The Constitution is The Problem

A lot of activists across many issues and many generations have embraced the U.S. Constitution for its much-admired Bill of Rights, for the post-Civil War amendments that banned slavery and created “equal protection” for all while also ensuring birthright citizenship, and even the belated extension of voting rights to women a hundred years ago. I’m not writing to attack the worthy aspects of constitutional law that have expanded rights and allowed more breathing space in a society founded on slavery and genocide. But we can’t forget that basic reality: the U.S. Constitution was a document forged in a specific time and political culture that allowed for human slavery and was acutely focused on expansion into indigenous lands. Slavery and genocide were built in from the beginning, and no amount of blather about the magnificence of the Founding Fathers, the brilliance of the Constitution or the political structure of the U.S. government overcomes that.

The current right-wing hysteria over Critical Race Theory is just the latest tempest stirred up to enforce an amnesiac approach to U.S. history that mostly prevailed for two centuries until unraveling rather substantially in the past quarter century. The intellectually vapid, but politically charged effort to discredit Nikole Hannah-Jones and the New York Times’ 1619 Project by creating the widely ridiculed 1776 manifesto failed on launch. But the rabid white supremacist rank-and-file, much larger than any of us want to believe, are fertile ground for truth-denying myths that prop up their fantasies of racial and cultural superiority. Discredited by a wide range of historians and public intellectuals over the past decades, the right-wing self-congratulating version of history won’t go away as long as it provides a unifying narrative to people who see their world slipping away and blame that perceived loss on betrayal by “others” (critical histories quickly become examples of such betrayals). This is the long history of fascism and right-wing demagoguery, played out over and over in the past century. And we are well into the current chapter of this, and perhaps the final chapter of the long-simmering U.S. Civil War, as it unfolds during the 2020s.

But rather than further beating this exhausted (and exhausting) anti-fascist horse, I want to suggest that the nearly religious reverence for the U.S. Constitution is at the root of the strange passivity and political impotence that grips the country here in mid-2021. While the insane millions of right-wing zealots are arming themselves, organizing, demonstrating, publishing, and carrying on their efforts to overthrow the simulacra of democracy, where is the outpouring of grassroots energy defending the right to vote, or our supposedly precious democratic institutions? Where is the public clamor for universal health care, radical reduction and imminent elimination of carbon emissions, generalized rights to equally funded high-quality education, a general right to quality housing, etc.? Where are the strikes for new independent unions and a general doubling of wages? Or the elimination of the wage-system altogether?

Is it all a matter of making donations to the daily deluge of Democratic emails? You might think so if you accept the idea that the best we can hope for is a milquetoast Democratic Party under Biden/Harris to keep the deluge of horror at bay. But even if you don’t believe that drivel, it does seem that a Left opposition is in hibernation, if it can really be said to exist. I think the mobilizations that filled the streets during Trump and earlier in the Bush-Cheney years don’t emerge when there’s a Democrat in office. Do people think that protest will upset the applecart and the wishy-washy liberals will be overrun by the radical right? Or do they think that honest government and real reforms are going to produce meaningful justice and equity? Does anyone believe that? Is that what everyone is waiting for the Biden administration to magically produce?

The mass demonstrations last summer seemed to move the needle towards serious reform of policing, but actually little has been accomplished (Oakland noticeably just moved $18 million from the police budget to violence prevention and other non-police interventions). But mass demonstrations to combat the Republican laws restricting voting rights? Nowhere to be seen. Mass demonstrations to block an expanding military budget? Not only are there not demonstrations, the insanity of expanding the almost $1.3 trillion annual budget for military and security is supported by nearly all politicians. I guess this should be no surprise given the prognostications by Charles Beard I cited in the last post about the post-WWII economy being dependent on ongoing war and war expenditures (“defense” in the sanitized language introduced during the beginning of the Cold War). Mass demonstrations to demand rent cancellation and eviction prevention? Absent such public clamor, the system of representative democracy is barely sputtering along, with the likelihood of progressive legislation passing being snuffed out by the Millionaire’s Club known as the U.S. Senate.

But even if the deck weren’t so completely stacked in favor of the ultra-rich and their corporations, even if a populist electoral wave managed to elevate a majority of social-democrats who were committed to legislatively guaranteeing health care, housing, schooling, and basic human needs for each person, the judicial branch has been carefully taken over during the past 50 years by the same interests who controlled it over most of U.S. history—the defenders of private property and wealth. Since Bush Jr., the Federalist Society has taken over the role once played by the American Bar Association in vetting and approving appointments to federal courts. It’s well established that this private organization of lawyers represents an extremely conservative interpretation of the Constitution. All of Trump’s Supreme Court nominees were hand-picked by the Federalist Society. It might be worth taking a glance back at the inspiration for this organization’s name, which were the arguments made during the original Constitutional Convention in The Federalist, written by James Madison, Alexander Hamilton, and John Jay. After reading about Charles Beard I got curious about his claim that Marx had nothing on the Federalists in terms of laying out an analysis of the capitalist economy. I turned to his slim 1913 volume, An Economic Interpretation of the Constitution of the United States and it was quite helpful.

It’s a bit of a tedious read, since he goes through each member of the constitutional convention at least twice to lay out their personal financial situation and how they came to be part of the body that ultimately passed the Constitution back to the state legislatures for ratification. He summarizes them this way:

The overwhelming majority of members, at least five-sixths, were immediately, directly, and personally interested in the outcome of their labors at Philadelphia, and were to a greater or less extent economic beneficiaries from the adoption of the Constitution.

p. 149

Beard lays out the various interests who the Constitution was carefully constructed to serve and shows how the authors of The Federalist sought to “sell it” to various constituencies:

Indeed, every fundamental appeal in it is to some material and substantial interest. Sometimes it is to the people at large in the name of protection against invading armies and European coalitions. Sometimes it is to the commercial classes whose business is represented as prostrate before the follies of the [Articles of] Confederation. Now it is to the creditors seeking relief against paper money and the assaults of the agrarians in general; now it is to the holders of federal securities which are depreciating toward the vanishing point. But above all, it is to the owners of personalty [property] anxious to find a foil against the attacks of levelling democracy, that the authors of The Federalist address their most cogent arguments in favor of ratification. (emphasis added)

p. 154

As James Madison argues in The Federalist, “the most common and durable source of factions has been the various and unequal distributions of property.” And with this in mind, the urgent concern of the Federalist writers is to ensure that new constitutional order does not permit “an interested and over-bearing majority” to use its democratic powers to attack or seize the property of the few. To that end, “the crowning counterweight … was secured in the peculiar position assigned to the judiciary, and the use of the sanctity and mystery of the law as a foil to democratic attacks.” (emphasis added) In summary, Beard argues, “The Constitution was essentially an economic document based upon the concept that the fundamental private rights of property are anterior to government and morally beyond the reach of popular majorities.”

That was a long time ago, but it turns out that the logic is quite present in our current government. The “sanctity and mystery of the law” is reinforced all the time by all sorts of thinkers across the political spectrum when they refer to the U.S. Constitution as some kind of holy document, something that protects us when it’s actually a document designed for the protection of private property and accumulated wealth (however such wealth may be obtained is not a question for the Constitution). There are plenty of lefty lawyers who hold tight to the Constitution because they saw what kinds of reforms the Supreme Court helped usher in during the Warren Court era, even starting as early as 1938 when the Court stopped blocking all the FDR New Deal programs. But the long history of the Supreme Court and the interpretations of Constitutional law have been far from liberating or progressive. The Dred Scott decision in 1858 denying any rights to African Americans is one egregious example. In an 1897 decision, the U.S. Supreme Court denied merchant seamen protection against involuntary servitude with the argument that the men at sea were deficient in the full capabilities of a normal adult and had to be protected (from themselves?!) in the same way as minors and wards. During the late 19^th century the U.S. Supreme Court went all in on creating the legal environment most conducive the accumulation of private capital. In November 2018 I wrote a long essay on this blog called “Contesting the History of Early American California,” and I’m reposting a few paragraphs and quotes here because they fit so well:

California judge Stephen J. Field was a chief architect of th[e] transposition of the legal regime created by the post-Civil War efforts to broaden constitutional rights. He applied the fourteenth amendment’s equal protection clause to the needs of corporations, helping to usher in the mysterious legal equivalence of corporations and personhood in a series of decisions in the 1880s. By the 1890s, courts were being used to undermine democratic decisions that promoted social well-being at the expense of corporate profits. Richard White describes it best:

Field and other liberal judges appropriated the democratic language of Jacksonianism, which had sought to protect the many from the few, and turned it into a legal vocabulary that protected the few from the many. Turning people into commodities was impermissible, but turning people’s labor into a commodity—a piece of property to be bought and sold—was the source of progress. Freedom became the protection of property. Rarely has a minority opinion been so influential.

p. 812

By rendering freedom as the ability to dispose of “property”—either labor or capital—liberal judges cast restraints on property as potential attacks on freedom. Depending on the judge or the circumstances, anything that restricted contract freedom—whether licensing laws, certain kinds of public health regulations, strikes, boycotts, or the closed shops—became the legal equivalents of slavery. Such restrictions violated either the rights of workers to pursue a calling or the freedom of citizens to use property as they saw fit. Old protections against seizure of property without due process morphed into the “right” of capital to a fair expected return on investment.

p. 814

This new legal regime was used repeatedly in the late 19th century to block social legislation that emerged in state and national governments. Regulatory legislation that curtailed sweatshops, required wages to be paid in cash rather than company scrip, mandated shorter workdays, provided various health and safety requirements, and much else, were systematically blocked by the courts. According to White, more than sixty labor laws were struck down between 1880 and 1900.

By the 1890s liberal judges’ expansive approach to the law had achieved breathtaking reach. By embracing classic economic theory, they applied the doctrine of substantive due process to enshrine a set of economic laws that no democratic government could overturn; they transformed metaphorical natural law into a body of actual law created by the judiciary. They treated freedom of contract, open competition, and laissez-faire as part of the Constitution. Judges justified their legal opinions by citing the laws of nature and the “laws” of the market, although neither was to be found on the statue books or in common law.

p. 815

It turns out that this kind of judicial activism in favor of wealth and private property is in the driver’s seat of today’s Supreme Court too. And it’s not an accident but a systematic process that led to the taking over of the court (and away from the “frightening” liberalism of the Warren Court) that began in earnest as soon as Richard Nixon became president in 1969. Adam Cohen’s sweeping book Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America (Penguin Press, New York: 2020) tells the story with clarity and detail. I won’t go in to the parts about how Nixon drove liberals from the Court and managed to get 4 new justices seated before he resigned the presidency in disgrace, but that began a half century of conservative control that has not been interrupted since 1970. The extent to which today’s Court is making up law to suit the class interests it is dedicated to protecting is stated clearly towards the end of Cohen’s excellent and highly readable book:

The Court also eroded the voice that poor and middle-class people had over government—what little was left after it threw open the floodgates of special-interest money. The same Court that would not allow Congress to limit political spending gave its endorsement to voter ID laws that were designed to suppress the votes of poor people and racial minorities, voting roll purges that disenfranchised eligible voters, and partisan gerrymanders that were intended to make the voters as irrelevant to the election process as possible. While the Court gave its blessing to all of these, it removed the heart of the Voting Rights Act—one of the crowning achievements of the civil rights movement, which had been repeatedly reauthorized by large bipartisan majorities in Congress and signed into law by presidents of both parties—by invoking a purported constitutional doctrine that it all but made up.

p. 312

Cohen’s book usefully organizes his analysis of the Supreme Court’s long march to the grossly unequal society that we somehow accept as normal today into a series of chapters covering poverty, education, campaign finance, democracy, workers rights, corporate rights, and criminal justice. For Cohen and probably many other liberal legal eagles, the Supreme Court in the late 1960s seemed to be on the cusp of granting rights to poor people that would have given legal foundation for a robust social democratic safety net. But after Nixon won the 1968 election and LBJ’s nominees for Chief Justice were defeated, the Burger Court began to undo the work of the previous Warren Court. An early example was with regard to housing, when an Oregon family living in a house with broken windows, missing back steps, open wires in the child’s bedroom, and numerous other defects began withholding rent from their recalcitrant landlord. Oregon had a state law that prevented the tenants from raising the landlord’s refusal to maintain the property as a defense against eviction for unpaid rent. The Supreme Court upheld that law and ultimately Justice Byron White writing for the majority said that “We do not denigrate the importance of decent, safe, and sanitary housing, but the Constitution does not provide judicial remedies for every social and economic ill.”

Lewis Powell was nominated by Nixon to sit on the Supreme Court and after he was confirmed a secret memo he wrote in 1971 to the U.S. Chamber of Commerce came to light.

In “Attack on American Free Enterprise System,” Powell wrote that American capitalism was under assault, not only from radicals but from “perfectly respectable elements of society,” including the media, universities, organized religion—and the courts. The judiciary could be the “most important instrument for social, economic and political change,” he advised, “especially with an activist-minded Supreme Court.” Powell said that groups ranging “from ‘liberal’ to the far left” had been “perhaps the most active exploiters of the judicial system.” He urged big business to use the courts in a similar way to promote its own agenda.

p. 101

And of course that’s what Powell and the other new justices have done ever since. One of the earliest decisions Powell participated in in 1973 was to uphold the Texas school finance system that allowed rich suburban districts to exist alongside impoverished urban districts. “It was, [Powell] said, a matter of ‘assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.’” A key part of the argument they relied on was the claim that people had a right to “local control.” They made a similar decision a few years later in a Detroit case, again embracing the right of wealthy white suburbs to maintain “local control” over their schools and their financing, leaving the impoverished African American students in Detroit’s starving schools to languish. Then in 2007 it went even further when it decided that voluntary desegregation programs in Seattle and Louisville (KY) were unconstitutional. This time the federal Supreme Court took away local control from two municipalities when new Chief Justice John Roberts declared that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” So much for local control!

Cohen does a fine job of detailing the contradictory arguments used by the Supreme Court to open the floodgates to unlimited money in politics. They give First Amendment freedom of speech to inanimate corporations while rendering impossible the actual ability of most people to speak meaningfully in the public sphere. A recent decision to eliminate the closed shop among public employees known as Janus fits “neatly into a partisan pattern going back to Bush v. Gore. The conservative justices stopped the vote counting in Florida; struck down campaign finance restrictions, including the prohibition on corporate spending on elections; upheld strict voter ID laws and aggressive voter roll purges; invalidated a key part of the Voting Rights Act; rejected challenges to partisan gerrymandering; and now, voted to defund public-sector unions. All of these rulings greatly helped the electoral chances of Republican candidates.” (p. 220) Which in turn makes sure that Republicans will continue to control who gets appointed to the courts in a virtuous cycle of self-help by the plutocrats.

Further supporting their class patrons and sponsors, justices have shown themselves to be blatantly biased when it comes to how they treat crimes:

Just one month after affirming Andrade’s sentence, the Court would overturn the $145 million punitive damages award against State Farm for egregiously deceiving and mistreating a customer. In that case, it would say that punitive damage award any larger than $9 million would likely be unconstitutional.

The Court had two very different ideas about proportionality of punishment: one for corporations under the Fourteenth Amendment Due Process Clause and another for people under the Eighth Amendment. The Due Process Clause, it said, did not allow a jury to punish one of the world’s wealthiest companies with a punitive damages award of $145 million, which was equal to 0.29 percent of its annual revenue—barely enough to get the attention of the company’s leadership. The Eighth Amendment did, however, allow California to put a thirty-seven-year-old Army veteran and father who engaged in minor shoplifting behind bars until he was at least eight-seven.

p. 290

In another example of conservative justices inventing new law, Cohen offers the example of a guy who was censured by the Securities and Exchange Commission for insider trading, but was exonerated by a 6-3 reversal at the Supreme Court.

Powell, writing for himself, Burger, O’Connor, White, Rehnquist, and Stevens, said that Dirks was not liable because he had not personally profited from the insider information—even though he gave it to clients of his who did. In dissent, Blackmun, writing for himself, Brennan, and Marshall, said that Dirk had clearly violated the Securities Act. The majority had simply invented a new rule, he said, that to be convicted of insider trading a person must have acted “from a motive of personal gain.” The majority then used this “innovation” in the law, Blackmun said, to acquit Dirks even though he clearly violated the law.

p. 299

Cohen goes on to cite an analysis done by J. Kelly Strader called “The Judicial Politics of White Collar Crime” that analyzed the justices’ votes over a 24-year period:

For some justices, the evidence was particularly stark. Scalia voted for defendants in fewer than 7 percent of non-white-collar criminal cases and nearly 82 percent of white-collar cases. Rehnquist voted for the defendant in just over 8 percent of non-white-collar criminal cases and almost 62 percent of white-collar ones.

p. 301

Cohen concludes with the ominous observation that the Supreme Court’s overwhelming bias against poor and working-class people as demonstrated in case after case for 50 years is creating the legal tools for operating a prison state. Clearly we are well inside that already, especially if you are poor or African American or Latinx.

As I wrote a little over two years ago,

The current successful campaign by the reactionary Federalist Society to pack the courts under Trump with right-wing ideologues has a strong corollary in the original Gilded Era’s activist courts. It is ironic that the right-wing campaign to take over the judicial branch of government began with claims that liberal judges were “activists” who were inventing legal rights and not sticking to the original intent of the Constitution. But it was the pro-capitalist judges of the late nineteenth century who were the original activist judges, inventing legal precedents that still constrain us today. Corporations and the wealthy who control them, along with their political enablers, have built an edifice that will have to be taken down if we have any hope of altering the course of history.

The fantasy that the current government can be turned into a vehicle of social advance must be abandoned. The endless distraction provided by treating the Constitution and “democracy” as somehow sacrosanct is part of the poverty of imagination that besets radical politics. Aren’t we at the point where we have to completely rethink and redesign how we organize ourselves, how we go about choosing what technologies to use and to what ends, and what a real democracy might look and feel like? What are the seeds of this new legitimate democratic life? Where do we practice this and how can we grow from those seeds into a diverse social movement that can finally overthrow the dictatorship of money and militarism?