Monday, April 30, 2012

Correspondence with Doug Vaughan about the anti-democratic character of the Constitution

The teaching of American political institutions tends to draw - though often without acknowledgement - on one of my great favorites among political and social theorists, Montesquieu. The Baron differentiates despotism and torture – used to mock Parisian institutions in the Persian Letters, but also to enshire the image of Oriental "despotism"(Marx, too) in the long trend from Aristotle to “Orientalism” (see Edward Said on the racist trends in Germanic, English and American scholarship carried to a new pitch after 9/11 and in the aggression against Iraq and the likely one against Iran) - from the rule of law

But as Black Patriots and Loyalists and the last post here show, the Federalist Papers and the constitution adopted Montesquieu, but often emphasized the worst or most reactionary features of constitutional design In the Federalist, Madison (accompanied by Hamilton who had once mainly been an abolitionist in alliance with John Laurens, but was now for the triumph of centralized commerce and John Jay, also a federalist and abolitionist) wrote of the “horrors” of the Shays rebellion 11 times. Captain Daniel Shays left his land, at Washington’s promise that the land would be there, unencumbered, when he came back, during the American Revolution, to fight the British. Washington did not tell the truth...

Many white “Patriots” served in the militias for but 10 months. In contrast, blacks in the first Rhode Island regiment, whose freedom was purchased in exchange for fighting, served for 3 years and were the best warriors on the American side, according to Baron von Closen, Washington’s advisor, the key troops – led by John Laurens and Alexander Hamilton – at Yorktown. One might also imagine Shays and others serving a longer term in the Continental army (perhaps like William the patriot who gets killed in Downton Abbey). They returned home to find their land seized by the banks (pretty much as human then – consider Mr. Potter in “It’s a wonderful life” - as Goldman Sachs, Wells Fargo and the rest of them now; one might, of course, speculate about degrees of impersonal predation…).

Stealing their lands was what the authors of the Federalist Papers were about.(h/t Randall Conrad) They invoked Montesquieu’s novel point about a large federal republic (book 9) - a federation of small republics or states - to suggest that a revolution in one section might burn itself out without support. In addition, Madison and Hamilton thought that a centralized army could suppress such democratic movements from below.

For the poor farmers were democrats and often abolitionists (during the Shays rebellion, 3 participant farmers from western Masssachusetts whom I cite in Black Patriots and Loyalists, one with the pseudonym Consider Arms, denounced the Constitution for its enshrinement of slavery (Article 1 section 2 on the slave counting as 3/5th of a vote to elect others and ensure their prominence, Article 4 section 2 barring help to escaped slaves – a response to the massive escape to the Crown during the Revolution - and article 5 extending the slave trade till 1808 (the real federalists, as a group or faction within the government, perhaps confused themselves that this would limit the growth of slavery and set it on a declining course…).

Imagine, these farmers said, that your daughter goes to the brook to fetch some water for you and is stolen by slave-traders, and sold into slavery far away all the days of her life.

This constitution enshrines this practice, these farmers said. It cannot be mine. Thoreau echoed them and John Brown and others acted on this thought. The constitution of the slave-owners, in this respect, cannot be ours…

This way of thinking is what John Rawls in A Theory of Justice names putting oneself in an original position. One imagines oneself as possibly being the least advantaged (empathizes with that person, puts oneself in his or her shoes), and rules out institutions which are not cooperative towards – fair towards – everyone. Justice as fairness or democratic contractarianism is, as Rawls once said to me, the moral theory of the American Revolution as this thought, widespread in the abolitionist objection to bondage, illustrates.

The Federalist Papers are named for Hamilton and Jay, famous New York federalists. Madison, a Virginian and a slave-owner, cooperated (he would form the Democratic-Republican Party, the party of the South, a decade later). But the debate is misnamed. The so-called Anti-Federalists wanted the democratic power of state legislatures and the so-called Federalists wanted centralized power.

At courts which would dispossess farmers or such legislatures as in Massachusetts and Rhode Island, the armed forces of the Shays rebellion, soldiers of the Revolutionary War, could go and demand forgiveness of debt: to keep their small plots of land. Theirs was direct, democratic influence on the legislatures, citizen to citizen, countering the ordinary power of the rich.

After many political victories, the banks could suppress them only with a ragtag army drawn from Harvard and the Boston elite, led by later Congressman Harrison Gray Otis (reactionaries from Harvard actually went to fight in those days, unlike William Kristol, happy to blow up others with his words – the voice today of the neocons and political Straussians in Washington…)

Otis denounced the Shays' rebellion as "democratic disorganizers," prefiguring Samuel P. Huntington who stigmatized a "democratic distemper" - the anti-War movement, civil rights and the union movement in the 1970s.

Following Montesquieu, the constitution meant to establish a national army to suppress the people more effectively. The so-called Federalist Papers are thus deeply anti-local or state power. They are sophisticated, often brilliant, in institutional design, but frequently for reactionary purposes. Federalist 54 on slavery, for example, is hard to read because the bad faith involved in treating slaves as three-fifths human was known to Madison. He dares to speak of "the great propriety" of the constitution, when his words and actions betray it:

"…But we must deny the fact that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is that they partake of both these qualities; being considered by our laws, in some respects as persons, and in other respects, as property. In being compelled to labor not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another—the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others—the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property. The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied that these are the proper criterion; because it is only under the pretext that the laws have transformed the negroes into subjects of property that a place is disputed them in the computation of numbers; and it is admitted that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants…."

As Madison's colleague Patrick Henry put it more frankly, “slavery is abhorrent, but I can’t live without it.”

Henry’s motto names what is awful about the American constitution.

My friend Doug Vaughn, an independent journalist who is also a lawyer, captures the reactionary quality of the constitution. The Senate which enshrines the pathetic Max Baucuses and Mitch McConnells of this world, licenses the few to block a common good. That is the central point of Doug’s letter below, and it is visible in the destruction of the decent measures – over a hundred and fifty – adopted by the Nancy Pelosi-led House in the 2008-2010 session. The Senate and the electoral college are the bad joke which the slave-owners played on the rest of us – and the amendments after the Civil War created more equal rights but did not abolish these reactionary institutions.

In addition, the Thirteenth Amendment permitted the enslavement of prison labor – and in Douglas Blackmon's Slavery by Another Name under segregation, and today, as Michelle Alexander reveals in The New Jim Crow – these practices continue. America today imprisons 2.3 million, 25% of the world’s prisoners – and has 5.1 million more on probation. The United States is by far the largest police state in the world and its origin is in the power of the slave-owners in the Constitution. Doug is right that this needs to be defeated and every point he makes about the odious limitations on the suffrage, the anti-democratic character of elections to the Senate, originally by state legislatures, or the enshrinement of the Ku Klux Klan as the leaderhsip of the South in the "election" of Hayes (the "compromise" that ended Reconstruction taking place far from the people in the House of Representatives) are very important. These were or are all practices that need(ed) and need to be abolished.

But as Montesquieu puts it in book 11 of the Spirit of the Laws, there is another aspect to the separation or balance of powers. Such separation bars "the question" (that was what torture was called in the Inquisition, predecessor to Cheney and Bush). The idea is to prevent a deficient, will of all democracy - one which betrays a common good or a general will - from murdering or torturing questioners (the murder of Socrates, the Palmer raids, Truman-McCarthyism and the like), suppressing dissent, and destroying freedom of speech (and the Bill of Rights). Madison and Jefferson, paradoxically, drafted the Bill of Rights, Ironically, they were good on other basic individual rights aside from slavery, a terrifying contrast.

Freedom and democratic dissent (and even revolutions like the Shays Rebellion for Jefferson - those that would "water the tree of liberty every twenty years with the blood of patriots and tyrants" - but not the great slave revolt in Saint-Domigue that created Haiti and certainly not the democratic uprising of Jefferson’s slaves) must be protected or defended against tyranny - executive or commander in chief power. A constitutional division of powers is an important way to do this.

The first such measure was the Bill of Rights. The second was the creation of an independent judiciary whose only justification is to defend equal basic individual rights (basic: the right to private property is subordinate to such rights; if inequality of property leads to oligarchy and the perversion of basic rights, it is, as John Rawls suggests in his priority of the equal liberty principle over allowable inequalities, barred).

The creation of serious judicial review, however, was the result of John Marshall’s chief justiceship more than the constitution itself (in a self-contradictory fashion, even the practice of judicial review might be ruled out by the flaky "original constructionists" who seek to tear down every aspect of American liberty to enshrine a Guantanamo-like police state, one which battens off racism at home toward black and brown young men – see again Michelle Alexander, The New Jim Crow).

Judicial review can defend such rights, as in Brown v. Board of Education and other decisions (it is this that the “original constructionists” – Scalia, Thomas, Alito and Roberts – hate). It can also, as in the Dred Scott decision or the decisions against unions, operate against equal individual rights like freedom and freedom of association.

When it affirms basic rights, the Supreme Court fulfills its function as what protects Americans against tyranny. Such decisions exemplify the desirable separation or balance of powers.

When it affirms concentration camps for Japanese-Americans under FDR in World War II, it is but a rubber stamp of tyranny, a perfumer of lynch-mobs, and does the opposite. It is quite often the “court” of sycophants to the rich, the powerful, the slave-owners, the bigoted, those who care not for liberty or the Bill of Rights. It is then in love with tyranny. And that is the Roberts-Scalia court which endangers all of us.

So we need to fight not only for democracy but for the rule of law – for habeas corpus and against Guantanamo, against racism, against the legislation outlawing marijuana (prohibition of alcohol was awful in its effects; why should the ban on marijuana be better? In addition, alcoholism is now widespread; marijuana is nothing like alcohol in whatever bad effects are fantasized about it, and the war on drugs has wrecked Mexico), for the Bill of Rights taken seriously and extended to social rights (the right of each individual to higher execution without debt slavery, the right to health care, the right to a reasonable pension, the right to a decent minimum income). A debate about a democratic constitution, as Sandy Levinson has often suggested, needs to be taken up widely if America is to survive in this period. It is a task which will be up to Occupy because the elite – Obama in certain ways excepted, in certain ways an accomplice - is pretty unified in undermining that survival.

Here is Doug’s letter:

"Dear Alan,

Duly noted and well-argued [see here], but even in these exchanges and commentaries you might want to explain, since most people are blissfully unaware of the anti-democratic details of our republican Constitution; it therefore bears repetition that the scheme gave state legislators the power to set qualifications for office and rules restricting the right to vote.

These included restrictions based on language, ethnicity or race, gender and property such that the right to vote or to hold elected office were restricted to only European, not Native American or African-born persons or later Asians, and mostly English-speaking males, not females, over age 35 and registered as owners of property (especially land but including other persons, therefore also including those held in debt-bondage as indentured labor for a term of years, usually 7 but sometimes renewable for longer periods).

State legislators, in turn, elected 2 such persons per state to the US Senate, where seats were not apportioned according to population; slave-holders received disproportionate power in the House by virtue of the repugnant 3/5 rule you cite, but state those fractional persons still could not vote -- they were 'represented' only by their owners and only as if they were 3/5 human -- until their own rebellion secured rights as humans by the amendments passed by the truncated legislatures in the wake of the Civil War that broke the power of the slaveholders, at least temporarily, and barred them from holding office or voting. Until then, candidates for President were elected not by popular vote, even with restricted suffrage, but indirectly by vote of electors from each state; if this Electoral College could not come to decision, the House would determine the victor as illustrated by the election of Hayes over Tilden by a single-vote margin in the House as part of the compromise that ended Reconstruction in 1876, and the withdrawal of federal troops that had guaranteed the equal protection and civil-rights amendments, a vacuum into which the armed violence of the paramilitary force of the land-holding aristocracy of former slave-owners became the exclusive violence of the state(s) to enforce new forms of debt-bondage of labor to the land and legal resrictions on the former slaves' right to vote and hold office.

This violence, state-sanctioned and state-sponsored, is the single most important reason that the Senate remained a bastion of reaction even after suffrage was formally extended through the Jacksonian period to other white males, with fewer restrictions based on property, beyond the emancipation and prohibition of slavery (13th Amendment, 1865), the extension to former slaves of equal protection of the laws and apportionment [of representatives] by population (14th Am.) and right to vote (15th, ratified 1870), still specifically excluding Indians and women; and even the election of the Senate by popular vote (17th, 1913) restricted to males and still disproportionate to population until the present despite female suffrage (19th, 1920) and the civil-rights legislation extended by the courts to the states via the Equal Protection clause in the 1960s.* The Senate and the Electoral College remain the two bastard offspring of convenience and necessity in the formation of the republic in rebellious war against empire, and in its bloody transformation in continuous rebellion of slaves against the slaveholders thus compelled and provoked to themselves rebel in secession, and by giving greater weight to the votes of less populous states, continue to drag down their incestuous union.

The denial of facts, reality, history by the current crop of hypocritical and casuistical proponents of "original construction" and "original intent" now ensconced in the judiciary, the legal profession, and the commentariat includes most significantly the denial of the role of organized violence, sometimes extra-legal but more often legalized violent suppression of the democratic instinct of every person to claim an equal right, an individual political will derived from biology (that is, if you prefer from our "Nature and Nature's God") that must by definition and the laws of empathy as well as entropy become universal. The democratic impulse toward universal, equal, human rights demands the abolition of the Electoral College to be replaced by direct election of the President by popular vote of the whole electorate, and the abolition of the Senate with direct election of a unicameral legislature by equally apportioned districts.

Best wishes,

*As if on cue, Reince Priebus, head of the "Republican' (more aptly imperial-authoritarian-racist) national committee, proclaimed:

"For centuries our electoral process is based on one person, one vote, and for anyone to politicize the issue reeks of desperation and represents the worst in modern politics,' Mr. Priebus said." (New York Times, April 30, 2012, p. A11)

One man one vote is an egalitarian principle of the 1960s...It is the right principle but hardly a centuries-old American constitutional one.
And this, from the party which has just now passed laws disenfranchising the old, students, the poor and especially blacks and chicanos in the upcoming election.

Denial - a possession by intense, in the unconscious racism - is what, sadly, marks this party...

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