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Time to Stop Playing “Simon Says” with James Madison and Alexander Hamilton

Photo by John Trumbull | CC BY 2.0

The People as a Problem to be Contained

As the United States’ depressed, distracted, disorganized, and demobilized populace watches the vicious white-nationalist and authoritarian Donald Trump and the arch-reactionary Republican Party craft a Supreme Court yet further to the right of majority public opinion, the worst of the nation’s slave-owning Founders might just be heard chuckling in their graves.

Democracy – the rule of the majority – was the last thing the nation’s aristo-republican Founders wanted to see break out in their new republic. Drawn from the elite propertied segments in the new nation, most of the delegates to the 1787 Constitutional Convention shared their compatriot John Jay’s view that “Those who own the country ought to govern it.” As the celebrated U.S. historian Richard Hofstader noted in his classic 1948 text, The American Political Tradition and the Men Who Made It:“In their minds, liberty was linked not to democracy but to property.” Democracy was a dangerous concept to them, conferring “unchecked rule by the masses,” which was “sure to bring arbitrary redistribution of property, destroying the very essence of liberty.”

Protection of “property” (meaning the people who owned large amounts of it) was “the main object of government” for all but one of the U.S. Constitution’s framers (James Wilson), as constitutional historian Jennifer Nedelsky has noted. The non-affluent, non-propertied and slightly propertied popular majority was for the framers what Nedelsky calls “a problem to be contained.”

Anyone who doubts the anti-democratic character of the Founders’ world view should read The Federalist Papers, written by the leading advocates of the U.S. Constitution to garner support for their preferred form of national government in 1787 and 1788. In Federalist No. 10, James Madison argued that democracies were “spectacles of turbulence … incompatible with … the rights of property.” Democratic governments gave rise, Madison felt, to “factious leaders” who could “kindle a flame” among dangerous masses for “wicked projects” like “abolition of debts” and “an equal division of property. … Extend the [geographic] sphere [of the U.S. republic],” Madison wrote, and it becomes “more difficult for all who feel it to discover their own strength and act in union with each other.”

At the Constitutional Convention, Madison backed an upper U.S. legislative assembly (the Senate) of elite property holders meant to check a coming “increase of population” certain to “increase the proportion of those who will labour under all the hardships of life, and secretly sigh for a more equal distribution of its blessings” [emphasis added]. “These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former.”

In Federalist No. 35, the future first U.S. secretary of the treasury, Alexander Hamilton, argued that the common people found their proper political representatives among the small class of wealthy merchant capitalists. “The idea of an actual representation of all classes of people by persons of each class,” Hamilton wrote, “is altogether visionary.” The “weight and superior acquirements of the merchants render them more equal” than the “other classes,” Hamilton proclaimed.

Somebody tell Lin-Manuel Miranda!

Checkmating Popular Sovereignty

The New England clergyman Jeremy Belknap captured the fundamental idea behind the U.S. Founders’ curious notion of what they liked to call “popular government.” “Let it stand as a principle,” Belknap wrote to an associate in the late 1780s, “that government originates from the people, but let the people be taught…that they are unable to govern themselves.”

It wasn’t just about teaching “the people” that they were incapable of self-rule, however. The Constitution was designed to make sure the popularity majority couldn’t govern itself even if it thought it could. The rich white fathers crafted a form of “popular government” (their deceptive term) that was a monument to popular incapacitation.

The U.S. Constitution divided the federal government into three parts, with just one-half of one of those three parts (the House of Representatives) elected directly by “the people”—a category that excluded blacks, women, Native Americans and property-less white males (that is, most people in the early republic). It set up elaborate checks and balances to prevent the possibility of the laboring multitude influencing policy. It introduced a system of intermittent, curiously time-staggered elections (two years for the House, six years for the Senate, and four years for the presidency) precisely to discourage sweeping popular electoral rebellions It created a Supreme Court appointed for life (by the president with confirmation power restricted to the Senate) with veto power over legislation or executive actions that might too strongly bear the imprint of the “secretly sigh[ing]” multitude.

It sanctified the epic “un-freedom” and “anti-democracy” of black slavery, permitting slave states to count their disenfranchised chattel toward their congressional apportionment in the House of Representatives.

The Constitution’s curious Electoral College provision guaranteed that the popular majority would not directly select the U.S. president—even on the limited basis of one vote for each propertied white male. It is still in effect.

U.S. Americans did not directly vote for U.S. senators for the first 125 years of the federal government.  The Constitution said that senators were to be elected by state legislatures, something that was changed only by the Seventeen Amendment in 1913.

It is true that the Constitution’s Article V provided a mechanism technically permitting “We the People” to alter the nation’s charter. But the process for seriously amending the U.S. Constitution was and remains exceedingly difficult, short of revolution and/or  civil war. As the progressive Constitution critic Daniel Lazare observes,

“Moments after establishing the people as the omnipotent makers and breakers of constitutions, [the 1787 U.S. Constitution] announced that … [c]hanging so much as a comma in the Constitution would require the approval of two-thirds of each house of Congress plus three-fourths of the states. … The people did not assert their sovereignty in Philadelphia in 1787. Rather, the founders invoked it. Once they uttered the magic incantation, moreover, they hastened to put the genie back in the bottle by declaring the people all but powerless to alter their own plan of government.”

U.S. progressives have long advocated constitutional amendments meant to more properly align U.S. politics and policy with public opinion and basic democratic values. But Article V is too steep a barrier for that, on purpose. Under its rule today, 13 of the nation’s 50 states can disallow constitutional changes while containing just more than 4 percent of the nation’s population. (It took the secession and military defeat of the slave South between 1861 and 1865 [the Civil War] to pass amendments abolishing slavery and granting citizenship and the suffrage to former slaves (new forms of Black slavery and racist disenfranchisement nonetheless took hold in the South during and after the Reconstruction era).

Don’t like that?  Too bad. Simon – well a bunch of slaveowners and other really rich guys and their holy national charter near the end of the 18thcentury – says.

Indirect Selection

The U.S. Constitution was written and enacted late in the1780s, when the infant republic’s masters wore powdered wigs, slavery was still the law of the land (as it would for nearly eight more decades), and (speaking of powdered wigs) the Bourbons still ruled in France.  Here we are more than two-and-a-quarter centuries later, still dealing on numerous levels with the purposefully authoritarian consequences of the nation’s founding charter.

It’s a little, well, pathetic.

The Constitution is no small part of how a majority-progressive nation that votes primarily (though with little enthusiasm) for a centrist party, the Democrats (viewed unfavorably by 51 percent of U.S.-Americans) is ruled by an ever more right-wing  government led by an arch- reactionary white-nationalist party, the Republicans.  So what if the GOP is viewed unfavorably by 59 percent of the U.S. populationand backs a hated president who is disapproved of by a super-majority of the citizenry?

Look at the Electoral College system, designed to curb democracy and expressly crafted to elevate the power of the slave states. By giving each state an extra vote for both senators they send to Washington (no matter how small or large each state’s populations), it triples the clout of the nation’s eight smallest states and doubles that of the next six smallest states relative to their populations.

For the fifth time in history and the second in this century, the Electoral College in 2017 installed a president who failed to win the national popular vote. Donald Trump, the biggest popular vote-loser to ever inhabit the White House, is a racist, sexist, authoritarian, uber-plutocratic, and malignant megalomaniac and narcissist. He’s an ecocidal climate change-denier who should not be allowed anywhere near the nation’s energy policy or its nuclear codes. It’s not for nothing that even the depressing and highly unpopular “lying neoliberal warmonger”Hillary Clinton polled 2.8 million more votesthan he did last November.

The extensively despised orange monstrosity made it into the world’s most powerful and dangerous job thanks in no small part to the Electoral College, which renders presidential campaigning irrelevant (and close to nonexistent) in most of the nation, gives absurdly outsized weight to disproportionately white and right-leaning rural states and openly violates the core democratic principles of majority rule and one-person, one-vote.

Along with some help from the constitutionally super-empowered Supreme Court, the openly ludicrous Electoral College is also part of how popular vote-loser George W. Bush (who criminally invaded Iraq partly out of the belief that doing so was God’s will) ascended to the presidency in 2000-2001.

The Senate is even more skewed to the right. The GOP holds a majority in the upper chamber thanks in no small part to the simple and expressly anti-democratic slant the Constitution gives—in the name of “equal suffrage for the states”—the 2 percent of Americans who live in the nation’s nine smallest states have the same amount of senatorial representation as the 51 percent who live in the nation’s nine largest states.

Wyoming, home to more than 586,000 Americans, holds U.S. senatorial parity with California, where more than 39 million Americans reside. Due to “a growing population shift from the agricultural interior to crowded corridors along the coast,” Lazare explains, “it is possible now to win the majority of the U.S. Senate with just 17.6 percent of the popular vote.”

That is completely insane, from a democratic perspective anyway.

It’s all coming into ugly authoritarian and racist play right now to create a right-wing Supreme Court ready to rule in defiance of majority progressive public opinion for a generation at least. Thanks to Trump’s Electoral College victory, to the Republican-run U.S. Senate’s “check and balance” refusal to let Barack Obama appoint a Supreme Court justice to fill the vacancy left by the death of Antonin Scalia, and to the resignation of two Supreme Court justice since Trump came in, the ultra-right GOP is about to solidify its control the appointed-for-life Supreme Court by getting its second hard-right justice appointed to the high court within one year.

Don’t like it?  Too bad. Simon, I mean the Constitution, says!

Gerrymander Rules

And then there’s the House of Representatives, where the widely hated Republican Party enjoys a 47-vote majority even though it outpolled the (admittedly dismal) Democrats by just over 1 percent in House races in 2016.  Even with the Trump-tainted GOP finding approval from just  one in three U.S.-Americans and with Republicans 17 percent less enthusiastic than Democrats about voting in the 2018 mid-term elections, it is not inconceivable that the rightmost of the two parties could retain its hold over the House in 2018 and 2020.

This reflects the widespread geographic manipulation of House district lines in such a fashion as to unduly advantage the Republican Party.  This partisan-geopolitical gerrymandering process is led by the nation’s mostly Republican-controlled state legislatures.  This is in accord with the federalist principle laid out in Article 4, section 1 of the U.S. Constitution, which proclaims that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…” Effectively, this means that state legislatures are granted primary authority to regulate federal elections, including how their congressional district lines are to be drawn.

It is true that Article 4 goes on to say that “the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.” Technically, then, Congress is the ultimate authority, and may supersede state laws on how districts are drawn.  It has done this in the past, requiring (in 1967) single-member districts (compelling voters to elect only one candidate to represent their district) and forcing states to enhance racial and ethnic minority groups’ representation. The federal courts have interpreted the Constitution to require that House districts hold roughly equal populations.

Still, Congress has never mandated a congressional redistricting process, something that has left states free to draw districts in accord with partisan considerations. And good luck getting “our” right-wing federal judiciary not to back  Republican challenges to any serious efforts at national democratic redistricting reform.

“The American People Have Input Every Four Years”

In some rich nations operating with parliamentary systems, terrible presidents or prime ministers can be forced to call or accede to new national elections. Such an action is of course unthinkable in the U.S.  Simon – I mean the slaveholders 18thCentury Constitution- says that qualified voters go to the polls to select presidents once every four years, national senators (apportioned two per state regardless of wildly different population sizes among the nation’s 50 states) once every six years, and (lower) House representatives (apportioned in accord with population but along now strictly gerrymandered geographical lines) once every two years. As George W. Bush’s White House spokesperson Dana Perino explained in March of 2008 when asked if the citizenry should have “input” on U.S. foreign policy: “You had your input. The American people have input every four years, and that’s the way our system is set up” [emphasis added].

Perino was on all-too-strong constitutional ground. So was Trump when he tweeted in response to the historic mass demonstrations that followed his inauguration: “Watched protests yesterday but was under the impression that we just had an election! Why didn’t these people vote?” Never mind that most of the marchers did vote (for the horrific “lying neoliberal warmonger”) or that most U.S. citizens think public opinion should matter to presidents between elections.

Constitutional Simon Says you get to select a U.S. president in a voting booth for two minutes or so once every 1,460 days. Well, except you don’t really vote directly for the president. The U.S. presidential vote is filtered through the explicitly anti-democratic Electoral College, which has (to repeat) delivered the White House to a loser of the popular in 2 of the last presidential elections.

You get to vote for a US House member in a voting both for a few minute once every 730 days. You get to vote for each of your US Senators once every 1095 days.

To make matters worse, the choices on offer to voters in U.S. presidential, Senate, and House elections are almost always (with painfully few exceptions) reflect a narrow selection  between two corporate and imperialist candidates, one a Democrat and the other a Republican – representatives of dollar-drenched political organizations that function as “two wings of the same bird of prey” (Upton Sinclair, 1904). That, too, is related to the Constitution, as I will suggest below.

You don’t vote for Supreme Court justices, really. The president, for whom you don’t vote directly, does, subject to approval only from the upper Congressional body, the Senate, which absurdly overrepresents the rural and white populace. And the Supremes are appointed for life, which can be a long time.

Hello, Mike Pence?

You can push “your” Congressional “representatives” to advocate Trump’s impeachment (by the House) and removal (by the Senate). Trump has certainly given the House numerous grounds for impeachment, but the barriers to removal are high. The two houses of Congress, the absurdly gerrymandered House and the ridiculously unrepresentative Senate, are both under the control of the president’s broadly hated nominal party, the Republicans, and the Republicans are determined to get everything they can from Trump when it comes to advancing their radically regressive, racist, ecocidal and arch-plutocratic agenda. It takes a two-thirds vote in the Senate to remove a president. It’s never happened (though Richard Nixon would have likely been impeached and removed had he not resigned).

But what would impeachment and removal give the nation under the preposterously revered U.S. Constitution but the presidency of arch-right-wing Republican Mike Pence? You think Trump is scary? Pence is a white nationalist Christian proto-fascist under whose rule the hard-right agenda that most of the populace hates might be advanced more effectively than it is ever under Trump.

Constitution says that impeachment in the House and conviction in the Senate makes the monstrous homophobe Pence POTUS.

Don’t like it?  Too bad. Simon, I mean the Constitution, says.

Money Is Speech: Simon Says

So “suck it up, buttercup” and get back in shape for the next strictly time-staggered and Constitutionally mandated quadrennial electoral extravaganza to vote a Democrat into the White House, right? Really? Why bother? Notice the quote marks I used three two paragraphs above (“You can push ‘your’ Congressional ‘representatives’”). Everyone who follows US politics and policy with more than three functioning gray cells knows very well that both of the nation’s reigning two “viable” political parties are controlled by the wealthy few in New Gilded Age America, where the top 1 Percent owns more than 90 percent of the nation’s wealth and a nearly equivalent percentage of its “democratically elected” office-holders. As the distinguished political scientists Benjamin Page (Northwestern) and Marin Gilens (Princeton) show in their important new volume Democracy in America?:

“the best evidence indicates that the wishes of ordinary Americans actually have had little or no impact on the making of federal government policy. Wealthy individuals and organized interest groups—especially business corporations—have had much more political clout. When they are taken into account, it becomes apparent that the general public has been virtually powerless . . . The will of majorities is often thwarted by the affluent and the well-organized, who block popular policy proposals and enact special favors for themselves . . . Majorities of Americans favor . . . programs to help provide jobs, increase wages, help the unemployed, provide universal medical insurance, ensure decent retirement pensions, and pay for such programs with progressive taxes. Most Americans also want to cut ‘corporate welfare.’ Yet the wealthy, business groups, and structural gridlock have mostly blocked such new policies [and programs] (emphasis added).”

Whichever party or whatever party configuration holds power in Washington and the state capitals, mammon reigns in the United States, where, Page and Gilens note, “government policy . . . reflects the wishes of those with money, not the wishes of the millions of ordinary citizens who turn out every two years to choose among the pre-approved, money-vetted candidates for federal office” (emphasis added).

Thanks to this “oligarchy,” as Page and Gilens call it, the United States ranks at or near the bottom of the list of rich nations when it comes to key measures of social health: economic disparity, inter-generational social mobility, racial inequality, racial segregation, infant mortality, poverty, child poverty, life expectancy, violence, incarceration, depression, literacy/numeracy, and environmental sustainability and resilience

The Democrats are every bit as corporatized and sold-out to the financial plutocracy and its military empire—to the capitalist class and system that emerged out of national development under the rule of the propertied elite the founders worked so brilliantly to protect—as the Republicans. This is thanks in part to the outrageously outsize role that big-money campaign contributions play in determining the outcomes of the nation’s evermore absurdly expensive elections.

And that role is traceable at least in part to the U.S. Constitution. The ridiculously worshipped Founders created the Supreme Court as a critical appointed-for-life check on the popular will. And in two landmark decisions, Buckley v. Valeo(1976) and Citizens United(2010), the high court has ruled that private campaign contributions are “free speech” and that there are no “constitutional” limits to be set on how much the rich and powerful can invest in the giant organized bribery project that is U.S. campaign finance.

As the U.S. Supreme Court Justice Louis Brandeis is supposed to have said in 1941, “We must make our choice. We may have democracy in this country, or we may have wealth concentrated in the hands of a few, but we cannot have both.”

Protecting and expanding “wealth concentrated in the hands of the few” was the central purpose of government as conceived by the nation’s idiotically honored Founders.  They brilliantly constructed a charter, a set of rules for national policy and politics, designed to advance that purpose.

Left Electoral Dreaming

Let’s imagine that voters were still somehow able to get a domestically progressive and egalitarian, social-democratic Democrat—imagine a younger, more telegenic and gutsier Bernie Sanders (who damn near made it even at his advanced age in 2016)—into the White House. How much difference would it make? Besides the obstructionist hell he or she would catch from the corporate media and the blockage he or she would face from the Supreme Court, he or she would likely face steady, additional, potent “check and balance” impediments from corporate-captive Republicans and Democrats in Congress.

Along with corporate media ownership and big-money campaign-finance power – both among the many interrelated oligarchic outcomes of the capitalism brought to us by the propertied elite that the founders/framers carefully and skillfully safeguard from the populace in the name of “popular government” – the over-representation of right-wing rural states in the U.S. Senate militates against a progressive takeover of Congress. So does the widespread systematic gerrymandering of districts in the House of Representatives.

Want to form a politically relevant and more genuinely progressive and egalitarian third party beyond the radically regressive and reactionary Republicans and the dismal, dollar-drenched Democrats? The founders’ holy charter is not on your side. It encourages winner-take-all, first-past-the-post elections tied to specific geographical district lines. There’s no provision for proportional representation to accommodate and make legislative room for third or fourth parties not yet miraculously ready to compete and win pluralities in their relevant electoral jurisdictions.

Around the planet, constitutions do not last very long. As Zachary Elkins, Thomas Ginsburg and James Melton noted in their book, The Endurance of National Constitutions (2009), “The mean lifespan [of national constitutions] across the world since 1789 is 17 years. … [Since] World War I, the average lifespan of a constitution … [is] 12 years.”

The U.S. is different. Its absurdly venerated and purposefully democracy-disabling Constitution has remained in place with occasional substantive amendments for 230 years. We’ve bowed down and prayed to the ridiculously fetishized, openly anti-democratic U.S Constitution for as long as I can remember.

Simon Says Suicide

It’s pathetic and self-destructive. Trying to advance democracy and protect the common good under the procedures of a slaveowners’ charter designed precisely to cripple and prevent popular self-rule and to protect and advance oligarchy is a fools’ game.  The rules of the game were written to guarantee popular defeat a very long time ago. It’s long past time to stop playing by those rules altogether – and to write a new rule book, a people’s constitution.

Surrender is not an option, however, given capitalism’s Constitutionally-encouraged war on the common good, with its now evidently grave ecological consequences.  In our struggles to save humanity and other sentient beings from the ever more imminent fate of capitalogenic Geocide, we must demand a new national charter, committed to the Holy Founders’ ultimate nightmare: popular sovereignty in defense and advance of the commons, broadly understood.  Playing “Simon Says” with Virginia slaveholders and merchant capitalists and their clever statesmen from the 1780s is mass suicide in 2018.

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Paul Street’s latest book is They Rule: The 1% v. Democracy (Paradigm, 2014)

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