Fwd: American constitution above debate

Doug Henwood dhenwood at panix.com
Fri Feb 18 10:38:46 PST 2000


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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