The anti-democratic character of the U.S. constitution

If there is one part of what might be called the U.S.’s “civic religion” on which liberals and conservatives agree, it’s the fundamental importance of the U.S. Constitution, passed in 1787. Perhaps that’s understandable, given that the constitution lays out the blueprint of the government that has remained largely intact since.

But when figures as disparate as Sen. Bernie Sanders or Sen. Ted Cruz wax on about the Constitution, it’s clear that the 18^th century document has taken on the aspect of scripture, as if it was written on stone tablets handed down from the Framers. Nothing could be further from the truth.

In reality, the U.S. Constitution emerged from grubby political machinations through which the post-revolutionary elite aimed to consolidate its rule over the state.

The U.S. Declaration of Independence from Britain in 1776 uses some radical language: “all men are created equal”; governments derive “just powers from the consent of the governed”; “the right of the people to alter or to abolish” government, and so on. The colonial elite used this sort of rhetoric to mobilize the broader mass of the population to cast their lot with independence from Britain.

But the founders, mostly drawn from the leading merchants and plantation owners, weren’t about to turn their newly independent state over to artisans and farmers. One of the most class conscious of them, Alexander Hamilton, the first treasury secretary and main writer of the Federalist Papers, a series of popular essays justifying the Constitution, put it succinctly: “that power that holds the purse strings absolutely must rule.”

They chose as their target the national government under the 1777 Articles of Confederation that held the republic together as a compact between the 13 states. Under the Articles, the national government had no authority to raise taxes. It depended on the unanimous agreement of each state legislature to decide any policy.

Bankers and other wealthy holders of public securities, who loaned money to the new government, clamored for a strong central government with the taxing powers to repay their loans. They looked to a stronger military which could protect American commerce from British marauders. And they desired a uniform national set of tariffs which could aid a young American capitalism.

In September 1786. delegates from five state legislatures met in Annapolis. Md., to discuss the USA’s economic problems. It was clear, however, that for some of them—like Virginia slaveholder James Madison and Hamilton—more was at stake than simply tariff regulations. They issued a call for a meeting of state delegates in Philadelphia for the following spring, with the intent of proposing amendments to the Articles of Confederation.

When the delegation of 55—most of them merchants, finance capitalists, slaveholders and landlords—met in secret in May 1787, Madison proposed a set of “amendments” to the Articles whose effect was the scrapping of the Articles altogether. Throughout the summer. Madison’s proposals for a strong executive, a two-house legislature, the submission of the state governments to the federal government, and the like set the terms of debate. Hamilton proposed a plan that went further than Madison’s. It argued for the imposition of a monarch elected for life!

The structure of the government is set up to fragment power, with two houses of Congress, elected at different times, for different terms. With powers divided between localities, states, and the federal government. With power divided between executive, legislative and judicial branches. All of this aimed, as Madison put it in Federalist #10 to guard against, among other things, “A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project.”

Left unsaid here was the key “improper or wicked project” that ultimately amounted to the largest expropriation of wealth in U.S. history: the abolition of slavery. Madison, of course, hailed from the Virginia elite whose economic and political power was based on chattel slavery.

Throughout the summer of 1787, the delegates arrived at compromises that helped to patch together agreement on the new government. The most rotten of these was the so-called ”three-fifths·compromise” devising a method of representing the Southern slave states in the House of Representatives by counting each slave as three-fifths of a person. Since slaves had no right to vote, this just added to the voting power of the slaveowners. In return, the Constitution gave special protection to the institution of slavery.

Amidst all the horse trading between the delegations, the Framers agreed on the need for a strong state to curb the democratic “excesses” of the mass of the population. Madison warned the delegates, “In future times, a great majority of the people will not only be without land, but any sort of property.” Thus, he said, a government blocking the ability of the majority to expropriate the propertied minority, was necessary.

The convention’s finished product, the U.S. Constitution. included clause after clause that limited even formal bourgeois democracy: the six-year term for senators appointed by state legislatures, the Electoral College for choosing the president, the lifetime appointment of judges. Only one part of the government, the House of Representatives, was to be open to direct popular vote. And due to the various limitations on voting rights based on property ownership that existed in the various states, the denial of voting rights to women and most non-whites, most ordinary Americans had virtually no ability to influence this “most democratic” of governments.

By the standards of accepted government practice, the Framers’ meeting was illegal. The delegates not only disregarded their charge to simply propose amendments to the Articles, but also, they ignored the amendment procedures the Articles themselves laid out. When the convention document, the U.S. Constitution, was presented to Congress in September 1787 for submission to the state legislatures, it appeared as an accomplished fact that the Confederation was finished.

The states approved the new document over the next year, but only after Constitution supporters promised a “Bill of Rights” to spell out some limitations on the encroachment of the new government on individual civil rights and liberties.

Today, when most Americans think of the Constitution’s most important parts, they think of the 10 amendments in the Bill of Rights codifying freedom of speech or religion, or the right to own firearms. But the Framers considered the Bill of Rights as a secondary feature of the document, added only to dampen opposition to it.

In the first years under the new Constitution, the new ruling class consolidated its hold on state power and enacted laws organizing a national banking system, investments in canals and roads and protective tariffs aimed at establishing a modern capitalist economy. Moreover, the strong state under the new constitution provided for the armed force that the ruling class desired for “stability.”

With the eruption of the Whiskey Rebellion, a 1794 insurrection of Western Pennsylvania farmers against taxation, supporters of the Constitution looked to the national government’s response as a test of the Constitution’s strength. The new government did not disappoint its ruling-class backers. It launched a huge invasion force to crush the rebellion decisively.

The Constitution the Framers envisioned preserved the rotten class and racial status quo. For many antebellum abolitionists, such as William Lloyd Garrison, the 1787 constitution was “a covenant with death” and “an agreement with hell” because it protected slavery and preserved the political power of the Southern slaveocracy.

This arrangement collapsed when the election of President Abraham Lincoln precipitated the secession of the southern states and the 1861-1865 Civil War. The Confederacy’s defeat presented the victorious Union with an opportunity to “reconstruct” the state and to enfranchise millions of the formerly enslaved.

The Radical Republicans, the members of Lincoln’s party most committed to a democratic reconstruction of the state, alongside millions of African Americans, spearheaded passage of 13^th, 14^th and 15^th Amendments to the Constitution.

These amendments, in turn, outlawed chattel slavery, established citizenship for all persons born in the U.S., guaranteed “equal protection of the laws,” and barred racial discrimination in voting rights. These “Reconstruction amendments” amounted to what the historian Eric Foner called the U.S.’s “second founding”:

The whole question of what is citizenship, who is a citizen and what rights come along with it – that was central to the political conflict in Reconstruction. And these amendments are the effort of the Republican Congress, and indeed of African Americans themselves, to put into the Constitution the basic idea of equality for all Americans. It’s important to remember that ideal didn’t exist before the Civil War. Remember, the Dred Scott decision, 1857, said no black person can be a citizen. Only white people can be citizens of the United States.

This was a country with strong belief in liberty but with a strong racial barrier excluding nonwhites from enjoyment of many of those liberties. And so Reconstruction is an effort to shatter those boundaries and to create a new – really, a new republic. I mean, that’s why I call it the “Second Founding.” It really transforms the Constitution, not just adding a few things here and there, you know, to try to implement this principle of equal rights for all Americans.

Reconstruction lasted until 1877. It marked the U.S.’s first experience with some form of multi-racial democracy. But a concerted campaign of white supremacist terror and the national government’s retreat from enforcing civil rights led to the era of Jim Crow. For almost a century, the federal and state governments, the Supreme Court, and the Republican and Democratic Parties collaborated to neuter the egalitarian and democratic aspirations that the Reconstruction Amendments represented.

Only the 1950s/1960s movements for civil rights, women’s rights and LBGTQ rights pushed the government to affirm and enforce civil rights through legislation such as the 1964 Civil Rights Act (CRA) and the 1965 Voting Rights Act (VRA).

As the just-concluded Supreme Court term showed, the conservative supermajority is moving to deconstruct the “civil rights state” that emerged from the 1960s. Decisions eviscerating the VRA or ruling that that the CRA doesn’t apply to transpeople—to take two examples of many egregious recent decisions—illustrates that. And the fact that only a bare majority of justices could affirm the constitutionality of “birthright citizenship,” despite the 14^th Amendment’s crystal-clear language establishing it, shows that Trump and the Supreme Court majority want to return U.S. constitutional law to the time before the “second founding”.

Throughout U.S. history, conservative and reactionary forces have taken advantage of the perfectly legal ways that the Constitution allows political minorities to veto or derail the popular will. That was how the Jim Crow Democrats maintained their control over the South and the federal government for a century. It’s how the loser of the popular vote became president five times, including twice in the last quarter century.

Today, the most reactionary elements in the U.S.—housed in the Republican Party—are using many of the Dixiecrats’ “states’ rights” tactics and anti-democratic court decisions to win in policy what they clearly cannot win in the “court of public opinion”. And the “court of public opinion” is such because the social movements of the 1960s pushed the creaky U.S. political system to respond to them.

The liberal side of the U.S. political elite and its followers in the broader populace mistook the brief period (roughly from the mid-1950s to the mid-1970s) when the Supreme Court supported civil rights reforms as the way things were supposed to be. That discounts the entire history of the Supreme Court, which has always been the most reactionary section of the U.S. government.

But the idea that the Supreme Court dispensed justice flowing from the Constitution allowed liberals to duck fights to defend the rights that the Court seemed to have assured. If anyone wants to know why the Democrats and liberals seemed to be so unprepared for the long-foretold 2022 Dobbs decision overturning the federal right to abortion, a good place to start is in the ideological disarmament that liberals’ trust in the Court and “the Constitution” fostered.

If this history of the Constitution and ordinary peoples’ rights shows anything, it’s that the Constitution isn’t some holy document whose “truth” can be discovered the way religious leaders cite verses from the Bible, the Talmud or the Quran. What the constitution legally enables or forbids is forged through class and political struggle. Even the most enlightened words on a page are not self-executing.

The rights that workers and the oppressed have won depended not on their reliance on the Constitution, but on their willingness to fight against bosses and politicians who often hid behind the Constitution to protect their power. The great peoples’ historian Howard Zinn put it well:

The Constitution gave no rights to working people; no right to work less than 12 hours a day, no right to a living wage, no right to safe working conditions. Workers had to organize, go on strike, defy the law, the courts, the police, create a great movement which won the eight-hour day, and caused such commotion that Congress was forced to pass a minimum wage law, and Social Security, and unemployment insurance…. Those rights only come alive when citizens organize, protest, demonstrate, strike, boycott, rebel and violate the law in order to uphold justice.

A version of this article also appeared in Red Flag (Australia).