Burn The Constitution Once Again

In a 1988 memoir recounting his thirty-year tenure as chief Washington correspondent of the Sunday Times, the British journalist Henry Brandon recalled the flicker of disquiet he felt in 1964 as he watched the chaos and extremism of Barry Goldwater’s hard-right presidential campaign. He had wondered, at the time, if it was an omen of things to come.

But looking back at the Goldwater interlude from the sunny vantage point of the Reagan years merely underscored, for Brandon, the fundamental placidity and moderation of American politics. “Despite the outward appearance of disorder and confusion, bordering on turmoil and chaos,” he reflected, “in reality the political shifts as usual were only minor. It was another example of the remarkable stability of the American political scene.”

“The remarkable stability of the American political scene” is not a phrase one is apt to hear these days from British journalists. More typical is what Edward Luce, veteran Washington correspondent of the Financial Times, wrote in a recent column on the Trump administration’s penchant for “incinerating America’s traditions of law, civility and restraint”: “As America prepares to commemorate its 250th anniversary,” he warned, “the republic is flirting with its own funeral.”

It’s been a long time coming. The following essay appeared in the second issue of Jacobin back in the spring of 2011, two years into the Obama era and just a few months before Occupy Wall Street sprang up in Zuccotti Park.

The last fifteen years of American politics have only bolstered the case made here: the Constitution is, in fact, “a charter for plutocracy.” And now, upon the 250th anniversary of the Declaration of Independence, we see evidence every single day of its hasty prescription. Despite the egalitarian sentiments that helped propel the American cause to victory in 1783, the Constitution that resulted has been a remarkably relentless barrier to the development of social democracy in the United States. Mass discontent, even when paired with dogged political organization, has long met its match in its pages. In the Gilded Age. In the New Deal era. And, as we all experienced soon after this essay was first published, under Barack Obama as well.

American politics was born in this contradiction — the fieriest of revolutionary discontent yielding only the tiniest of incremental shifts. It’s long been this way. With its abundance of “free” land, its lack of a feudal caste, and its revolutionary origins, the new republic found it impossible to sustain the kind of culture of popular deference to traditional elites that still prevailed in England. Yet the old elite of merchants, planters, and speculators, having played a leading role in the revolution, emerged from the struggle economically intact, socially entrenched, and determined to keep public policy under its control.

This founding contradiction, between a highly stratified political economy and a highly democratic political culture — between a rambunctious, literate, and heavily armed polity that insisted on nothing less than popular sovereignty and a wealthy and resourceful elite with the power to shape events — pushed the ruling class to seek a solution in what Virginia’s Edmund Randolph called “the science of constitutions and confederacies”: the clever design of institutions to retain a facade of democratic rule while insulating policy from popular control.

In the 1780s, as America’s propertied classes warred with its plebeians over who would bear the cost of war debts, political engineering became the obsession of the Founding generation. “Like most other sciences,” wrote Alexander Hamilton, the “science of politics” had made rapid progress in recent years: there were “wholly new discoveries” — such as “the regular distribution of power into distinct departments” and “the introduction of legislative balances and checks” — that “were either not known at all, or imperfectly known to the ancients,” but that now offered “powerful means” to remedy the “imperfections” of republican government.

Behind all these mechanisms lay a single, devious principle: divide and rule. As James Madison, the founding elite’s premier political engineer, baldly admitted in a letter to Thomas Jefferson summarizing the thesis of his Federalist No. 10: “Divide et impera, the reprobated axiom of tyranny, is under certain qualifications, the only policy, by which a republic can be administered on just principles.”

The best remembered of the Madisonian devices, which appear more or less explicitly in the Constitution, are the famous checks and balances and separation of powers: the creation of a plutocratic Senate, a presidential veto, and judicial review, all intended to crimp the power of the democratic House of Representatives, leaving popular majorities unable to obtain changes in national policy without the concurrence of elites. (Of course, the multiple veto points, intended to check popular government, always carried the danger of stymieing any coherent governance at all.)

But there was another avenue for divide-and-rule political engineering that the Framers saw as, if anything, even more potentially effective than the mutual frustration of divided government. This was the principle that came to be called the “extended republic”: in an era when long-distance communication and transportation were difficult, time-consuming, and expensive, expanding the geographical and jurisdictional terrain of politics could give a decisive advantage to the rich, who could better afford the means of political coordination.

It is this legacy of the “extended republic” that haunts us today.

The worldwide revolutionary turmoil of the years just after World War I witnessed the single biggest leap in labor’s long forward march. At least, it did in most places.

But while general strikes were panicking European elites into making sweeping concessions to their working classes, here in America, the Wilson administration was swiftly reprivatizing the economy and dismantling the progressive wartime labor codes — prompting Felix Frankfurter to render a despairing judgment: the United States, he wrote, appeared to be “the most reactionary country in the world.” When the unimpeded rule of the plutocrats was confirmed by Calvin Coolidge’s election six years later, William Howard Taft concluded with satisfaction that Frankfurter had been right: “This country is no country for radicalism. I think it is really the most conservative country in the world.”

But why was that so? There were many theories. The patrician editors of the New York Times had given this matter some thought, and on Constitution Day, 1921, they provided one plausible explanation: “If it is true, as there is much evidence to prove, that Americans are showing themselves the most conservative nation in a turbulent world, the largest cause of it lies in our Federal Constitution.” The Constitution, the editors explained, “makes the American people secure in their individual rights as citizens when these are imperiled by passing gusts of sentiment.”

These dubious “gusts of sentiment,” in the lingo of American constitution-speak, are precisely what other societies call “the democratic will.” It stands to reason that a document drafted by a coterie of gilded gentry, openly contemptuous of “democracy” and panicked by what they saw as the mob rule of the 1780s, would seek to constrict popular sovereignty to the point of strangulation.

Thus, brilliantly and subtly, the system they built rendered it virtually impossible for the electorate to obtain a concerted change in national policy by a collective act of political will. The Senate is an undemocratic monstrosity in which 84 percent of the population can be outvoted by the 16 percent living in the smallest states. The passage of legislation requires the simultaneous assent of three separate entities — the presidency, House, and Senate — that voters are purposely denied the opportunity to choose at one time, with two-thirds of the Senate membership left in place after each election. The illogical Electoral College gears the whole combat of presidential elections around a few almost randomly determined swing states that happen to contain evenly balanced numbers of Democrats and Republicans. And the entire system is frozen in amber by an amendment process of almost comical complexity. Whereas France can change its constitution anytime with a three-fifths vote of its Congress, and Britain could recently mandate a referendum on instant runoff voting with a simple parliamentary majority, an amendment to the US Constitution requires the consent of no less than thirty-nine different legislatures comprising roughly seventy-eight separately elected chambers.

There was a brief moment in US history when these truths were acknowledged by the Left. During the Progressive Era, the Socialist Party branded the Constitution a menace to democratic government, and a number of progressive intellectuals, including Charles A. Beard, Vernon L. Parrington, Carl L. Becker, and J. Allen Smith, lucidly recognized the document’s reactionary constraints and sometimes called for their overthrow.

Beard established a committee on the federal constitution that advocated subordinating the Constitution to popular control, declaring that “the people of the United States have not control over their fundamental law at the present time, save in a minor degree. The consequence is, our institutions do not reflect the popular will, but in reality other forces over which we have only a measure of control.” The Sixteenth and Seventeenth Amendments, authorizing a federal income tax and direct election of senators, were the most enduring (if inadequate) fruits of this period of ferment.

But unfortunately, it was the counterattack that proved far more lasting.

During the 1920s and 1930s, as historian Michael Kammen has demonstrated, constitutionalism “assumed a more central role in American culture than it ever had before,” thanks in large part to “the efflorescence of intensely partisan organizations that promoted patriotic constitutionalism as an antidote to two dreaded nemeses, governmental centralization and socialism.” The National Association for Constitutional Government, the American Legion, the Constitutional Educational League, the National Security League, and the Sentinels of the Republic all came together to “pledge themselves to guard the Constitution and wage war on socialism.” A national Constitution Day was instituted. Local school boards were pressed to further glorify the sacred parchment.

All of this, I would argue, amounted to America’s version of the antidemocratic nationalist populism that was spreading in Europe during the same years. Today’s Tea Party, with its mania for constitutionalism, is the direct heir to this venerable conservative tradition that embraces the Founding Fathers’ masterwork as a bulwark against democratic adventurism — hence the congressional Republicans’ ritual Constitution-reading, and their new rule requiring that specific constitutional authority be cited for each bill. Like Action Française or the anti-republican peasant leagues of Weimar Germany, the Tea Party’s patriotic constitutionalism originated in the 1920s as a conservative reaction against the working-class movements that had surged forward to remake the state into the democratic instrument of popular aspirations.

It’s easy to make fun of the Right’s bizarro Constitution fetish. Glenn Beck’s late guru, the Bircher and Mormon extremist W. Cleon Skousen, is now the main source of the Republicans’ constitutional wisdom; his books like The Naked Communist, once out of print and gathering dust, have become posthumous bestsellers.

In a takedown of Tea Party constitutionalism, Dahlia Lithwick wrote in Slate that “the fact that the Constitution is sufficiently open-ended to infuriate all Americans almost equally is part of its enduring genius.” “It is an integrative force — the cornerstone of our civil religion,” wrote Andrew Romano in Newsweek; but “the Tea Partiers belong to a different tradition — a tradition of divisive fundamentalism.” “The Constitution is ink on parchment,” wrote Jill Lepore in a New Yorker piece (“The Commandments”). “It is forty-four hundred words. And it is, too, the accreted set of meanings that have been made of those words, the amendments, the failed amendments, the struggles, the debates — the course of events — over more than two centuries. It is not easy, but it is everyone’s.” That sounds nice and awfully inclusive, but unfortunately the Constitution is much more than that: it is a charter for plutocracy.