The Constitution and the European Founding PDF

CHAPTER 6: the CONSTITUTION and the EUROPEAN FOUNDING motivations, principles, and context  “The American Constitution guarantees the American people pretty much anything that they want. If I have a disappointment, it is that they really don't seem to want much of any...

CHAPTER 6: the CONSTITUTION and the EUROPEAN FOUNDING motivations, principles, and context  “The American Constitution guarantees the American people pretty much anything that they want. If I have a disappointment, it is that they really don't seem to want much of anything at all.” Eugene Debs (labor activist) “Is the aim of the government simply to maintain order? Or does government have some special interest in maintaining a certain kind of order?” Howard Zinn (author, teacher, activist) “Do not separate text from historical background.” James Madison (one of the primary authors of the constitution) So that graphic on the title page is pretty funny, right? Hello, is anyone here? What, is it opening day for the Tigers, or something? (sigh) Whatever, let’s get started. The US Constitution can be thought of as the contract between citizens and government. It is the nation’s primary legal document. It establishes the structure of government, outlines what government (both federal and state) can and can’t do, and restricts the power of government to deny certain rights of individuals. There is probably no document of European American history as revered as the Constitution. It is a historical document, but it is also a contemporary document, as it continues to provide the foundation for how much of our society, politics, culture, and economy function and evolve. And yet there are also few documents as misunderstood. The satirical newspaper The Onion had an article a few years ago titled “Area Man is Passionate Defender of What He Imagines Constitution to Be.”1 In the article, a man expresses support for several non-existent constitutional principles, such as “one nation under god,” and his concern that so many Americans just don’t understand this critical document. It’s a pretty funny piece, because it’s kind of true. When asked, most people in the US express great respect for the Constitution, yet many of us lack a basic understanding of the document, its historical context, its key principles, or what they mean when applied to everyday life.2 With the Constitution, as with so many other things, it is hard for us to separate feeling from fact, and myth from reality. I hope this chapter helps us gain some clarity about this document, the political, social economic context in which it was drafted, and what it means for us today as citizens. Remember, in this chapter we’re focusing on the unamended Constitution. The Bill of Rights (what we call the first 10 amendments) and subsequent amendments will be discussed in the chapters on the Bill of Rights and Civil Rights. 2  OBJECTIVES: AFTER READING THIS CHAPTER, WE HOPE TO... Understand the framers’ motivations for the Constitution: the protection of wealth and property, fear of “excessive” democracy, broader economic and military concerns, and particularly the centrality of enslavement; Identify, understand, and define the major principles contained in the Constitution, including separation of powers, checks and balances, and federalism; Understand the Constitution was written to last; the framers recognized the need for change and their end product was a flexible, organic document that has evolved over time in its meaning and impact. Be able to tell my loveable but annoying uncle why he is wrong about the Constitution at our next family gathering. That’s better than gold!! ALL GOOD THINGS BEGIN WITH HISTORY! Okay, that might not be true. I should have said metal, or coffee. Anyway, it’s a good idea to examine the various conditions in the colonies before the revolutionary war, and in the decade following the war under the first form of government in the newly independent US, the Articles of Confederation. If we’re going to better understand the Constitution, we should take the advice of James Madison to heart (one of the primary authors of the Constitution, quoted up on page 2), and understand the social and political conditions in which it was debated and drafted. A couple of important points before we begin… First, you’ll notice I use the term “framers” instead of the more common “founding fathers” when describing the people who debated and drafted the Constitution. I never liked the phrase “founding fathers.” For most of us, these were not our actual ancestors or forefathers. And the few democratic protections they included in the Constitution were not intended to apply to most of us. Also, there were many responsible for ratification of the Constitution beyond the fifty-five people who debated and signed it – like those who advocated for greater protections of individual rights and due process to be included. And to me, the phrase feels uncomfortably authoritarian. It’s like I’m expected to worship these people in some way, like gods. The people who debated and wrote the constitution were intelligent – the document itself is proof of that – and all the evidence I’ve seen shows they believed what they were doing was right. Some of them were also probably nice people, and I hear Ben Franklin was a riot. But they were also mortal human beings, with particular and selfish interests, and moral and ethical flaws, shaped by the prejudices, culture, and class expectations of their time - just like all of us. So I think we do a disservice to them and our democracy to pretend otherwise. Second, I wanna recognize that the history we’re talking about in this chapter is very narrow, and focused primarily on the experiences of elite European (white) males at this time. The European-American struggle for freedom from Great Britain, the debates on how to structure the new government, and all the political struggles that followed, took place on land that was 3 stolen from its original inhabitants – land that was taken by murder, violence, enslavement, displacement, disease, and deceit. The diverse communities of indigenous people in what would become the United States had no role in determining the future of the land their people had lived on, developed, and cared for over thousands of years. Their resistance to European invasion and settlement failed. So did their good faith efforts at negotiating treaties, because every treaty (over 500 of them) was violated by the US government. And there was never any intention for indigenous persons, their interests and values, or their understanding of community, earth, and spirit, to ever shape the future of this country. Most European settlers, including the framers of the Constitution, assumed the remaining indigenous peoples would be relocated, enslaved, or eliminated. So the European struggle for “freedom” in the United States takes place at the expense of the freedom and dignity – indeed, the very lives – of millions of people. The word genocide – the deliberate and systematic destruction of people based on ethnicity, sex, race, class, religion, or nationality – should never be used lightly. But given the history, it definitely applies to the long-term European conquest of what they would call “the Americas.” The European struggle for freedom in the American colonies seems noble to us, as do the principles and ideas upon which that struggle for self-determination was based. Yet that struggle, and those principles, must be examined in the context of the beliefs, actions, and behavior of the colonizers. And the irony is that in many important ways, the colonists behaved very much like the imperial power (Britain) from which they struggled to free themselves. “TYRANNY IS TYRANNY...” Before the revolutionary war against Great Britain, the American colonies endured years of violent class conflict, which increased dramatically in the years before the American colonists declared independence from Britain. Across the colonies, wealth inequality, poverty, enslavement, and regressive taxes3 inspired many rebellions and uprisings, directed against the British as well as the ruling colonial elite – the wealthy and politically-connected colonists tasked with carrying out British interests in the colonies. Let’s clarify what colonialism means. Under British control the 13 states were called “colonies.” The system under which they existed was colonialism: a system of domination and suppression in which a foreign power – the monarchy of Great Britain, in this case – rules the people of another country in order to profit from their labor and the land’s resources, and to open up new “markets” for the sale of goods produced by the foreign power. Colonialism is typically a brutal, inhumane existence, especially for the indigenous and poor people of the land in question. 4 In the 13 colonies, Britain (and other imperial powers) saw incredible opportunities for access to natural resources and labor, to further grow British industries and enrich Britain’s ruling and commercial elite. Many of the first colonial settlements in the Americas began as charters of European and British corporations with funding from different monarchies (a charter is an arrangement where certain legal rights and privileges are granted to a group, body, or organization). As always happens with colonialism, British authorities in the colonies increasingly asserted their power arbitrarily, and with more violence and repression. Discontent grew among the white colonists, along with organizing around questions of political, social, and economic control, and a movement slowly grew in favor of independence. An important factor in moving those white elites to favor independence were the restrictions the British monarchy placed on them. White elites were eager to own more land to profit from land sales, development, and speculation. That meant taking more land from indigenous communities and tribes, but the monarchy prohibited this, in part because it had just finished a very costly war and didn’t want to start unnecessary wars/battles elsewhere. And to pay the debts of that war, they were also raising taxes, which white colonial elites opposed, though they did not come around to support independence until their appeals to the King proved fruitless. Those members of the colonial elite who eventually supported independence from Britain faced the difficult task of controlling the wider, popular, class-based outrage that existed in the colonies. How do you direct the people’s anger toward British rule, and away from privilege and wealth in general? In other words, how do you shift popular anger away from class (against all elites) to anger based on nationalism (against just British elites)? With both skill and luck, they were able to direct the anger of many white colonists towards the British monarchy, with the promise that when the source of the people’s misery and poverty (Britain) was defeated, their lives would improve. Yet the colonial elite were never fully successful, as protests against them continued during and after the war. For example, in Boston, the site of many anti-British uprisings of poor farmers before the revolution, the town’s Committee of Correspondence ordered all the men in town to gather in the public square for a military draft. This was four days after the public reading of the Declaration of Independence in the same square. When the men arrived, they learned the town’s rich men could avoid the draft by paying for substitutes. The poor didn’t have that option – they were required to serve. Learning this, the men began to riot, shouting: "Tyranny is tyranny, let it come from whom it may!" The US revolutionary war was long, hard, and divisive. It was estimated that 1/3 of the public supported independence, 1/3 supported Great Britain, and 1/3 were neutral. Also, about 25% of the Continental army troops (those fighting for independence) were estimated to be treasonous or deserters. Still, the British were eventually defeated, and the work of governing the new nation began under its first governing document: the Articles of Confederation. 5 THE ARTICLES OF CONFEDERATION The Articles of Confederation created a governing system in which states (the former colonies) held the most power, with a weak national government. This reflected the political power of the states as independent entities at the time, and the belief among many that a system featuring a weak national government and strong state governments would better protect individuals from the kind of tyranny typical of British rule. How did this look? Under the Article, states could coin their own money, tax imports and exports, and form trade or military alliances with other states, or even other countries. Each state, regardless of its geographic size or population, had the same representation in the national government, yet the national government had no power to enforce any laws it might pass. This system reflected the common idea that people were loyal to their states, not the nation. Even with the victory over the British, very few thought of themselves as “Americans” at this time. People were New Yorkers, or Virginians, etc. Their allegiance - beyond themselves, their religious communities, and their families - was to their state, not the nation. Very soon, many people serving in the new national government under the Articles of Confederation became concerned the new nation would not last without a strong central government. Some, like James Madison, Alexander Hamilton, and John Jay, shared a vision of the US as a powerful nation, with a modern market economy and expanded borders, rivaling the military strength of other imperial and colonial powers of the day.4 Such a future seemed impossible with a powerless national government unable to govern what were essentially thirteen independent nations. Here were some of the most pressing problems these bros identified: The Congress under the Articles of Confederation had no enforcement power when it came to the actions of the separate states and their compliance with national laws. The national government could pass laws, but could not force individual states to comply. So laws passed in the national interest were difficult to achieve and enforce. Taxation was left to state governments, but most refused to tax their citizens in order to fund the national government. So financial difficulties faced by the new government in the aftermath of the war (such as high national debt) could not be addressed. 6  Regarding foreign enemies, primarily Britain, many elites were concerned over the nation’s weakened military position. No national army existed, and state militias were considered unreliable. Also, nothing prevented individual states from making treaties – military or economic - with other nations, against the interests of the other states or of the whole nation. Monetary instability: each state coined its own money, regulated its value, and debts, separately. There was no national currency, or system of regulation, and given the weakness of the national government, states would likely have ignored them anyway. Related to this, commercial chaos arose from the inability of the new government to regulate commerce and trade. This was aggravated by the fact that the states taxed each other’s goods, and there was also no national standard for weights and measures. Under British rule, white merchants and craftsmen living in the American colonies were allowed to operate on a very small scale, but never to the point where they harmed the interests of British merchants. Few were allowed to expand trade beyond their local communities. So for the shoemaker trying to grow a business – or anyone who saw the promise of industrialization on a regional or national scale – the Articles of Confederation were not much different from living under colonialism, at least from an economic perspective. 7  As you can see, many of these problems had to do with a government structure that hindered the development of capitalism (as it was understood then). Related to this, the period following the revolutionary war was one of civil disorder, largely rooted in continued economic inequality. Among European colonists, this disorder was a continuation of the violent class conflict that had existed for years before the revolutionary war, as discussed above. There were also uprisings and rebellions by enslaved people, and continued resistance by indigenous people and tribes. For example, after the revolutionary war against the British, many soldiers returned home in debt, with their farms and property in disrepair or ruin. When state governments began raising taxes on these farmers to pay back the wealthy elites who helped fund the revolutionary war, the farmers (most of whom were veterans) began rebelling. One of the most important of these rebellions - especially for the people who would soon meet to draft the new constitution - took place in Massachusetts. Shays’ Rebellion, led by revolutionary war veteran Daniel Shays and others, was one of many uprisings led by poor white farmers who returned home from war facing financial crisis. Daniel Shays had been wounded in the war, and like many veterans he had not been paid for his military service. Farmers and veterans were being summoned to court for unpaid debts, and threatened with jail or foreclosure. Farmers like Shays pressured the state legislature to issue paper money and other measures that would make it easier to pay debts. But the Massachusetts legislature was dominated by wealthy merchants and lenders who would lose money under such proposals. When the legislature and governor imposed regressive taxes against poor farmers to pay off foreign debts from the war, Shays and others took direct action: getting weapons and preventing state courts, where judges were ruling on evictions and land seizures, from being in session. The rebellion was eventually put down. But James Madison saw this event as a warning that the national government must be able to defend property interests against such factions, and suppress local uprisings before they turned into larger regional rebellions. And so, on one lovely May morning in Philadelphia… 8 THE FRAMERS OF THE CONSTITUTION: THE “MORE CAPABLE SET OF MEN” When the framers gathered in Philadelphia in May 1787, the meeting was originally planned for delegates from various states to discuss and debate reforms to the Articles of Confederation. The members of what would be called the Constitutional Convention, however, quickly shifted the focus of the meeting to debating and drafting a whole new system of government. In a way, we can think of the constitutional convention as a kind of counter-revolution (which is common in nations following successful revolutions), though this was quieter and without the bloodshed typical of many counter-revolutions. It goes something like this: revolutions are often motivated by democratic, often radical, visions of a new society. But in the months and years following the successful overthrow of the old system, a more authoritarian group often seeks power with the goal of limiting the more radical and democratic elements of the revolution, and moving back toward authoritarianism. This occurred (to different degrees) after the French revolution, the Russian revolution in the early 20th century, and the Iranian revolution in 1979, among others. While each of these revolutions/counter-revolutions had different factors and circumstances, we can look at the drafting of the US Constitution in a similar way. In Chapter 2, we briefly discussed Madison’s concerns about ‘too much’ democracy - on needing “a republican remedy for the diseases most incident [common] to republican government”. It’s worth exploring this a bit more, especially considering current conditions in the United States: income and wealth inequality is greater than at any time since the 1920s; public confidence in US economic and political systems is at its lowest point in decades. In fact, levels of trust for government institutions and processes (courts, elections, etc.) are at their lowest point probably since we started measuring; economic and social mobility is decreasing for more and more Americans since the 1970s; working people are politically weaker than at any time since the late 1920s; the wealthy exert greater and greater control over both federal and state political systems; political efficacy (peoples’ belief in our ability to influence government, to address our problems through political action) is low; the US has a political culture of opposition and division not seen since the late 1960s and early 1970s; perhaps even since the Civil War. It’s tempting for many of us to look at our current reality, and think the framers of the constitution would be dismayed at the state of our nation today. Maybe they would, maybe not. I’m not a fan of trying to imagine what dead people from over two centuries ago would think of the country today. I mean, the 1920s would have blown their minds. I can’t imagine what today would look like to them. But as we’ll explore now, our system of government, as envisioned and designed by the constitution’s framers, was not based on the principles of democracy as discussed in Chapter 2. 9 The delegates to the constitutional convention were elites, and some were more elite than others. Many held office in the British colonial governments, and most were merchants, large landowners, or professionals of some kind. Almost half (25) personally enslaved other persons. They generally did not favor government by the masses, and most of them feared democracy. As John Jay famously remarked, “the people who own the country should govern it.” At the convention, James Madison said “the purpose of government is to protect the minority of the opulent [wealthy] against the majority [the general public]”. Their comments reflect those of the influential philosopher Adam Smith, who said government was "instituted for the defense of the rich against the poor.” This might sound strange. We generally think democracy and private property are mutually supportive ideas, but most of the framers saw them in conflict. Madison said that people “without property, or the hope of acquiring it, cannot be expected to sympathize sufficiently with its rights.”5 And he was afraid of what those people without property would do if they had real political power. Check it out: according to Madison, if a democratic system were established where all people had the right to vote, it would be hard to protect property and wealth. Great Britain was the model for democracy at the time, and at the convention Madison said if all men in Great Britain had the right to vote – which fortunately they didn’t, he noted – they would use their political power to call for “agrarian reform”: a redistribution of land and property. Property rights and wealth would be under attack, Madison said, and he warned the “rights of property” in the US had to be protected against such injustice. And when we consider the state of land distribution during that period, Madison’s concerns made sense. For example, at the time of the constitutional convention, less than 12 people owned about 3/4 of the total land in the entire state of New York. Yes, you read that right. Most poor people who fought in the revolution sacrificed years of their lives, not to mention their families, livelihood, and health, to free the land from British control. After the war’s end, many of them believed that having won the war, the land was now theirs. In fact, many soldiers only fought because land had been promised to them in return for their military service. To keep the same system, where a tiny percentage of the population owned the majority of the land, was unacceptable to many Americans in a post-revolution US. This was recognized by 10 General Henry Knox, writing to George Washington - a very wealthy landowner himself - in late 1786 about Shays' Rebellion: “The people who are the insurgents have never paid any, or but very little taxes. But they see the weakness of government...they feel at once their own poverty, compared with the opulent, and their own force, and they are determined to make use of the latter [their force] in order to remedy the former [their poverty]. Their [the insurgents] creed is ‘That the property of the United States has been protected from the confiscations of Britain by the joint exertions of all, and therefore ought to be the common property of all. And he that attempts opposition to this creed is an enemy to equity and justice and ought to be swept from off the face of the earth.’" Washington agreed, and in a letter later that year to Knox, he warned of the potential for rebellion: "there are combustibles in every State, to which a spark might set fire…” Madison echoed these concerns later. Writing in Federalist #107, he identified the source of class conflict at that time: “the various and unequal distribution of property.” Creating a republic, he believed, would prevent a “majority faction,” or a mass movement, from creating trouble. What kind of trouble was he thinking of? “…[A] rage for paper money, for an abolition of debts, for an equal distribution of property, or for any other improper or wicked project.” Shay’s Rebellion also worried the framers not just because of the rebellion itself, but what happened after it was defeated. When the rebellion was crushed, the Massachusetts legislature passed the Disqualification Act, which prohibited the rebellion’s participants and sympathizers from holding public office. It also prevented a legislative response to the crisis by legislators who sympathized with the rebellion’s goals. But in the state’s next election, the governor was overwhelmingly defeated, and the new legislature reduced taxes on the poor, placed a moratorium on debts, and shifted state spending away from interest payments on the war debt. That sounds like democracy – the ability of common people to organize and get the government to do what they want. But this electoral victory for poor farmers in Massachusetts was precisely the kind of thing Madison feared. He called them “symptoms of a leveling spirit,” and he, like Washington, Knox, Jay, and others, saw these symptoms throughout the country. So in response, the framers designed a constitutional system that placed power largely in the hands of the wealthy - the “more capable set of men,” as they were called at the convention - and directly protected their interests by prohibiting states or the federal government from canceling debts, among other protections. At the convention, questions about the new government's ability to protect property interests were agreed upon with remarkably little debate. This isn’t surprising, since there were no poor 11 farmers, craftsmen, indentured servants, or enslaved persons attending the convention who might offer opposing viewpoints. Common working people couldn’t leave work for four months to go to Philadelphia and write a constitution, and probably none of the framers would have wanted their participation anyway. So these debates about the structure and purpose of government were held among a very small number of generally like–minded elites. For example, many convention delegates wanted to exclude the public entirely from direct representation. John Mercer, a delegate from Virginia who ultimately opposed ratification of the Constitution, said its most objectionable feature was "the mode of election by the people” because he feared the kinds of political decisions poor people might make. Gouverneur Morris of Pennsylvania (the author of the constitution’s preamble) warned, "The time is not distant, when this Country will abound with mechanics and manufacturers who will receive their bread from their employers [wage laborers]. Will such men be the secure and faithful Guardians of liberty?” Probably not, he warned, and then compared the poor to children: “Children do not vote. Why? Because they want prudence [meaning they lack caution and foresight]; because they have no will of their own. The ignorant and the dependent can be as little trusted with the public interest."8 Alexander Hamilton, an aide to Gen. Washington during the war and one of the authors of the Federalist Papers, voiced a similar philosophy at the convention while arguing, unsuccessfully, in favor of having a President and Senate chosen for life: “All communities divide themselves into the few and the many. The first are the rich and well-born, the other the mass of the people. The voice of the people has been said to be the voice of God…it is not true in fact... The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class [the rich] a distinct permanent share in the government…Nothing but a permanent body can check the imprudence of democracy." Thomas Jefferson seemed to have greater faith in the majority of people (or at least in white men) than many of the framers. In a letter to Jefferson, Hamilton said the “people” – the general public Jefferson seemed to idealize – “are a great beast that must be tamed.” Hamilton definitely had a way with words, huh? I wonder why this stuff didn’t make it into the Broadway musical? 12 Continuing on that last point in the transcript…in the Federalist Papers (essays written by Madison, John Jay, and Alexander Hamilton published after the convention arguing in favor of ratification of the new Constitution) the framers argued that the protections of property owners in the Constitution would not just protect the wealthy, but also the small, middle class of the period – artisans, craftsmen, and merchants, farmers with small pieces of property, and would-be entrepreneurs and inventors. This argument, along with other economy-stabilizing aspects of the Constitution, appealed to those folks. The new Constitution also empowered the government to support economic growth (Article I, Section 8). There were also important provisions limiting the power of both the national and state governments in key areas. And for those who felt the Constitution did not expressly protect basic rights succeeded in securing the promise of ratification of a future Bill of Rights. All these points and more helped secure enough public support for ratification. And let’s just be freaking real here: some of the Federalists (those who supported the Constitution and the new government) also used bribes, intimidation, threats, and fraud against their opponents during the ratification process. So this process wasn’t just about who had the “best” ideas, but also about who was more ruthless in their willingness to exercise power.9 Finally, the Constitution never was submitted to a popular vote. The Constitution was ratified by state conventions, each with delegates made up largely from the same elite class as the framers. In fact, most of the people who voted for these delegates were subject to property qualifications. These facts further solidify the status of the Constitution as an elite creation. DEMOCRATIC CONCESSIONS And yet, for all its undemocratic aspects and motivations, there were historically progressive and democratic features of the new Constitution, especially considering the time. Some of these features included: The very existence of a written constitution, with specifically limited powers, created a government potentially far more accountable than the more authoritarian forms of government typical in most European countries at the time. Despite many framers’ ideological beliefs about wealth and property, no property qualifications were required for any federal officeholder. Individual states could and did restrict elected office to property holders, however. Salaries were provided for all federal officials. This was a change from the common practice of treating public office as a voluntary service that only the rich could afford. The president and legislators were elected for limited terms; no one could claim any elected office for life (sorry, Hamilton). 13  Article VI prohibited a religious test as a qualification to hold federal office. This was in contrast, unfortunately, to a number of state constitutions that banned Catholics, Jews, atheists and agnostics from holding state and local office. These state restrictions were allowed until 1961 (wow, that’s a long time), when the Supreme Court unanimously struck down religious qualifications for all public offices in Torcaso v. Watkins. Bills of attainder – laws that declared a specific person or group of people guilty of an offense without benefit of a trial – were prohibited. Also, ex post facto laws were prohibited: this is where a law is passed prohibiting some act, then the law is used to punish people who committed the act before it was illegal. That is so not cool. But it was very cool that these were now illegal. There was strong popular support for a Bill of Rights: several amendments to the Constitution limiting the power of the federal government in key aspects of life. Supporters of the Constitution promised the swift adoption of such amendments as a condition for ratification. So in the first session of Congress, the first ten amendments were passed and then adopted. These included limitations on the federal government’s power around speech and religion; the right to assemble peaceably and to petition for redress of grievances; the right to keep arms in order to maintain militias; freedom from unreasonable searches and seizures; freedom from self-incrimination, double jeopardy, cruel and unusual punishment, and excessive bail and fines; the right to a fair and impartial trial; and other aspects of due process. Again, compared to other forms of government at the time, it was the Bill of rights, more than anything else, which truly made the US constitution comparatively democratic and progressive. Related to the first point above, the Constitution represented a victory over British authoritarianism and monarchism. It guaranteed a republican form of government and explicitly rejected monarchy. For example, Article I, Section 9 states: "No title of Nobility shall be granted by the United States.” This was a contentious proposal. According to James McHenry, a Maryland delegate, more than one-third of the 55 delegates wanted some form of monarchy (more evidence that this was a conservative/authoritarian counter-revolution). Yet fear of popular opposition kept them from going fully in that direction. Also, delegates like Madison argued that elite stability would be best secured by a republican form of government in which elites could rule directly without interference from kings and nobles. The elites who wrote the Constitution were not all-powerful. On several occasions during the Convention, these men who feared democracy still found it necessary to show concern for popular opinions and views (such as the direct election of the House of Representatives). If 14  the Constitution was to be accepted by the states, and if the new government was to have any stability, it had to have some degree of popular acceptance, especially given how much popular unrest there was at this time. Related to that last point, it was this widespread popular unrest that motivated the framers to create a strong central government rooted in elite power, but that same unrest also limited how far they could go in that direction. Like with the Bill of Rights, the convention delegates reluctantly made democratic concessions under the threat of popular rebellion. They kept what they could and gave up only what they felt they had to. They did not love “the people” or democracy, and were not motivated by either. They did only as much as they had to in order to avoid riots and rebellions. So the Constitution was a product of both class privilege as well as class struggle, which continued and intensified as both the economy and the government grew. This is a good lesson for us today, when many of us wonder why the government doesn’t do the things most of us want them to do. Ask ourselves: have we made them uncomfortable to the point where they see no other choice? LET’S TRANSITION OUT OF THIS PART... For many of us, the idea that the framers feared democracy seems contradictory, given how most of us were socialized and educated in the US about this. Still it is true, as the minutes of the constitutional convention debates, and other writings of the framers, so clearly demonstrate. But in fairness to Madison and the other framers, both their faith in themselves as the elite as well as their fears of democracy should be considered in context. In one sense, people like Madison were simply expressing ideas other elites (from Alexander Hamilton to Walter Lippmann to Nancy Pelosi and Donald Trump) have always expressed, up to the present day. Like, this is just how most elites think. But another important point is that Madison and the framers were pre-capitalist, like a lot of well-known figures from the Enlightenment. We can’t really say they were pro- or anti-capitalist as we understand it, because there wasn’t really any modern industrial capitalism around yet for them to have an opinion about. It was still in its infancy at that point. So Madison believed if the wealthy of his day had power, they would act as “enlightened statesmen” and “benevolent philosophers” who would “devote themselves to the welfare of all.” That’s a very pre-capitalist idea: if you give power to the rich, they will act with far-sightedness, and selflessly devote themselves to the welfare of all people. That’s actually a foundational principle of feudalism, which had been the dominant economic model of Europe for several centuries. But Madison and others believed it. And again, it’s understandable given the time and their class status. 15 Yet Madison soon discovered it wasn’t working as he hoped. Within a year or two after ratification, he was already disillusioned with the way many elites were behaving under the new government. In a letter to Thomas Jefferson, he condemned what he called the “daring depravity of the times,” specifically the boldness with which banks and financial speculators were using the new government for personal enrichment. “The stockjobbers,” as he called them (an old, disparaging term for stockbrokers), were becoming government’s “tool and its tyrant; bribed by its largesses and overawing it by clamors and combinations.”10 Rather than serve the interests of the public and the nation, as he hoped they would, he saw that they were joining with other elites to use the government to serve their own selfish interests. RACE, ENSLAVEMENT, AND THE CONSTITUTION While the Constitution was primarily motivated by class and nationalist interests, questions of race and enslavement were also central to the framers’ final document. And like class interests, the Constitution was shaped by, and would profoundly impact both white supremacy and the economic system of enslavement. While our cultural narratives and stories about enslavement have evolved, the ones most of us are familiar with speak of it as regional, rather than national. We remember it as a cruel institution of the southern states that would later secede from the Union, and that the purpose of the Civil War was a noble one: to free those who were enslaved. So most of us learned that the system of enslavement was restricted in scope, regional in its impact, and a minor detour on our otherwise admirable march toward progress and liberty. Yet, as we’ve discussed, enslavement was the engine of American economic growth and prosperity, for the entire nation (not just the southern states). The companies and industries dominating the industrial north were intimately tied to enslavement. For example, the United States Bank of Philadelphia recognized cotton (produced by enslaved people) as one of the most profitable US industries, and so it invested in the expansion of enslaved-labor plantations in Mississippi and elsewhere. Many northern banks had similar investments throughout the south. The textile mills of New England that were foundational to industrial capitalism depended on the labor of enslaved persons on southern plantations. And some of those enslavement states like Virginia, Mississippi, and South Carolina wielded global economic power and influence that rivaled the oil-rich Gulf states, like Saudi Arabia, today. Some of these companies still exist in one form or another: the investment firm Lehman Brothers (started in Alabama as a dry-goods outfit); Berkshire Hathaway Inc. (once a Rhode Island textile manufacturer), and the corporate ancestors of JPMorgan Chase and Wachovia Corporation invested in enslavement and/or benefited directly from enslaved labor. The “ivy league” schools that educated the children of the US elite, like Harvard, Princeton, Columbia, 16 and Yale, were all funded by profits from enslaved labor and related industries. America's rapid economic growth in the 1800s and the development of US industrial capitalism didn’t happen in spite of enslavement. It was totally dependent on it.1 In fact, those best suited to take advantage of new opportunities after the US won its independence from Britain – those who would soon be called "capitalists" – were almost never starting from scratch. They were able to draw on wealth generated from the profitable enslavement economies of cotton, sugar and tobacco. Fathers who made their fortunes outfitting ships for transporting kidnapped and enslaved persons had sons, who then used their inherited wealth from enslavement to build factories, charter banks, incorporate canal and railroad enterprises, invest in government securities, and speculate in new financial ventures. So we are considering the context, exactly as Madison urged us to do. And by the time of the constitutional convention, enslavement was the foundation of the developing American industrial economy, and directly influenced how the new government was structured.11 THE THREE-FIFTHS COMPROMISE Let’s get into some specifics, and we’ll start with the three-fifths compromise. During the debates at the constitutional convention, representatives of enslavement states were concerned over how seats in the House of Representatives would be apportioned (divided) amongst the states. Most delegates assumed each state would have a certain number of representatives depending on the number of citizens or persons in their state. In other words, if one state had twice as many people than a neighboring state, it should have about twice the 1 A personal note: the more I’ve learned about this history, the harder it is for me to separate enslavement from capitalism in the US. Other writers have suggested that as far as the US is concerned, we should really be using the term “racial capitalism” because of how essential enslavement, and immediately after, racial discrimination and exclusion, was for both profit maximization and how our economic development was shaped. 17 number of representatives in the House. Most elites in enslavement states (which were most states) did not consider enslaved persons to be citizens, or even persons. Enslaved persons were property, the legal equivalent of a hammer or a mule, as reflected in the notice for the public auction of “personal property” on the previous page. So it made no sense for them to be counted when it came to apportioning House seats. Yet several representatives from enslavement states demanded they be counted as a condition of their support. Consider this: at the time of the constitutional convention, Massachusetts was the only state without enslavement. Of the 3.8 million people counted in the nation at that time, over 700,000, or 18 percent, were enslaved persons. But in South Carolina, 43 percent of the population was enslaved; in Virginia, 39 percent; in Maryland, 32 percent; in North Carolina, 26 percent. If these states were not allowed to include enslaved persons when their representation in the House was apportioned – especially states like South Carolina and Virginia – they would lose political power and influence in the new government. So most convention delegates from enslavement states, especially in the South, insisted that enslaved persons be counted towards representation in the House. If these states were not appeased, they would resign from the process and the new Constitution would not be ratified, just like a bunch of f**kig rich, whiney, entitled brats. Sorry - my bias again! So a compromise was reached that every five enslaved persons in a given state would count as three persons toward representation in the House – the 3/5 compromise. For example, in 1793 enslavement states would have been apportioned 33 seats in the House had the seats been assigned based on the free population; instead they were apportioned 47. In 1812, it was 76 instead of 59; in 1833, 98 instead of 73. As a direct result of this, southerners representing enslavement states dominated the Presidency, the Speakership of the House, and the Supreme Court during the entire period from the ratification of the Constitution until the Civil War. In other words, the 3/5 compromise allowed elite supporters of enslavement to control the national government and shape the nation’s development for almost a century. Congress was prohibited from outlawing the importation of enslaved persons (referred to in the Constitution as “such persons”) until 1808, but the Constitution allowed the government to continue to collect taxes on enslaved persons as property. Congress did ban the importation of enslaved persons on January 1, 1808, though the enslaved population continued to increase through population growth, intentional breeding by their captors, as well as illegal importation. Enslavement also impacted how we vote for president. If presidential elections were determined by popular vote, southern enslavement states would again be at a political disadvantage, since a significant percentage of their “population” were enslaved people who 18 couldn’t vote. So the president, it was decided, would be elected by an Electoral College representing states rather than the popular vote. Here’s how it worked: Each state would have electors: people from the state committed to voting for whoever won the free white male popular vote in that state. The number of electors for each state would be equal to the number of that state’s representatives in the Congress. So if your state had 8 House representatives and 2 Senators, your state had 10 Electors who would vote for president. But for enslavement states, their number of electors were inflated by the three-fifths compromise. And with the three-fifths compromise, they had a clear advantage in determining who would be president. The political power of enslavement states was not total, but they were advantaged and empowered in ways they would not have been without the three-fifths compromise. A little known fact about the Electoral College – we actually came very close to abolishing it in the late 1960s. After months of hearings and research in Congress, the House voted overwhelmingly to get rid of the Electoral College system and move to a national popular vote for electing the president. However, three Senators – each diehard white supremacists, who favored segregation and opposed civil rights – successfully led the fight in the Senate to stop the change, and were supported by other anti-civil rights Senators from the South.13 Speaking of the Senate, its creation was another victory for enslavement states. The constitution requires a bicameral (two chambers) legislature: the House of Representatives and the Senate. The Senate was created to ease the concerns of folks like Alexander Hamilton, who worried about the potential of the House, the only branch of government directly elected by the public, of being too easily influenced by the emotions and passions of the people.2 But what if legislation has to be passed by two bodies in Congress? A Senate representing the larger interests of whole states would guard against the potential for more radical legislation from the House, especially since (even with the three-fifths compromise) northern states with less enslaved people still had significant representation in the House. So having the Senate, in which representation was not based on population, but each state had equal representation (two Senators per state, regardless of population), ensured southern enslavement states would have much more control over legislation than they would with only a single legislative branch in the House. The Senate also gave states much greater influence in national politics since Senators were elected by state legislatures, not by popular vote (this changed in 1911), and the Senate shares 2 Why is it only poor people who are “emotional”? Rich people lose their shit more than anyone I’ve ever seen. Watch them try to navigate traffic on Hall Road, or see what happens when a barista messes up their latte order. 19 important powers with the president, such as the nomination of justices to the courts and presidential appointments. Even after the Civil War and ratification of the 13th Amendment abolishing enslavement, both northern and southern elites continued to oppress people of color, with the support of Congress, the President, the Courts, and state governments. They also had the support of the 13th Amendment which prohibited enslavement or indentured servitude except in cases where someone was arrested and imprisoned for a crime. The 13th Amendment is essentially the constitutional foundation for the widespread use of prison labor, and the disproportionate policing and imprisonment of Black and Brown people in the US following the Civil War and Reconstruction. The compromises in the Constitution that gave greater power to enslavement states over their Black populations had a long life, even after the end of enslavement. The structure of our government, designed to protect enslavement and white supremacy, continued to grant power to states in the South as well as the North to oppress African Americans, and all people of color, for decades after the Civil War ended. Let’s close this part out: Throughout this class, we will see the history of our democracy is really the history of struggle between private interests and the public interest – what is advantageous and profitable for the few versus what is good, just, and fair for the many. At various times, the “daring depravity” Madison spoke of has been victorious, at others it has been beaten back enough for justice and fairness to make some headway. And the more the few are able to divide the many (by race, superficial “class” differences, religion, etc.), the more likely the many are to lose in that struggle. Despite the framers’ intention and efforts to limit the power of the people, the Constitution does provide one framework within which we can push for change, though it is an often difficult one to navigate without creativity, imagination, long-term commitment and perseverance, and collective action. KEY CONSTITUTIONAL PRINCIPLES Beyond their concerns about wealth and property, the framers did share a general consensus about the goals of government. They were nationalists, and believed a strong national government and national unity would better guarantee the survival of the new nation. While there were substantial differences among them over how the new government should be structured – such as the powers of the President versus those of the legislature – they were in agreement on the fundamental need for a stronger federal government. 20 So check it out: let’s step away from some of this larger context, and look a little closer at the document and how it addresses the structure of government and basic principles. Right…wait, so what is it again? The US Constitution is considered by both government officials and the public as the instrument that establishes the authority of the government, and the boundaries of what is or is not legitimate. It establishes the structure of government, the powers of government, and most important, the limitations of government power. As we said at the beginning, the Constitution is the contract between the government of the United States and the citizens of the United States. In Article VI, the Constitution refers to itself, and all laws and treaties based on it, as the “supreme law of the land.” Questions and conflicts about laws or actions that appear to be in violation of the federal Constitution are eventually decided by the federal courts, and ultimately the Supreme Court. That means the Constitution is what the Supreme Court says it is. This changes over time, of course, as the Court changes. Not only do we periodically nominate new members to the Court, but the beliefs and values of Supreme Court justices evolve over time, like our own. In spite of being designed to allow only slow, incremental change, the Constitution has proven to be a flexible, organic document. This is largely due to important Supreme Court decisions that have evolved the Constitution’s meaning, often in response to social, economic, and cultural shifts. This flexibility has helped assure its longevity, even though many of these decisions were often controversial and not universally supported. And we’ve also learned that this flexibility makes all kinds of changes possible - some more progressive, and others more regressive. In the preamble to the Constitution (the short intro paragraph before the text begins), the framers agreed that one of the purposes of the Constitution is “securing the blessings of liberty to ourselves and our posterity.” Posterity means descendants, or future generations. In other words, the Constitution was not designed to last until the following summer, but to last for generations. It was “Built To Last,” like the great New York hardcore band Sick of it All. Unfortunately for us, I don’t think the Constitution has been as consistently good. Check out their most recent album Wake the Sleeping Dragon and try telling me that freaking record isn’t amazing. The intelligence of the framers is evidenced by the language used, the humility in understanding they could not foresee every issue and every challenge, and by providing the possibility of change, particularly with the necessary and proper clause - a.k.a. the “elastic clause” - of the Constitution (found at the end of Article I, Section 8) to allow for future adjustments and changes while the foundation remains secure. We’ll talk more about the necessary and proper clause below. At the constitutional convention, issues that could not be agreed upon were left aside, compromises were made, and some statements about the various powers of the three branches 21 were left vague and ambiguous to await definition by future generations. Still, there were important principles that had more widespread support, and these provide the foundation for how the US government functions: federalism, separation of powers, and checks and balances. FEDERALISM In recognition of the sovereignty of individual states, and the immense pressure to ensure states still held significant power, the framers created a federal system. Federalism is the allocation of powers between national and state governments. The national government (also called the “federal government, which can be confusing) has certain powers, and the states have certain powers. Where both national and state governments share powers – such as the power to tax – these are called concurrent (or shared) powers. In other cases, power is clearly delegated to the national government, such as regulating national commerce, national defense, and immigration policy. An ongoing question in constitutional law and its interpretation is the power of the national government in relation to state governments. What happens if the federal government passes a law that a state government does not want to follow, like the 2010 healthcare reform law? Or if an action is illegal under federal law, but an individual state passes a law declaring that action legal, like Michigan’s law allowing the use and licensed sale of recreational marijuana? Well, it depends, and the Court’s position on this has evolved quite a bit. The constitutional law foundations for this issue were first and most famously addressed in McCulloch v. Maryland (1819). Let’s talk about that case now: McCulloch v. Maryland: National Supremacy and Implied Powers In 1816, the federal government passed a law providing for the building of a national bank. Boring, right? Well yeah, but check it out: The first branch of the national bank was in Pennsylvania, and another was later opened in Maryland. But the state government of Maryland passed a law which gave Maryland the power to tax the bank, and to raise revenue from its operation. The national government challenged this, claiming a state could not have such power over the national government (it argued that the ‘power to tax was the power to destroy’ - meaning, the state could pass tax laws that were 22 so extreme that the national bank wouldn’t be able to function). The state government argued that it did have this power, since it was not specifically restricted in the Constitution. In other words, the Constitution did not say Maryland couldn’t do this. It’s like when you take a cookie, and your mom says “I didn’t say you could have that” and you say “yeah but you didn’t say I couldn’t have that.” Did that ever work for you? And besides, Maryland argued, the Constitution did not grant the national government the specific power to build a bank. When the case was argued in the Maryland state Supreme Court, that court agreed with the state government. It was then brought to the federal Supreme Court on appeal. In that case, McCulloch v. Maryland, the federal Supreme Court ruled in favor of the federal/national government, and in doing so established two important Constitutional principles: 1) congress has implied powers, and 2) the concept of national supremacy. Let’s look at the relevant sections of the Constitution in Section 8 of Article I. This might be a good time to open up that link to the Constitution online in this Week’s module. Here’s how that section starts: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; …and then Section 8 continues with a list of enumerated (specifically listed) powers of Congress, such as “To borrow money on the credit of the United States” and “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…” You’ll notice the first section quoted above in italics ends with a semicolon. That is because the first line, beginning with “The Congress shall have Power” was meant to apply to everything listed in Article 1, Section 8. As I said, in McCulloch the court ruled that Congress has implied powers, based on their enumerated powers. But where does the Constitution provide “implied powers”? From the "necessary and proper" clause at the end of Section 8, which reads: [The Congress shall have Power]…To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. “Forgoing Powers,” means the powers listed in Article 1, Section 8. 23 Now, on the surface, Maryland was correct - in Article I, Section 8, there is no enumerated power of Congress to build a bank. However, Section 8 does grant Congress the power to “coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures…” Since Section 8 ends with Congress having “all powers necessary and proper” to carry out their enumerated powers, the Court decided that based on its power to coin money, Congress must also have the power to build a bank. In this, the Court ruled the power to build a bank is a necessary and proper, or implied, power for Congress, based on its enumerated power to coin money. Second, the Court addressed the state of Maryland’s claim that it had the power to tax the national government. Here, it affirmed the principle of national supremacy, from Article VI. The Court said Article VI of the Constitution clearly states that the Constitution and “all laws made in pursuance thereof” are “the supreme law of the land,” and cannot be overridden or dismissed by state governments, no matter what any state law or judge in any state says.14 And the establishment of that bank was based on a federal law, passed by Congress. 24 McCulloch is an important case in the long history of the Court dealing with the principles of implied powers and national supremacy/federalism, and Chief Justice John Marshall’s majority opinion in McCulloch laid the foundation for how we would understand these principles. Later in Gibbons v. Ogden (1824), the court established the doctrine of federal preemption: state laws that conflict with federal law, and with rulings issued by the federal Supreme Court, are invalid. What’s more, they are invalid in all states where they exist, not just in the state in question. For example, with the 1969 case Loving v. Virginia, in which the Court said Virginia’s prohibition on interracial marriage violated the 14th Amendment’s equal protection clause, similar laws against interracial marriage that existed in several other states were no longer valid. A separate case for every state with such a law doesn’t have to be brought to the Court - once the Virginia law was ruled unconstitutional by the Court, that ruling applied to any other state with a prohibition against interracial marriage. The same occurred in 2015 when the Supreme Court ruled that the right of marriage (a legal status) could not be denied to same-sex couples.15 There are many other examples of the struggle between national supremacy and the powers of state governments, such as civil rights, school integration, national safety standards, national labor standards, and more. Let’s spend a bit more time on that now. NATIONAL SUPREMACY National supremacy is about more than court rulings, it’s also about enforcement. For example, the Court’s ruling in Brown v. Board of Education (1954) (a case which began with student-led strikes) found that racially segregated schools violated the equal protection clause of the 14th Amendment, and in a subsequent ruling the Court ordered states to begin school integration. It was the end of the legal concept of “separate-but equal”. But many southern states largely resisted desegregation.16 So Congress and/or the President have to step in and enforce such rulings, since the Supreme Court doesn’t have its own army or any means of enforcement. This can be done through legal means, by force such as calling in the National Guard, or economic pressure like denying federal highway funding to states that refuse to enforce or obey national civil rights laws, which was one strategy used by the federal government. 25 Sometimes the federal government doesn’t pass a direct law, but uses different ways to motivate states to go along with what it wants. For example, instead of setting the national drinking age at 21 and forcing all states to comply, Congress passed a transportation bill in 1984 that called for a 10% decrease in transportation funding to any state that did not have a minimum drinking age of 21. States could still have a minimum drinking age of 18, but they’d be getting less federal funding for roads and transportation. While all states prohibit drinking in public under 21, some states adopted more lenient laws regarding private drinking. But this is a good example of the federal government using its power in an indirect way to achieve what it wants, without using more aggressive measures. At the same time, states are still free to go beyond federal law. Take the federal minimum wage law. Currently, the federal minimum wage (with some big exceptions, such as tipped workers) is $7.25 an hour. That means the state of Michigan cannot have a minimum wage below the federal standard of $7.25. It can, however, have a higher minimum wage – which it does, at $10.33 (it began to increase by increments in 2014, after a massive organizing drive by citizens and labor groups to raise the wage even higher was undermined by the state legislature). Michigan could go up to $15.00 an hour or more if we wanted, but we are not allowed to go below the federal minimum of $7.25. 26 So national supremacy means if there is a federal law about some issue, that law sets the minimum standard for every state in the country. We see this around other issues: Michigan cannot allow race discrimination in employment, because it would violate federal law. But there is no federal law against discrimination based on height or weight. Still, Michigan state law prohibits discrimination in both of these, so each state is free to go beyond federal law in these matters. As noted, the Supreme Court decides what the relationship is between national power and the power of the states. As the Court changes and evolves, with new members who share different ideas and beliefs about what the Constitution means, the meaning of federalism changes. For example, after 1937, and years of economic depression, the Court began ruling pretty consistently that almost anything with even a slight impact on commerce could be subject to federal regulation. This was largely the result of the massive popular unrest during the 1930s during the Great Depression, and the change in the federal government’s actions and powers expressed in the New Deal legislation of that time, as well as powers asserted by the government during World War II. To summarize, the impact of the New Deal and the Second World War on the constitution, by way of the Supreme Court, was to substantially change the power of the federal government, and its relationship with state governments, regarding the economy. And so, from 1937 to 1995 the Court did not overturn a single act of Congress when an act was challenged as exceeding Congress's power under the Commerce Clause of Article I, Section 8. This was a significant shift from the Court’s interpretation before this time, which was very hostile to any actions by the state or federal government intended to regulate the economy. This trend changed by the 1990s. When the Court under Chief Justice William Rehnquist began to limit the regulatory power of the federal government in United States v. Lopez (1995) and United States v. Morrison (2000), it started a shift away from federal supremacy and a return to “states rights.”17 This principle of restricting the federal government’s regulatory power has been called the “new federalism” or "devolution,” and has been applied to many issues, including labor law, gender discrimination, discrimination against the disabled, and affirmative action. In 2022, the court reversed long-standing precedent and ruled that there is no federal protection for abortion - it is now up to individual states to regulate abortion. At the same time, the Court has not applied the “devolution” principle in every issue. It has upheld national supremacy on drug policy in Gonzales v. Raich (2005), where the Court ruled the federal government could outlaw the use of medical marijuana under the Commerce Clause, even if the marijuana was never bought or sold, and never crossed state lines. Despite not being consistent, many recent rulings issued by the Court in favor of greater state powers show a shift away from the national supremacy standard that began in the late 1930s. 27 SEPARATION OF POWERS Separation of powers is an old concept, where a government is divided into branches, each with separate and independent powers and areas of responsibility. The US Constitution expressly delegates certain powers to the Legislative branch, or Congress (Article I of the Constitution), the Executive Branch/Presidency (Article II), and the Judiciary (Article III). The purpose of separation of powers is to ensure that all government power is not centralized in one branch of government. While the Constitution certainly grants more specific powers to Congress than any other branch, it also limits Congress’s powers in Article I, Section 9. Additional limits on both Congress and the Presidency are outlined in the Bill of Rights and additional amendments. National Security and Foreign Policy were placed firmly into the hands of the national government (again based on the negative experiences under the Articles of Confederation), and specifically with the Congress and the President. The power to declare war, for example, lies with Congress. This seems odd, as today we tend to think of the President as having most control over military issues. Congress has the Constitutional power to declare war, is in charge of appropriations (funding), and makes the rules for the armed forces. But the unique position of Commander-in-Chief, based largely on George Washington’s anticipated presidency, has by evolution and precedent made the President the dominant voice in foreign affairs. Since World War II, however, there has been growing controversy over to what extent the presidency has become “imperial” and if control over foreign policy and the use of the military have become too concentrated in the executive branch.18 The “imperial presidency” concept suggests the Presidency is going beyond its constitutional powers regarding national security, and also diminishing Congress’s role (or ignoring Congress altogether), despite the legislative branch’s clear powers in this area. 28 We can certainly see aspects of the imperial presidency today. President Bush claimed executive power under national security to detain American citizens accused of terrorism without trial or the right of habeas corpus - the right to demand the government show evidence justifying your arrest and imprisonment - and also claimed the right to withhold any evidence in a court trial as a matter of national security. President Obama continued these powers, and carried some further, asserting the right to assassinate American citizens, without trial, as was done to Anwar al-Alawi, a US-born Islamic cleric living in Yemen who was aligned with Al-Qaeda. And when the U.S. intervened militarily in Libya in 2011, President Obama did not ask for approval from Congress. During the 2016 campaign, President Trump indicated he would continue to use these powers, and even expand them, and during his term as president he also expanded presidential powers in other ways. 19 Given the polarization in Congress today, and the difficulty in getting even moderate legislation passed, some argue that it is more practical (and ultimately, perhaps safer) to delegate decisions about the use of the military and national security to the executive branch, despite the clear intention of the framers. CHECKS AND BALANCES To prevent too much concentration of power in any one branch or person, the framers also designed internal mechanisms that granted the individual branches of government some powers over the other branches, and required individual branches of government to work together and cooperate. We call these “checks and balances.” So the Constitution 1) reduces the possibility of excessive power being exercised by one of the branches by giving other branches the power to stop them ("checks"), and 2) requires different branches (specifically, the legislative and executive) to cooperate in order to prevent policy inaction (“balances”). Some examples of checks include the ability of the president to veto legislation, Congress’s ability to override the President’s veto with a 2/3 vote in both the House and Senate, the President’s power to nominate justices to the courts, and the Senate’s power to approve or reject those nominees. The last two, involving judicial nominees, also are an example of balance – in Article II, the Constitution requires that the power to put justices on the federal courts be shared by the President and the Senate. Judicial Review is the judiciary’s check on the actions and laws of the executive branch and the legislative branch. This was not specified in the Constitution when it was written, mainly because of concerns about support for ratification. If folks thought nine unelected people could get rid of legislation, even popular legislation, they might not vote to ratify the Constitution. Much of the debate around the new Constitution focused on whether or not the new government would have too much power, and the framers knew the appearance of excessive power in the courts could mean defeat for the Constitution. 29 At the same time, as Hamilton made clear in the Federalist Papers, the framers assumed the Court would have the power of judicial review, like courts in other countries, but he stressed that the checks on its power would keep the Supreme Court (and the federal court system overall) from being too powerful. These checks include oversight and funding by Congress, and the nomination and approval of justices by the President and the Senate. In 1803, Chief Justice John Marshall’s decision in Marbury v. Madison (1801) affirmed the court’s power of judicial review when it ruled that one part of a law passed by Congress was unconstitutional. So the mechanisms/concepts of separation of powers and checks and balances are in place to prevent one branch of government from becoming too powerful. But they also have the intended effect of making only incremental change possible. Checks and balances, along with separation of powers, make it very difficult for the US government to pass laws that change society in a radical or even modest direction. In addition to these features of the constitution, part of the reason for incrementalism is the centrality of race and enslavement in how the constitution was written, how the different branches were structured, and how the Constitution was interpreted for decades after its ratification, as we discussed above. CONCLUSION The Constitution, and the circumstances of its drafting and ratification, illustrates the complexity of the American system of government, and the power dynamics of class, race, and gender. Though its writers were all men, all white, and predominantly members of the wealthy elite, the Constitution did gain some support among the white male middle class of the period. Small farmers, artisans, craftsmen, brewers, bakers, blacksmiths, and others saw the Constitution’s property protections as shielding their interests. They were also moved, to some extent, by a new spirit of nationalism, and were ultimately convinced to support ratification with the promise of the addition of a Bill of Rights - amendments granting more specific limitations on the power of government to infringe on both substantive and due process rights. The meaning of our Constitution – what it allows or prohibits in terms of personal freedom, rights, and the role of government – has changed over time, and its current meaning sometimes seems in conflict with the spirit of the document (or what we think that spirit is). And some government actions that were once accepted and normalized are now against the law. Many of these changes - such as prohibitions against discrimination, or the right to remain silent under police questioning - especially those that have lasted generations, are now ingrained into our national consciousness. The US is not the same country it was during the European founding, and our Constitution is a different document than what was ratified over 200 years ago. It’s not only different in text, with the added amendments, but different in meaning and interpretation. 30 Most of these changes are the result of citizen activism and organizing. So the question of how flexible the Constitution is, how it can be used, and what it ultimately means, is one that we as citizens – whether through action or inaction – play a large role in answering. DISCUSSION QUESTIONS: Should the U.S. Constitution be a living document that adapts to the times, or should it mean today exactly what it meant when it was originally written? Explain. Why is it difficult to work with people with whom we disagree? How might that be rewarding, and what is needed to make it rewarding? We discussed legal accountability in Chapter 2. What aspects of the Constitution facilitate legal accountability? Eric Foner, a prominent U.S. historian, has said that a problem with the history Americans are commonly taught is “that history could never have resulted in the present we are currently experiencing.” Did anything in this chapter help make sense of some issue we are dealing with today? Explain. How does what we learned about socialization help us understand the people who debated and drafted the Constitution, and their goals? ENDNOTES 1 Area Man Passionate Defender of What He Imagines Constitution to Be. The Onion, 11/14/2009. http://www.theonion.com/articles/area-man-passionate-defender-of-what-he-imagines-c,2849/ 2 Lion Calandra. “Why Do Americans Get the Constitution So Wrong?” Christian Science Monitor, 9/17/2010. http://www.csmonitor.com/Commentary/Opinion/2010/0917/Why-do-Americans-get-the-Constitution-so-wron g/ 3 Regressive taxes are tax rates that inflict greater burdens (relative to one’s resources) on the poor. In other words, as a share of their total income and wealth, poor people pay more. 4 Fun fact: The three of them met in high school, and for about a year and a half played in a garage punk band called Jack Tar and the Johnny Cakes. 5 Saying that property has rights, or in the following paragraph “the rights of property” is a little strange. There are no rights of property, only rights to property - meaning rights of persons with property. Maybe I have a right to my house, and the right to paint my living room whatever color I want - but my house has no rights. Beyond that, a “right to property” differs from other rights, because one person’s possession of property deprives another of that right. In other words, if I own my house, then you don’t own my house. But the same isn’t true of free speech: if I have freedom of speech, you can still have freedom of speech. And of course, property is different from speech and other substantive rights because one costs money and the other does not. So Madison is saying that beyond the protection of some rights, the government must provide special and additional guarantees for the rights of one class of persons: property owners. 7 The Federalist Papers were essays written by Madison, John Jay, and Alexander Hamilton. They were published and distributed over several months after the convention arguing in favor of ratification of the new Constitution. 31 8 Wow…he sounds like a great Dad. :/ Debates on the Federal Convention of 1787 (Tuesday, August 7 ). http://www.historycentral.com/NN/Journal/August7.html Personally, I believe the minimum voting age should be zero. If you’re out of the womb, you can vote. But that’s another conversation. :) 9 See Michael J. Klarman’s The Framers' Coup: The Making of the United States Constitution (2016); and Pauline Maier’s Ratification: The People Debate the Constitution, 1787-1788 (2011). 10 “Largesses” means the giving of money and gifts. Letter to Thomas Jefferson from James Madison, 8 August 1791. http://founders.archives.gov/documents/Jefferson/01-2202-0017 11 Seth Rockman. “The Future of Civil War Era Studies: Slavery and Capitalism.” Journal of the Civil War Era (online). North Carolina University Press. http://journalofthecivilwarera.com/forum-the-future-of-civil-war-era-studies/thefuture-of-civil-war-era-studies-sla very-and-capitalism/. See also: Sven Beckert and Seth Rockman, co-editors. Slavery's Capitalism: A New History of American Economic Development. University of Pennsylvania Press, 2013, as well as Edward Baptiste, The Half Has Never Been Told: Slavery and the Making of American Capitalism, Basic Books, 2016. It should also be noted that several scholars have offered very compelling arguments in recent years that the colonists’ desire to maintain enslavement was an important factor in the revolutionary war against Britain. In 1772, just four years before the Declaration of Independence was written, the slave trade was essentially banned in Great Britain, which signaled a trend in favor of rights for Africans. Also, throughout the British and French Empires, especially in the Caribbean, there was constant flight, rebellion, and everyday resistance by enslaved Africans, which frightened the colonists who favored independence, and they wanted a strong central government to control such resistance. See for example: The Counter-Revolution of 1776: Slave Resistance and the Origins of the United States of America. Gerald Horne. NYU Press, 2014. 13 Alexander Keyssar. “Peculiar Institution.” Boston Globe, October 10, 2004. http://www.boston.com/news/globe/ideas/articles/2004/10/17/peculiar_institution?pg=full 14 Unless the Court finds the law in question to be unconstitutional, or if the federal law in question gives some leeway, some wriggle room, to the states. 15 Obergefell v. Hodges, 2015. 16 This response from many southern states was predictable, because instead of requiring desegregation to begin immediately, the court used the vague phrase “with all deliberate speed,” which Southern states interpreted as “yeah, we’ll get to it later. Much later.” 17 In the Lopez case, the court ruled that a law banning the possession of guns within dedicated “school zones” was unconstitutional, because the law went past the boundaries of what Congress can do based on the commerce clause of Article 1, Section 8. In Morrison, the court ruled that parts of the Violence Against Women Act of 1994 were unconstitutional for similar reasons. 32 18 There is also the related question, as we discussed in Chapter 4, of the power and influence of what President Eisenhower called the military industrial complex: the reciprocal and incredibly profitable relationship between the Defense Department (under the Executive Branch), members of Congress, and private weapons manufacturers. Eisenhower was concerned that when war becomes profitable for these companies, and Congressional representatives benefit both from campaign contributions and defense funding for their districts (and after they leave office, jobs in those industries), the combined power of this “complex” would undermine democracy. Going to war, and our general spending priorities around national security, would no longer be a democratic decision between the people, Congress and the President, but ultimately a business/profit decision. 19 For example, Trump argued during the 2016 campaign that the family members of terrorists should also be targets of assassination. Zach Beauchomp. “Trump Said He’d Kill Terrorists’ Families at Rally: The Crowd Went Wild.” Vox, January 25, 2016. https://www.vox.com/2016/1/25/10828770/trump-terrorist-family-appeal As president, Trump moved money appropriated by Congress to unauthorized purposes, ignored laws prohibiting emoluments (financial rewards as a result of the office), and staffed the government with acting department heads unconfirmed by the Senate. Many of the constraints on the presidency are normative or traditional (like releasing tax records) rather than statutory or constitutional. By ignoring those constraints, Trump dramatically increased the powers of the executive branch. Ironically, during the COVID-19 crisis, Trump took the opposite approach and utilized very few of the powers of the presidency. 33