Le Monde diplomatique
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February 2000
DEMOCRACY IN A STRAITJACKET
American constitution above debate
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In a few weeks the US primaries will have eliminated most of the
presidential hopefuls. But money and fame count more than statements
of policy. The economy is experiencing the longest period of growth in
its history - at the price of an equally historic trade deficit. Yet
the basic problems (political corruption, record number of prison
sentences and executions, deepening of inequality) are absent from the
debate. The constitution, seen as sacred and unchangeable, contributes
to the general apathy.
by DANIEL LAZARE *
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As Al Gore, Bill Bradley, George W. Bush, and numerous other
presidential candidates take to the campaign trail they will debate
everything from taxes to gays in the military. One thing they will not
debate, however, is the US constitution.
This is both strange and understandable. It is strange because, at 212
years of age, the US constitution is the oldest such document on
earth, and among the most resistant to change. It is therefore
seemingly most in need of a democratic overhaul to bring it in line
with the needs of modern society. In other nations a constitution is
something the people fashion in order to create a new framework for
democratic politics. In America the people are something that the
constitution has created, shaped, and moulded in its own image in
order to maintain the outlines of an 18th-century Jeffersonian
republic. It is no more natural under such circumstances for an
American to question the constitution than it is for a medieval vassal
to criticise his sovereign lord.
This is at the root of what is known as "American exceptionalism," a
phrase that originated in the US Communist Party in the 1920s, but
which has since been adopted by sociologists and political theorists
across the political spectrum. Initially, it referred to the theory
that US capitalism was so strong that it was exempt from the usual
cycle of booms and busts - an idea that proved spectacularly wrong in
1929. Since then bourgeois academics have seized on it to describe a
view of American politics and society as intrinsically different from
those of other countries because of some essential difference in
American character or structure (1). If it is indeed the case that
American politics are altogether unique, it is because they are
largely based on the framework of the constitution.
This framework also deserves more careful scrutiny because of the
exceptional breakdown in American democracy. With the possible
exception of Japan, American politics are now the most corrupt in the
advanced industrial world. To quote Republican presidential candidate
John McCain, they are "nothing less than an elaborate influence
peddling scheme in which both parties conspire to stay in office by
selling the country to the highest bidder" (2). Not surprisingly,
American voters are perhaps the most demoralised and apathetic in the
world. The 1996 presidential election was the first in which a
majority of eligible Americans did not vote - which did not stop
thousands of commentators speaking of its great significance.
If the constitution is responsible for all the good things that happen
in America (which President Clinton terms the "indispensable nation"),
is it also responsible for the bad - political corruption, crushing
weight of religion, fragility of public liberties and social
protection?
This, of course, is heretical in a society that views its constitution
as hardly less than divinely inspired. Yet a more rigorous and
unsentimental analysis than the constitution is usually accorded
suggests something quite different: rather than an instrument of
democratic self-government, it is a melange of democratic and
pre-democratic beliefs, a document filled with awkward compromises and
glaring contradictions.
Perhaps the most basic concerns the preamble, the famous introductory
paragraph beginning with the phrase, "We the People...". These three
words alone would seem to place the constitution at the forefront of a
new age of popular sovereignty that was beginning to unfold in the
1770s and 1780s. Yet the founding fathers were actually of two minds
concerning popular power. On the one hand, they recognised that the
people were the only possible source of authority in a new republic.
On the other, they were so frightened by the new force they were
calling into being that they felt obliged tie it down, Gulliver-style,
with numerous restrictions and limitations. They were so leery of a
plebeian House of Representatives, for instance, that they created a
quasi-aristocratic Senate to more or less cancel it out. (As the
modern saying has it, "The Senate kills the bad bills, the House kills
the good.") The founders created a proto-Bonapartist presidency to
offset the legislature and a lifetime judiciary to offset both
Congress and the president. As if this was not enough, they left huge
powers (including education and justice) in the hands of the
individual state governments so that they would serve as a further
check on federal power.
Because political power was inherently dangerous, the only way to
preserve liberty was to fragment authority and somehow turn it against
itself. As John Trenchard and Thomas Gordon, authors of the highly
influential "Cato's Letters," put it in the 1720s, "Power and
sovereignty ... [must be] so qualified, and so divided into different
channels, and committed to the discretion of so many different men ...
[that] their emulation, envy, fear, or interest ... [make] them spies
or checks upon one another" (3). Or, as James Madison, the "Father of
the Constitution", put it in a letter to Thomas Jefferson in 1787:
"Divide et impera [divide and conquer], the reprobate axiom of
tyranny, is under certain conditions, the only policy, by which a
republic can be administered on just principles" (4).
This is the central principle of the US constitution and hence of
American politics. The problem is that sovereignty is by definition
whole and unlimited. Thus Madison was attempting to divide the
indivisible, to turn the people against themselves so that they would
nullify their own power at every turn. The result was supposed to be a
republic of the Golden Mean, one that would discourage extremism and
promote moderation and compromise. But the reality has been the
opposite, a deeply neurotic form of politics constantly veering back
and forth between periods of stagnation and hysteria.
By surrounding slavery with legal guarantees that were all but
impossible to remove, the constitution led directly to a civil war
between New England Puritans and Virginia Cavaliers in 1861-65 that
was in many ways a replay of the English civil war of the 1640s. The
Americans may have avoided a period of Jacobin terror in the 18th
century. In fact all they did was put it off for a century, when
600,000 died as Union forces tore through the South. Once the war was
over, the federal government returned to its original lassitude,
capitalist robber barons rushed to fill the vacuum, strikes were
crushed, and Southern blacks were forced into a form of serfdom in
some respects worse than the slavery they had just escaped. If
Franklin D. Roosevelt succeeded in expanding federal authority during
the unparalleled emergency of the 1930s and 1940s, he did not succeed
in making it more efficient or comprehensible.
Since then federal politics have grown ever more incoherent due to the
crippling problem of "gridlock". As the party system has
disintegrated, the days are long gone when a single party could
control the entire federal government. Instead, with the Democrats
controlling one branch and the Republicans controlling another,
politics since the 1970s have degenerated into a form of long-term
trench warfare in which the two sides grapple for control of the
third, i.e. the Supreme Court.
In the 1980s this led to the Iran-Contra (Irangate) scandal in which
the Reagan administration, seeking to bypass a Democratic-controlled
Congress, set up a secret office in the White House basement under the
control of Colonel Oliver North to sell missiles to Iran and funnel
arms to right-wing guerrillas in Nicaragua (5). In 1995-96 the federal
government briefly shut down when the two parties were unable to agree
on a budget. A few years later Republicans got their revenge for
Irangate when the special prosecutor Kenneth Starr, a US-style grand
inquisitor, caught Clinton in a lie about his sexual relations with
Monica Lewinsky.
The results have helped undermine the very notion of democratic
self-government. As the normal legislative process has ground to a
halt, deal making has moved off-stage into hundreds of committees and
subcommittees in which lobbyists and wealthy political contributors
hold sway. As corruption has mushroomed, the political process has
grown more and more opaque, which is why tens of millions of American
voters have essentially dropped out of the political system. Yet in
the name of freedom of expression (the First Amendment), the Supreme
Court has opposed any constraint on electoral funding.
The situation is not much better in the area of civil liberties.
Because political power is seen as inherently tyrannical, US
constitutional theory holds that civil liberties can be safeguarded
only by elevating them above ordinary politics. Thus the Bill of
Rights (as the first ten amendments to the constitution have been
known since their adoption in 1791) is regarded as even more sacred
and untouchable than the original document of which the amendments are
nominally a part (6). Yet as democracy has decayed, so has the basis
for civil liberties. As a rightwing offensive has intensified, the
Supreme Court has grown increasingly cautious in interpreting the Bill
of Rights, while politicians have learned to win election by
persuading the middle class that civil liberties must be narrowed if
crime is to be reduced.
In New York, a city that once prided itself on being abrasive and
outspoken, the result is an increasingly repressive atmosphere in
which even the mildest demonstrations now meet with lines of helmeted,
riot-clad police. When "Sensation," a collection of provocative art
works owned by the British advertising mogul Charles Saatchi, opened
at a local museum in October 1999, Mayor Rudolph Giuliani, a classic
1930s-style strong man, assailed it as anti-Catholic and moved to
punish the museum by cutting off city funds. As a result Giuliani's
approval rating rose even higher.
"I would trade any day 10% of my civil liberties for a 5% decrease in
crime", one resident told a reporter a couple of years ago in
Washington Square, a once-rowdy park in Greenwich Village where video
surveillance cameras now keep watch 24 hours a day for drug dealers
and drunks (7). But why stop at 10%? Why not surrender all your civil
liberties in exchange for perfect peace?
In 1999 the US prison authorities executed 98 people, a third more
than the year before, and all indications are that the tally this year
will be even higher. George W. Bush has personally presided over 112
executions since becoming governor of Texas in 1995, while his
brother, John Ellis (Jeb), governor of Florida, has pledged to speed
up executions there as well.
Rather than the glue holding democracy together, the US constitution
seems a hollow faith tearing it apart. The more it is elevated above
the reach of ordinary politics, the more democratic politics are
lowered. And the older it grows, the more heavily it weighs on
society. Thanks to an arcane amending process, as few as 13 states
representing just 5% of the population can veto any constitutional
change desired by the other 95%. And the problem threatens to get
worse as the gap widens between demographic giants such as California
(population 33 million) and depopulated Rocky Mountain states such as
Wyoming (population 481,000).
As long as internet stocks keep rising and 30-year-old
cyber-entrepreneurs find themselves worth hundreds of millions of
dollars, Americans believe they have found the economic Holy Grail.
They see themselves as the envy of the world, a light unto the
nations. But if the Wall Street bubble deflates, they may find that
they are not the most modern society on earth - but constitutionally
among the more backward.
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* Journalist, author of The Frozen Republic: How the Constitution Is
Paralyzing Democracy (Harcourt Brace, New York, 1996).
(1) See Seymour Martin Lipset, American Exceptionalism: A Double-Edged
Sword, Norton, New York, 1966.
(2) Cited by The New York Times, 1 July 1999.
(3) In Richard Beeman, Stephan Botein et Edward Carter, Beyond
Confederation : Origins of the Constitution and American National
Identity, University of North Carolina Press, Chapel Hill, 1987, p.
76.
(4) Isaac Kramnick, Republicanism and Bourgeois Radicalism, Cornell
University Press, Ithaca, 1990, p. 263.
(5) The double illegality, which almost brought Reagan down, consisted
in Congress having explicitly refused to go on financing the
anti-communist Nicaraguan militias while Iran had an embargo on arms
sales imposed on it.
(6) The US constitution has seven articles and 26 amendments, the last
of which (the right to vote at 18) was adopted in 1971.
(7) See Felicia Lee, "Keeping Watch in Washington Square", The New
York Times, 3 January 1998.
Original text in English
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