Ditch the Constitution and Start Over: When a Government Becomes Destructive of the Rights of the People

Photograph by Nathaniel St. Clair

When in the course of human events, it becomes necessary for a people to dissolve a political system grounded on the rule of minorities over majorities, and to assume the powers of democratic self-government to which common sense says they are entitled, a decent respect for the opinions of humanity requires that they should declare why.

We hold these truths to be self-evident, that all people are created equal and endowed with certain unalienable rights, among these life, liberty and the pursuit of happiness.  That to protect these rights, we institute governments that derive their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government.

Paraphrasing those words of the Declaration of Independence, they seem uniquely fitting in a week just preceding the anniversary of their adoption 246 years ago. A week when the Supreme Court of the United States limited the power of the Environmental Protection Administration to regulate carbon dioxide pollution from power plants. The ruling in West Virginia v. EPA has many technical ins and outs that do not bar this power entirely. But it shifts critical carbon-reducing decisions to a Congress that has so far failed to act on climate. Thus, in practical effect, the court has become destructive of rights. It has undermined a vital protection for the life of people across a nation and planet already suffering and dying from a disrupted climate.

This follows a succession of recent rulings going against popular will, limiting women’s reproductive rights and the powers of states to regulate guns. Another new ruling undermines native sovereignty by placing reservations under the authority of states. Earlier decisions opened the floodgate of unlimited political donations by corporations and the wealthy, and gutted voting rights protection for Blacks and others. The prospect of a radical right Supreme Court composed of judges with lifetime appointments making such decisions for decades to come, holding back possibilities for progressive change, sends a very clear message.

The logic is absolutely compelling. It’s time not only to ditch the court as we have known it, but also the 238-year-old document that shapes what is now one of the oldest governing structures on Earth, and replace it with a system that ensures genuine rule of the people, by the people and for the people. It is time to abolish the Constitution and re-constitute what we have known as the United States in a new political form.

A conservative counterrevolution

The Constitution was explicitly designed by the framers to frustrate democratic rule. The original intent of the Constitution’s framers is clear. It shows in their own words and the document they created. Any doubt should be settled by what Noam Chomsky has called the definitive work on the topic, The Framers’ Coup by Michael Klarman, a Harvard law professor of constitutional history.

Introducing his work, Klarman writes, “ . . . I have been drawn by the view, long advanced by others, that the Constitution was a conservative counterrevolution against what leading American statesmen regarded as the irresponsible economic measures enacted by a majority of state legislatures in the mid-1780s, which they diagnosed as a symptom of excessive democracy.” Klarman quotes convention delegate Edmund Randolph: “[o]ur chief danger arises from the democratic parts of our constitutions” . . . none of the state charters had “provided sufficient checks against the democracy.”

The American Revolution unleashed genuine democratic expectations, reflected in state legislatures which sought to lighten the burden of war debts upon populations beleaguered by depression conditions following the war. The states did this by such means as – gasp! – printing paper money to cover debts instead of paying in gold and silver. When the Massachusetts legislature refused to relieve taxpayers and debt holders, people in the western part of the state closed courthouses to prevent foreclosures. Shay’s Rebellion lasted from 1786 to 1787, and was put down by military force. Klarman documents how the uprising horrified the wealthy classes and triggered the Constitutional Convention. The framers who gathered in Philadelphia in 1787 were heavily weighted to the financial and propertied classes of the U.S., many who owned property in the form of Black human beings.

The document they produced was intended to limit democratic powers through institutions such as a powerful president elected indirectly through the electoral college, a Senate that represented states rather than people, large House districts requiring a measure of wealth to gain election, and the Supreme Court. Chief Justice John Marshall later asserted the court’s power to review and overturn government decisions, to be the final arbiter of the Constitution, in the Marbury v. Madison ruling. He found enough basis in the words of the framers to justify the supremacy of courts over legislative bodies, a radical doctrine at the time.

Designed for minority rule

Taken together, the anti-democratic design of the three branches of government has ensured the disproportionate power of wealthy oligarchies through U.S. history. Thus, when the conservative majority of the Supreme Court claims they are upholding the original intent of the framers, they are being true their school. With the exception of a couple of decades in the mid-20th century when the court expanded rights that are now being withdrawn, the court has been a reactionary institution protecting established powers against democratic upsurges. The recent rulings have spurred calls to reform and expand the court. But any such moves to restructure the judicial branch of government will be obstructed by the anti-democratic nature of the other two branches.

In terms of the executive branch, the structure of the electoral college gives lopsided power to small states. Election of a president by a minority of the popular vote only happened three times before 2000, the last in 1888. Since then, George W. Bush won the electoral college in 2000 and Donald Trump in 2016 even though they drew fewer votes than their opponents. Together those two presidents nominated 5 of the 9 current Supreme Court justices. Even though Joe Biden gained 7 million votes more than Trump in 2020, a swing of only 44,000 votes in three states would have thrown the election to Trump. The tendency of Democrat-oriented voters to cluster in large metropolitan states makes more minority presidencies inevitable under the current system.

The legislative branch is similarly bound to minority rule. The structure of the Senate guarantees it. Even if the filibuster is lifted, every state no matter how large or small has two votes, so minorities can prevail. Increasing populations make elections ever more expensive, both for the Senate and House. Short of a constitutional amendment highly unlikely to be adopted, the Supreme Court’s Citizens United decision precludes meaningful campaign finance reform. While the House is potentially reformable by increasing the number of seats, politicians beholden to funders and benefitting from the status quo are unlikely to do so. Especially in a House where many members are elected from gerrymandered districts that guarantee re-election.

The current constitutional order is guaranteed to not only perpetuate minority rule, but increasingly to strengthen it. Such an order cannot stand. It will inevitably promote crisis and upheaval.

National crisis at flood stage

The United States has experienced three national crises that have profoundly changed its governing structure. Each created what might be described as a new republic. The first was the original revolution and creation of the constitutional republic in the 1770s-80s. The second in the 1850s-60s was the Civil War and events that led up to it, producing the singular union. Before the war, people said, “The United States are . . . “ After the war, they said, “The United States is  . . . “ The third was the Great Depression and World War II in the 1930s-40s, which generated a unprecedentedly powerful federal government and global U.S. leadership.

Each crisis lasted around 20 years. The time between the settlement of one crisis and the emergence of the next was roughly 60 years. William Strauss and Neil Howe have forwarded this repeating pattern as evidence for a complex theory based on the interaction of generations. They see repeated 80-year cycles composed of 4 generations each lasting 20 years – a triumphant high, a rebellious awakening, an unravelling into hyper-individuality, then the culminating crisis. The crisis period is also the name of their book, The Fourth Turning. Whatever the validity of the Strauss-Howe theory, it seems to roughly fit recent history. The years from 1945-65 were a time of U.S. ascendency, followed by the awakenings and rebellions of the mid-1960s through mid-‘80s, and then the turn to self-gratification and personal wealth accumulation that crystallized in the Reagan ’80s and characterized the Clinton ‘90s.

Arguably, the years since the early 2000s saw the onset of crisis. The Iraq War following the 9-11 attacks, undertaken on false pretenses, began to undermine U.S. global leadership. Globalization promoted by self-interested capitalists eroded the U.S. industrial base and working class. The 2008 meltdown exposed the faulty underpinnings of a financial system, kept afloat since only by a tide of essentially free money issued by the Federal Reserve. Every president in that period, Bush, Obama, Trump and Biden, has been viewed as illegitimate by large segments of the opposing party. The Jan. 6 Capitol insurrection triggered by the Trump-Biden transition is seen by many as the opening of a new civil war.

Whether or not Strauss and Howe had it right, it certainly seems we are in the culminating years of a long crisis poised to generate changes on the scale of the previous three great crises in U.S. history. It seems inevitable that a constitutional system that guarantees minority rule must crack against the growing democratic aspirations of new generations.

The rollback of rights and environmental protections by a radical Supreme Court has aspects of a crystallizing event. The Dred Scott decision which denied Black people citizenship rights and increased slaveholder power across the Union led to the Civil War. The latest decisions on guns, reproductive rights and climate could collectively represent the new Dred Scott. Particularly if elections in 2022 and 2024 consolidate rightist rule of all three federal branches, and legislation is passed that imposes such measures as a national abortion ban on blue states. That would be the equivalent of the Fugitive Slave Act, another Civil War trigger which criminalized Northerners who refused to help return escaped slaves to their owners. Before the South seceded, many abolitionists were advocating for a Northern secession. A national crisis building for most of the past two decades seems to be at flood stage, ready to overflow the banks.

No guarantees of good outcomes

There is no guarantee a massive change in the governing structure of the U.S. would produce good results. In fact, rightist forces have been pushing for a new constitutional convention for some time. Fifteen Republican-leaning states have petitioned for a limited convention to pass a balanced budget amendment. Two-thirds of states, or 34, would be required for that to happen. Meanwhile, 5 Democratic-leaning states have called for a convention to overturn Supreme Court decisions that conflate campaign donations with free speech. Claims made that a convention could be limited to one issue are belied by the reality of the first convention, which was convened on the false pretense of only amending the prior Articles of Confederation. It obviously went much further.

A convention in the absence of a progressive movement with a clearly defined agenda and power to shape convention representation would likely turn out to be a disaster, enshrining rightist rule and eliminating basic rights in ways almost unimaginable. We could get a new constitution, only to find the new boss is the same old oligarchy that wrote the first one. Any movement to change the fundamental shape of government in the U.S. in a progressive direction would have to be widespread and thoroughly grounded. That movement, while it has many potential seeds, does not exist in a coherent form today.

The urge to say goodbye

Many ask whether there should even be a United States at all. They call out the nation’s imperial history, conquering a continent, sweeping aside the indigenous, building wealth on the backs of Black slaves, and then extending what is in fact an empire around the world. Is democracy even possible in a continent-sized nation with nearly 350 million people, or will it inevitably be an autocracy controlled by gigantic, unaccountable institutions whatever the democratic trappings? An oligarchy with democratic characteristics? Is such a nation even reformable, or is some form of radical deconstruction required?

Those are fair questions, and they have spurred movements in places ranging from Cascadia and California to New England seeking some form of independence. The announcement of the Roe v. Wade reversal has produced a social media explosion of calls for Cascadia and California to go their own ways. I have respect to my friends who favor such an outcome, and deep sympathy for greater empowerment of regions and places. The closer to home decisions are made, the more possibility there is for genuinely democratic decision making.

I also regard myself as a spiritual citizen of Cascadia and a broader Pacific realm. I think we need to return to a focus on our local and regional places, and am inspired by the indigenous care for place manifested in struggles against various forms of environmental destruction. We should all, as Winona La Duke has suggested, become native to the place where we live.

But I cannot see an order that provides greater regional autonomy short of parallel changes on a national scale. I am looking for a different outcome, not in a spirit of separation, but one that creates a new basis of connection and unity.  I will briefly outline a pathway in the concluding sections.

Practical difficulties of secession

The practical difficulties of whole states or regions seceding are immense. People quickly will say this was settled in 1865, and add that the military power of the U.S. would prevent it. Any departure from the United States would require overwhelming majority support, and likely only happen through immense nonviolent civil resistance. Though substantial minorities for separation exist in every region, in no region does the idea have anywhere near that level of support. Things may get bad enough to generate majorities and a national consensus for dividing the nation, but even then there would be problems.

If states or regions moved to secede, real cultural and political divides between liberal metropolitan and conservative rural areas would quickly emerge. The divisions between red and blue states today are predominantly between those dominated by large metropolitan areas and those with larger rural and exurban populations. In my own Cascadia bioregion, there are calls to create a State of Liberty in conservative Eastern Washington counties east of the Cascades Mountains, and a movement to join eastern and southern Oregon to a “Greater Idaho.” Northern California and Southern Oregon have long had a movement to create a State of Jefferson. Would an independent Cascadia or California, whose most likely path to creation would be nonviolent resistance, use force to keep those areas? More probable would be a far more balkanized map.

States including Texas and New Hampshire also have secession movements. The Texas GOP just voted to support a secession referendum, while libertarians introduced a secession measure in the New Hampshirelegislature, though it was defeated. As with the movements in rural Cascadia, the impetus comes from the right, with white supremacist forces prominent. Secession of progressive regions would really only be possible in the context of a general breakup of the U.S. that would put many regions in rightist hands, leaving people of color, women and progressives living there in a vulnerable position. The federal system, for all its flaws, has to some extent been a guarantor of human rights. In any future arrangement, we need to preserve those protections.

De facto national break-up

In practical effect, what we are more likely to see than a formal dissolution of the U.S. is a de facto breakup where states set their own course, and cluster in blocks with other likeminded states. In that line was the announcement by West Coast states following the Roe reversal that they would cooperate to protect abortion rights and help women from other parts of the U.S. when they come to the coast seeking abortions.

Following the climate decision, the co-chairs of the U.S. Climate Alliance, 24 states committed to climate action, joined in a statement. Said Governors Kathy Hochul of New York, Jay Inslee of Washington and Gavin Newsom of California, “This ruling makes clear that the actions of governors and state legislatures are more important than ever before. Thankfully, state authority to curb greenhouse gas emissions has not changed. Today, we reaffirm our commitment to decarbonizing the power sector using our authority at the state level.”

A Supreme Court with members committed to radical states’ rights doctrines, as well as measures to hobble federal regulatory agency powers, might also promote de facto breakup by kneecapping federal authority. On the other hand, if conservatives in control of all three branches attempt to impose national legislation that overrides state powers in areas such as abortion, states might outright choose to nullify federal law and refuse to enforce it. A number of states including Missouri and Kansas have already passed “Second Amendment Protection Acts,” claiming the right to nullify federal gun laws, though they have not fared well in federal courts. States such as California have refused to cooperate with federal immigration authorities, and courts have found they cannot be compelled to do so.

A different pathway

It is clear the U.S. is in a national crisis, perhaps in its culminating stages, and that one way or another, big changes are coming. Let me offer a few final words suggesting a pathway that might produce a genuine democracy, a government of the people, by the people, and for the people.

First, an inspiration that has guided my work since the 1980s is the thought of radical historian William Appleman Williams, who envisioned a different political form for the U.S. as an alternative to our ever expanding “empire as a way of life.” Williams suggested re-creating the U.S. as a confederation of regions, each having substantial autonomy to guide their own political and economic paths in cooperative directions, with basic human and environmental rights guaranteed throughout the confederation. The historian, perhaps a bit tongue-in-cheek, even suggested we return to the Articles of Confederation, abandoning the anti-democratic, centralizing Constitution.

Anticipating how events such as we are now seeing might unfold, last year I wrote a six-part series on Williams’ thinking and how it might become practical reality beginning here.  This is the larger context I would recommend to people seeking greater autonomy for regions and states.

Yet the difficulties cited above still remain. There is no consensus for anything like secession or regional autonomy. Any attempt to create an independent regional form would quickly face the real divides between urban and rural areas, not to mention the force of the U.S. military. A new national political form might emerge that is worse than what we have today, maintaining and even enhancing the oligarchic rule intended by the original founders.

Popular assemblies to generate new consensus

All this is why we need to envision a different map, not one with lines around a distinct turf, but a web stretching across the landscape, centered on a network of hubs surrounded by spokes. We need to build power and consensus in our cores of strength, our urban hubs, and extend out to spokes in exurban and rural areas. Progressive minorities live in even in the most hardcore conservative areas, and they can gain by connection with allies in metropolitan areas.

Most importantly, as the moral and political legitimacy of national institutions diminishes, we need to build new institutions that generate consensus and moral authority based in democratic will. The keystone is the creation of popular assemblies at all levels, from neighborhoods and cities to states and regions. These new town meetings, though lacking formal political power, can gain moral authority and legitimacy by building consensus for new directions. They can work in the context of existing local and state political structures, moving them by creating a new sense of what is politically possible. Eventually, they might gain more formal political power. For now, the goal is to build the new in the shell of the old.

The beauty of this pathway is that it serves a number of ends. It builds consensus for alternative pathways in a way conventional political lobbying oriented to existing legislative bodies cannot. Local popular assemblies can create a web of connections that bridge the urban-rural divide, and create consensus for regions as a whole. Regional popular assemblies can link across the continent to build consensus for a re-constitution of the U.S. as we have known it, to create a government that, for the first time in our history, is genuinely democratic.

I understand how, facing a national crisis, this might seem like a dream scenario, and in no way urge that we divert attention from the immediate need to defeat the far right at the ballot box. The right may have overplayed its hand with the recent Supreme Court decisions, and electoral backlash may preclude rightist takeover of Congress in 2022 and 2024. But even if this happens, the structural barriers to genuine democracy written into the Constitution, and which produced those decisions, will still remain.

To resolve our national crisis, and indeed to preserve our rights to life, liberty and the pursuit of happiness, we need to ditch a governing form that is destructive of those rights, and institute a new one that protects them. Creating popular assemblies to build a new consensus, beginning in our communities, states and regions, is the practical place to start.

This first appeared on The Raven