The recent assaults on property rights by abusive governments and law-enforcement agencies, the “lawfare” against President Trump and his associates, in which the same misdeed is treated quite differently depending on the perpetrator, and the shenanigans and double standards surrounding U.S. elections all show that U.S. constitutional protections are increasingly being eroded. To defend them, more than just legislation is needed, because legislation can be reversed with every short-term swing of the electoral pendulum. We need a 28th Amendment to the U.S. Constitution. I would like to explore herein what such an Amendment should contain.

As this column has often noted, the United States’ most heinous Constitutional defect is that it does not provide adequate protection for property rights. Even though the dilettante leftist Thomas Jefferson had read John Locke, he was so infected with woolly-headed ideas from the French ‘philosophes’ that he substituted airy and meaningless French blather about “the pursuit of happiness” for the rock-solid protection of private property that Locke thought essential to civilized existence.

More serious was the omission of solid protection of property rights from the U.S. Constitution itself. It is not clear why this occurred; the framers of the Constitution were men of property themselves, and having been through the Revolutionary War should have been aware of the fragility of their property rights in a disturbed era. One problem may have been that the framers themselves had been guilty of property rights violations, from the Boston Tea Party, which even the conservative John Adams described as “the most magnificent Movement of all” to the disgraceful looting of Loyalist properties during and after the war. With the framers mostly complicit in violating the property rights of their fellow citizens, it is perhaps too much to have hoped that they would insert adequate protection of those rights in their new Constitution. The Takings Clause in the Fifth Amendment provided some protection against outright government expropriation, but the experience of Suzette Kelo, (Kelo v. New London, 2005) victims of civil forfeiture and others has shown that protection to be woefully inadequate.

Throughout U.S. history, various government actions have violated property rights. For example, when the British decided slave emancipation was necessary throughout their Empire in 1833, they passed legislation that provided for compensation to slaveholders who had invested their fortunes in the slaves necessary to plantation life. That compensation was less than the market value of those slaves, but it at least ensured that property owners in the West Indies would not be left impoverished and could carry on their plantation businesses with the newly free labor. Alas, the West Indian economies were destroyed a decade later by the 1846 Sugar Duties Act, passed in a fit of free trade fanaticism, which made West Indian sugar produced by free labor uncompetitive in its main market compared to sugar from the slave economies of Cuba and Brazil.

There was no significant movement to compensate slaveholders in the United States, even before the horrors of the Civil War struck. You would think that the new Republican party, threatening destruction to the livelihood of its Southern neighbors, would before 1860 have come up with an abolition compensation scheme, which might perhaps have kept the Upper South within the Union, making the Civil War short and far less bloody than it became. Instead, except in the District of Columbia, abolition was achieved by the Thirteenth Amendment of 1865 and no compensation was paid even in the states that had remained loyal, like Kentucky and Maryland. The result was that the South, deprived of the vast majority of its capital, remained impoverished for three generations until the 1940s. Even those few Southern industrial businesses still standing after the war, such as Tredegar Iron Works in Richmond, were unable to finance a conversion to Bessemer steel production when that became necessary around 1870-75, and so declined into bankruptcy, unable to compete with well-capitalized Northern competitors.

The appalling 2005 Kelo v. New London Supreme Court decision, about which this column has written frequently, allowed states and municipalities to seize private property, even for private redevelopment by entities with better political connections than the property owner. There has also been a plethora of civil forfeiture actions, which have grown more egregious during the last decade, in which police systems have financed themselves by seizing the assets of politically disfavored persons – New York’s tyrannical Attorney General Letitia James is clearly planning to do this to President Trump should he fail to be elected President. The environmental movement has also allowed landholders to be disposed of their mineral and other rights on trivial and economically damaging grounds. With left-wing governments becoming increasingly unrestrained and ever larger, this needs to be stopped by a Constitutional amendment, rectifying the lapses in the original document, so that short-term Congressional or Presidential majorities cannot violate property rights henceforward.

The other issue that needs to be settled by Constitutional amendment is the integrity of elections. It is now clear that, at the very least, substantial attempts were made to subvert the 2020 Presidential election, although whether such attempts were sufficient to overturn the result remains unknown, and is now essentially unknowable, since the question was not looked at judicially immediately, as it should have been. It is also clear that any electronic vote-casting or vote-counting system is appallingly vulnerable to being hacked, and that there is no foolproof way to protect against this. Furthermore, with a vast influx of illegal immigrants in the last decade, the incentive to register those immigrants and allow them to negate the legitimate votes of U.S. citizens is immense. The new 28th Amendment, without going into complexity, must address these problems; without secure elections there is no democracy or indeed constitutional government.

To stabilize democracy fully, there are other problems that must be addressed. Illegal immigration itself is a monstrous violation of the legal order, that bears disproportionately on the poorer members of domestic society. Since Democrat administrations are slaves to their globalist left wing, some mechanism must be found to make the immigration system “Democrat-proof.” With luck, electoral reform will reduce Democrats’ incentives to cheat, thereby increasing the importance of ordinary voters to their coalition as compared to activists, which will ensure in turn that future Democrat administrations are at least on balance on the same side as the rest of us.

There is a case for a constitutional amendment setting the size of the Supreme Court at nine Justices. This would ordinarily be a detail that could be the subject of reasoned democratic debate, but the moves by FDR in 1937 and the Democrat left more recently to rig the system by “packing” the Supreme Court suggest that additional protections are appropriate.

It must surely now be clear that the Federal Reserve System instituted in 1913 has been an unmitigated disaster, causing persistent long-term inflation that has eroded the savings of ordinary people, while creating asset bubble after asset bubble that have enriched speculators. The system’s much vaunted “management” of the economy has involved massive errors of conventional consensus wisdom, so much so that a blind man with a pin could have selected a better monetary policy on average over the last century. Only when Paul Volcker was Fed Chairman did the system operate as it should have, reducing inflation and quelling bubbles, but that period lasted only eight years and attempts to reproduce Volcker’s success have run up against massive political opposition from both parties. The solution is a constitutional amendment mandating the Gold Standard, which would make the Fed dangerous and superfluous, leading to its abolition. Given the immense embedded political opposition, however, this is something to work towards rather than implement immediately.

With the 28th Amendment limited to property rights and elections, this is my rough draft of how it should read:

Twenty-Eighth Amendment

Section 1. Property Rights
No government, State, Federal or local, nor any agency of any government, nor any agency of police powers, shall deprive any U.S. Citizen of their property or restrict any U.S. Citizen from free enjoyment of their property.

Section 2. Elections.
Elections shall be carried out by paper ballot and counted manually, and all persons voting in such elections shall provide valid identification to prove that they are U.S. citizens of voting age.

That wording doubtless requires a few days’ discussion between a group of like-minded people knowledgeable in U.S. constitutional law to perfect it (I have no such expertise) but something along the above lines should prove an invaluable pair of safeguards that recent events have shown to be sadly lacking.

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(The Bear’s Lair is a weekly column that is intended to appear each Monday, an appropriately gloomy day of the week. Its rationale is that the proportion of “sell” recommendations put out by Wall Street houses remains far below that of “buy” recommendations. Accordingly, investors have an excess of positive information and very little negative information. The column thus takes the ursine view of life and the market, in the hope that it may be usefully different from what investors see elsewhere.)