Since 2016, there has been no shortage of arguments that liberal democracy is in decline. Democrats and progressives point to the role of money in politics, to neoliberal policies that have exacerbated socioeconomic inequalities, and to multiple attempts at disenfranchising large portions of the poor and people of color. Republicans, conservatives, and many liberals argue that democracy has been threatened by too much popular control. Respected mainstream media outlets have published articles with titles such as: “It’s Time for the Elites to Rise Up Against the Ignorant Masses” and “Democracies End when They are too Democratic.” All of these arguments, regardless of whether they are put forward by progressives or conservatives, make the same assumption: that at some point in the past, democracy worked. Anyone even slightly familiar with history knows how erroneous this is. Liberal democracy was never meant to represent the interests of the masses. The system was built by the elites and for the elites.
Progressives believe that liberal democratic decay is a product of too little democracy, while conservatives believe that the problem is too much of it. However, both progressives and conservatives use the U.S. Constitution as their trump card, accusing the other side of misunderstanding or misrepresenting the Constitution and distorting its democratic character. Indeed, there is nothing as quintessentially American as the American Constitution, and it is used and abused in the fiery and patriotic speeches of politicians and political pundits with the fervor of Catholic priests. Just as the veneration of the Bible was used to keep the masses poor and oppressed, the Constitution has been used to keep working people from political and economic power. The Constitution is a document that enshrines class warfare of the propertied few against the property-less many. Its goals have always been inherently anti-democratic and reflected the wealthy elites’ fear of the “unwashed masses.” Considering its original purpose, it is not surprising that the Constitution has been historically used as a justification to oppress and punish dissidents, people of color, and the poor. Those of us who fight for radical democracy, therefore, must see the Constitution for what it is: a conservative, anti-democratic project. Below, I outline three ways in which the Constitution was designed and continues to limit democracy and maintain the supremacy of wealthy white elites. First, the Constitution was explicitly designed as an anti-democratic document, meant to protect the wealthy few from the democratic aspirations of working people. Second, the Constitution’s defense of private property was closely linked to its unapologetic defense of white supremacy. Finally, the Bill of Rights, by granting a few civil liberties in a highly unequal society, creates an illusion of freedom and equality while reinforcing unequal participation and influence in political life.
The Constitution: A (Ruling) Class Project
The American Constitution was, first and foremost, a class project intended to provide the utmost protection for private property, to deprive American voters of any control of their lives within the economic sphere, and to protect wealthy property owners and employers against the majority, who owned nothing. And the framers of the Constitution didn’t even hide their goals. James Madison made the intent of the Constitution very clear in Federalist Paper No. 10, one of the most widely read Federalist papers written to convince opponents of the necessity of replacing the Articles of Confederation. It was meant to protect existing inequalities, which, Madison argued, were the natural result of “different and unequal faculties of acquiring property.” He was concerned that if elites did not take necessary precautions, the poor would revolt against the wealthy.
Federalist Paper No. 10 is most often remembered as the Federalist paper that warns against the evils of factions. But Madison was very clear about which factions he found dangerous: “The most common and durable source of factions,” he wrote, “has been the various and unequal distribution of property. Those who hold, and those who are without property, have ever formed distinct interests in society.” If the new Constitution is not ratified, Madison warned, the poor will organize around such “improper or wicked project[s]” as “an abolition of debts, [and] an equal division of property…” Indeed, this was not an imaginary fear. Shays’ Rebellion – a violent uprising in Massachusetts by farmers who opposed property foreclosures and other measures meant to rob them of their already scarce resources – was one of the main events that triggered the Constitutional Convention. Madison argued convincingly that the only way to prevent the poor from taking over was by forming an “extended” (large) republic. The creation of a republic was meant to make the country less democratic, to prevent the masses from participating in important decision-making processes, and the size would ensure that the majority (workers and farmers) would not discover their “common motive” or “their own strength” and would find it difficult to “act in unison with each other.” Considering its anti-working-class and anti-democratic foundation, it is no wonder that during the early twentieth century, the Constitution was used by the courts to overturn legislative attempts to regulate wages and working conditions, denying workers, including children, protection in the marketplace. The liberty of contract doctrine, extrapolated by the courts from the Fourteenth Amendment, dictated that working conditions should be decided through voluntary agreements between employers and employees. These court rulings were clearly undemocratic, but they were consistent with the spirit of the Constitution. They accepted existing socioeconomic inequalities as natural and worked hard to preserve them.
One of the biggest ironies of our “democratic” Constitution is that it does not actually give people the right to vote, so it is hardly surprising that initially, only propertied white males were enfranchised. This was eventually expanded to reflect the economic and security concerns of ruling elites, and then restricted — through various rules and regulations — to prevent the poor, immigrants, and African Americans from voting. The original Constitution included no mention of citizens’ right to vote, and only the propertied few were allowed to participate in national electoral politics at the time, yet so great was the Founding Fathers’ fear of and distaste for working people that they included various safeguards in the Constitution to limit any potential deepening of democratic rights. To prevent the masses from electing senators — some of the most prominent members of the federal government — this power was originally delegated to state legislatures. This only changed in 1913, with the passage of the Seventeenth Amendment, which allowed for direct election of senators. The founders were similarly worried that given a choice, people will elect a “demagogue” or someone deemed “unqualified” by the elite (concerns that remain only too common among elites today), so they introduced the Electoral College, but even this was not enough. The Constitution left methods by which electors were to be chosen to represent states. The electors were not expected to cast their vote in accordance with the popular vote within their state but to deliberate and select the best candidate for the presidency. As Hamilton explained in Federalist Paper No. 68, “the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government, who shall assemble within the State, and vote for some fit person as President.” Today, even though the Constitution does not require electors to vote in accordance with the popular vote, it is rare that they do not. However, the winner-take-all apportionment of electors in all but two states makes it possible for the presidential candidate with most popular votes to lose the election, as happened several times, most recently in 2000 and 2016. Some argue that such undemocratic practice violates the democratic spirit of the Constitution. In truth, whatever democratic spirit lived in this land at the time of the American Revolution did not make it to the Constitutional Convention. The main goal of the American Constitution was to curtail democratic sentiments, practices, and aspirations.
The Constitution and White Supremacy
While white supremacy was firmly established by the Constitutional Convention of 1787, the Constitution reaffirmed its principles. It is no surprise that the abolitionist William Lloyd Garrison famously proclaimed that the Constitution was “a covenant with death and an agreement with hell.” While slavery was not mentioned in the Constitution, three points in this (exceptionally short) document dealt directly with the subject. According to the Three-Fifths Compromise, 3/5 of the slave population of each state was counted for the purpose of taxation and representation, augmenting the power of slave states and reasserting the status of Black people as private property. The Fugitive Slave Clause of the Constitution stated that: “No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.” The Constitution’s stability and longevity has often been credited to its lack of explicit policy, but the Fugitive Slave Clause was one of the very few exceptions to this rule. Consistent with the spirit of the Constitution, rights of the wealthy to private property — in this case actual human beings — took precedence over the rights of people. Finally, the Constitution stated that the international slave trade, delicately referenced as “the migration or importation” of human beings, would not be prohibited until 1808. Given this, not even the most generous reader of the Constitution could call this document emancipatory, pro-democratic, or even humane.
It is telling that Buchanan v. Warley (1917) is considered the first civil rights victory in Supreme Court history. The case involved an ordinance in Louisville, Kentucky, which made it unlawful for non-whites to occupy a house on any city block on which the majority of the occupants were white. The court ruled that this ordinance violated liberty of contract and right to property – whose sanctity the court clearly considered more important than protecting white supremacy laws. Since the doctrine of white supremacy is intimately tied to property rights and its intent is the preservation of racial hierarchies to prevent the working class from uniting together against the common enemy, laws that defend white supremacy at the expense of private property are unlikely to survive legal scrutiny. The case, therefore, was not so much a win for civil rights; rather, it simply reaffirmed the sanctity of private property above all else.
The Bill of Rights, Procedural Equality, and the Status Quo
The Bill of Rights is perhaps the best-known part of the Constitution, even though it was ratified three years after the main document. It guarantees such liberties as freedom of speech, assembly, and religion, and the right to due process. However, while the inclusion of the Bill of Rights was progressive for its time (i.e. within the confines of the bourgeois revolution), it actually represents a list of liberties rather than rights (with the right to jury trial being one notable exception). Despite its name, the document doesn’t include a positive obligation on behalf of the state to ensure the ability of all people to take full advantage of their status as active democratic participants, nor does it assure — through guarantees of economic, social, and political rights — their full membership in the political community of the country. This difference is important: it illustrates, perhaps better than any other part of the Constitution, the ideological foundation of the U.S. political system. The Bill of Rights does not grant people the right to vote, nor does it affirm their right to health care, housing, food, employment, or anything else without which one’s very survival is constantly in danger and without which human dignity cannot be secured. It restricts government intrusion on people’s basic freedoms but does nothing about the lack of freedom that exists in the private sphere, which naturally translates into inequalities in the public sphere as well.
Furthermore, without having access to basic social, economic, and political rights, people cannot take advantage of the civil liberties guaranteed to them by the Constitution. For instance, few unemployed or homeless people, or people suffering from food insecurity or preventable illnesses, can fully appreciate their First Amendment rights. This damages democratic participation. Worse, the Bill of Rights creates an illusion of freedom and equality, providing wealthy elites with an opportunity to affirm their inherent superiority and justify excluding vast numbers of working-class people from democratic participation.
The Bill of Rights makes us all equally free, they can say, but look at what these people have done with their freedom! Then elites, whose wealth is directly proportional to the poverty of working people, look at the American masses, with their opium addictions, obesity and diabetes, poor education, bad teeth, and unpolished manners and ask: How can we allow these animals to choose something as important as our political leaders? And democracy, already barely visible, is further curtailed to ostensibly save the people from themselves. This assault on democratic aspirations is not an aberration or an ailment of current times; it is a logical and intended outcome of our political system, enshrined in the Constitution.
When working people did use their First Amendment rights to challenge the system, elites were quick to explain that they must have misread the Constitution and that the First Amendment was not meant for the likes of them. And so Charles Schenck, General Secretary of the Socialist Party, was sent to jail for distributing leaflets urging resistance to the military draft during WWI. And Eugene V. Debs was sentenced to ten years in jail for an anti-war speech. The much-celebrated Bill of Rights did not save Japanese Americans from concentration camps or communists and pacifists from prison.
Yet people continue to praise the Bill of Rights because, while we can dispute the merits of the Second Amendment (or argue over its interpretation), few would debate the importance of free speech in a democratic society. The Bill of Rights, however, does not exist in a vacuum. procedural equality in an unequal society will always privilege those with power, amplifying their speech and ensuring that their “due process” is more likely to result in amicable outcomes. Nathan Greene expressed the insufficiency, even absurdity, of civil liberties in an unequal world — a world in which hunger, job insecurity, homelessness, and lack of access to adequate education and health care are the norm — at the International Juridical Association in 1940: “We are for free speech in an un-smashed… world. We believe speech and the other civil liberties are meaningful only to men who dare to use them. And that before ‘daring’ come bread and water, come roots in the community, come respite from fear. Only a reasonably whole world, not a ‘smashed’ world, will ever tolerate free speech.” Civil liberties and procedural equality without civil rights to ensure that every single person can take full advantage of the former, serve to defend the status quo. They serve as a loudspeaker for the wealthy elites — a loudspeaker used to mute the masses. Long before Citizens United, there was Buckley v. Valeo (1976), which ruled that individuals had a constitutional right to spend unlimited amounts on elections. The principle of procedural equality tells us that we all have this right under the Constitution. But who would speak of this “equality” without laughter? Citizens United extended this right to corporations. Some argue that Citizens United made a mockery of our Constitution. But the fact is, the Constitution has always been a document created to defend the wealth and power of the few from the democratic control of the many.
So no, our great democratic Constitution was never democratic, nor was it created to defend existing and future democratic aspirations. We, the people, were the main target of the Constitution — not as its audience but as its unwilling subject. Of course, the Constitution has not always been interpreted in such an “ungenerous” manner. The mid-twentieth century witnessed several important democracy-enhancing decisions, including Roe v. Wade, Brown v. Board of Education I, and Brandenburg v. Ohio. But for every pro-democratic Supreme Court ruling, several new ones sprang up to correct its democratic potential. In response to Roe v. Wade, Casey v. Planned Parenthood made a mockery of women’s right to choose by allowing for a variety of taxing and humiliating restrictions, and today the right established in Roe v. Wade, even in its pathetic, watered-down form, is in danger. Brown v. Board of Education was soon weakened by a series of cases that restricted various desegregation schemes, such as bussing, and defended school financing formulas that served to promote great disparities in quality of public education along racial and class lines. It is important to note that our celebrated Constitution is quite exceptional in that it is one of the only constitutions in the world that makes no mention of education. One would have to be blind to not see the Constitution’s — and its loyal interpreters’ — explicit class bias.
What Would a Socialist Constitution Look Like?
Some say: Why throw the baby out with the bathwater? Perhaps it’s just a matter of interpretation? Couldn’t socialists interpret the American Constitution better? Couldn’t socialists use the existing document to their advantage?
Indeed, some justices and legal scholars have argued that we must view the Constitution as a living, democratic document, and its interpretation must be democracy-enhancing. A series of cases, such as Brown v. Board of Education (which ruled that segregation is inherently unequal), Griswold v. Connecticut (which established personal liberty in terms of privacy rather than property rights), and Reynolds v. Sims (in which the Court insisted on a one-person, one-vote apportionment), interpreted the Constitution in more democratic, emancipatory terms. However, at its very core, the American Constitution, with its unrepresentative electoral system — meant to distance policymaking from the people —, its protection of private property rights, and its silence about basic civil rights, is inherently undemocratic. Two aspects that a socialist constitution could borrow from the American document are its focus on process instead of policy, as well as its overall minimalism. After all, the U.S. Constitution is the oldest in the world and owes its longevity to its flexibility and ability to evolve with time. When viewed as a living — rather than rigid — document, it has the capacity to remain relevant today. But what would a truly emancipatory, democratic constitution look like?
At the very least, it would do three things: abolish private property, encourage (rather than prevent) meaningful political participation, and ensure civil rights. These three requirements are, of course, entirely interconnected. First, the abolition of private property and production for use rather than profit must be the basic components of any socialist constitution. Second, it should include the simplest possible electoral rules that would make substantial use of direct democracy and encourage greater participation in determining agendas and decision-making. Most everyday decisions, in and about one’s neighborhood and places of work and learning, must be left to local communities. In other words, a socialist constitution would promote radical democracy; it would empower the people rather than express a deep-seated fear of and contempt for the power of the people. Finally, a socialist version of the Bill of Rights would include such rudimentary civil rights as the right to quality housing, education, health care, nutrition, and leisure.
The U.S. Constitution’s undemocratic and anti-democratic content was not a historical accident, so to criticize the document for successfully carrying out its designers’ intentions would be silly. It accurately represented the interests and ideology of its architects, and it has faithfully fulfilled its purpose for over two hundred years. It is a document intended to preserve the class interests of propertied elites and has successfully served the interests of the few, at the expense of many. It is the document representing the ideology of capital and white supremacy, and it is telling that bourgeois politicians from both ruling parties continually go to great lengths to portray themselves as its most faithful followers. Instead of blindly defending our own oppression, it is time to fight for a truly democratic people’s Constitution — a constitution that embraces the power of the people rather than shuns it.