers hoping for land could bear - and when they demanded a halt to the process, the south and the slave owners rebelled, and hoped to force a peace whereby their future demands would be fulfilled.

We reach the same point now, only in a different way. There are a host of future promises on the stream of future revenue and work: Medicare, Social Security, Stocks, Treasury Notes and home values. The total of claims on the future is now much more than the total of revenue that future can create. Soon it will be so obvious that the government will have to do what was done in the run up to the Civil War, and in the aftermath of the Great Depression - declare previous debts null and void.

The current housing market collapse is a piece of the cramming down of the American public. The pension system has been raided, the Social Security system has been raided. But now Medicare must be crammed down. What will happen after this election is the parcelling out of the pain for the massive debts which the last 25 years have racked up, and which Iraq have brought to an unsustainable level. Iraq was supposed to allow the cram down by giving the lower 90% of the public access to cheap gas - which is what drives the consumer economy - and taking the money and giving it to the top 10%. Depressionary economics is the reactionary solution - the poor get less money, but are promised lower prices to compensate.

The failure of Iraq, like the failure of Texas to create a vast new zone of slave agriculture, seals the doom of those who have hoped for a return of the previous political order. Those who sat by assuming that they could give way on irreplaceable rights so long as their paychecks and social security checks kept coming, or that they could sell their houses and cash out - are about to find out that those who do not defend their interests, do not long have those interests to worry about. If freedom means nothing left to lose, millions of Americans are about to be very free.

Since the mandate of protecting from "terrorism" now justifies trillions in debt and unlimited spending on wars of aggression, and there is no review of the results of these actions, the money to pay these claims is not ever going to be there. They were supposed to be paid out of rising real wages. However, real wages have been flat for a generation. This was avoided for a while by drawing down two kinds of savings: the first in economic terms, and the second in social terms as wives went out to work. Since we have now reached, and indeed passed, the peak of labor availability, and the savings rate is now negative, this can no longer be done.

That flow of wages must, ultimately, pay all treasury bonds, all dividends, all social security checks and all medicare. Since that stream is shrinking day by day, and the promises made grow ever larger, there is no way that everyone who has been promised a slice of this stream of money will get that money. Since America has given unlimited power to those who promise that the dividends and treasury bonds will be paid, and that war will go on forever, the other promises will have to be revoked to pay for that. There is no other choice.

It was a nice Republic, pity we could not keep it.

Strangely, this may well help the Democratic Party electorally. Having created a war without end mandate, the public may well want a divided government to preside over it, just to make sure that the corruption spatters in all direction.

This is not strange - the UK put Conservatives in charge of the Labour Party's social welfare state, Jefferson's party presided over the republic that Hamilton created. Often the party that makes a particular order ends up watching as the other party runs the government.

It is not impossible that having created a super-national state on the back of "the Democrats won't use the power", that the voting public may well decide that putting unlimited power in the hands of people who won't use it is the way to go. The last month has seen, not the rise of progressive Democrats, but Conservative Democrats. In the Senate Whitehouse, Menendez, Lamont and Menendez are all behind or in close races, while the races that have vaulted to the top are Ford, Tester and Webb.