America’s History and The Constitutional Hoax
Is it conceivable that this document so revered was conceived in
perfidy and that its primary purpose was the installation of a powerful
moneyed oligarchy, that it was neither created by “We the people,” nor
designed to serve them? As historian Woody Holton observes, “It is an
unsettling but inescapable fact that several of the principal authors of
the U.S. Constitution, which has served as a model for representative
government all over the world, would never had made it to Philadelphia
if their constituents had known their real intentions” (Holton, 181).
What were their real intentions? Let’s go back to the beginning and find
out.
As relations between the colonies and England began to deteriorate, the colonists realized that they needed to coordinate their response to English hostility. So they called a meeting. The first Continental Congress met on October 26, 1774, in Philadelphia, followed in 1775 by the second Continental Congress. On July 2, 1776, the delegates unanimously passed the Declaration of Independence. Thirteen colonies became thirteen independent states, the United States of America. The Continental Congress was its governing body, raising money and troops for the war, sending envoys to Europe, negotiating treaties, overseeing the day-to-day progress of the war.
In mid-1776, the Congress began drafting the Articles of Confederation. An approved version was sent to the states for ratification in late 1777. The formal ratification by all 13 states was completed in early 1781. The thirteen states had a duly constituted government and a constitution.
The Articles of Confederation provided for a unicameral legislature, with each state having one vote. Delegates were appointed annually by state legislatures and could not serve for more than three out of any six years. A committee of the Congress was authorized to appoint one of its members to preside as president. No person was allowed to serve in the office of president for more than one out of any three years.
Article III of the Articles of Confederation read, “The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare.” The Confederation is a “league” of independent states based in friendship, something like the United Nations, today.
The Treaty of Paris, signed in 1783, officially brought an end to the war with England and recognized the sovereignty of the United States. There was a general consensus that the Articles of Confederation needed to be revised. But there was little agreement as to what new powers should be granted.
In September of 1786, a committee of five states—under the chairmanship of Alexander Hamilton—met in Annapolis to discuss ways the Continental Congress could be empowered to exercise some more control over foreign and domestic commerce and to find the means to raise the money it needed to pay its debts.
There was a second gathering in Philadelphia, known to posterity as the Constitutional Convention. It convened on May 25, 1787. Each of thirteen states sent their delegates. These were men chosen for their reputation and visibility, in other words, members of the oligarchy: prominent lawyers, wealthy merchants, landed aristocrats, speculators in bonds. Wrote “Cornelius,” of Massachusetts, in December of 1787, “I conceive a foundation is laid for throwing the whole power of the federal government into the hands of those who are in the mercantile interest” (Beard, 306).
The delegates to the Constitutional Convention were only authorized to amend the Articles of Confederation. The Massachusetts state legislature was very specific in stating that its delegates were being sent to the convention “for the sole and express purpose of revising the Articles of Confederation” (Main, 115). The New York delegation had been given similar instructions. Two of the delegates left the convention in protest when they saw what was happening.
There was a small minority who stood behind the “New Jersey Plan,” proposed by William Paterson of New Jersey, who declared, “I came here not to speak my own sentiments, but the sentiments of those who sent me’ (Holton, 199–200). His was very much a minority viewpoint. His proposal was a practical and viable means for modifying the Articles of Confederation, while simultaneously addressing the issues that had brought the conclave together.
Instead, the delegates held secret, closed-door sessions and wrote an entirely new constitution. According to Madison’s Notes, the exact language of the secrecy rule was that “nothing spoken in the house be printed, or otherwise published or communicated without leave.” Madison seems to have taken the vow of secrecy to the limit. His copious Notes weren’t available until after his death despite numerous requests that he make them available to help in constitutional interpretation. There were thick drapes over closed windows in Independence Hall during the hot Philadelphia summer. Benjamin Franklin was provided with a chaperon lest he babble a little after a few glasses of wine.
Frederic C. Howe (1867–1940) was a longtime activist-politician who served on the Cleveland Frederic City Council and eventually became an Ohio state senator. He started out his political career as a true believer. Gradually he became disillusioned with the American system of government.
Tiger at the gate
The Treaty of Paris was signed in 1783, thus bringing to a formal conclusion the war for independence, a war fought by the small farmer on behalf of the merchants and speculators who were its predetermined beneficiaries. The economy was depleted by the war effort. The nation’s output had plummeted. What ensued was a depression that some have compared to the conditions in the 1930s. “ . . . Few households were able to scrimp enough to make up for what they lost when their young men exchanged wheat and tobacco fields for battlefields. Many plunged deep into debt” (Holton, 27).
There were loans from France and Holland that needed to be paid off. Returning officers were waiting for their pensions. Speculators who held state and national war bonds wanted to be able to redeem their bonds and collect interest on these bonds at full face value.
British merchants were not feeling especially charitable towards their former colonies and hence demanded payment in species (gold or silver) for all purchases. Paper currency was deemed unacceptable. U.S. merchants in turn demanded species payment from the small farmers. Gold and silver were in short supply. Farmers who were heavily in debt petitioned for paper currency as a means of paying what they owed. Something had to give. And give it did.
But the class inequalities which became manifest at the time the Constitution was being written were in place decades before the revolution. And those without privilege were developing a political will. They were expressing themselves at town meetings and taking action. “At these meetings,” complained one of the well to do, “the lowest Mechanicks discuss upon the most important points of government with the utmost freedom” (Fresia, 29). Gouverneur Morris, one of the primary authors of the Constitution, made a similar observation. Morris lamented the fact that “the mob begin to think and reason. Poor reptiles! . . . They bask in the sun, and ere noon they will bite, depend upon it” (Barber, 17).
In Philadelphia, in 1772, mechanics and craftsman set up their own political organization, the Patriotic Society, with the purpose of promoting their own candidates for office and their own agenda. The small subsistence farmers were equally as proud and independent. There was a strong sense of community and cooperation. Farmers helped each other out in times of need and joined together in times of celebration.
This in a nutshell was the problem. The lower class had access to forums where they could participate in the political debate. Shifting the political debate to a remote central location, inaccessible to the local citizenry, would bring such presumption to an end.
Taxes after the Revolution were higher than before for those who could least afford to pay them. Taxes were needed to pay off the various debts, much of it to speculators who owned state and national bonds. In Hampshire, Massachusetts, between 1784 and 1786, thirty-four percent of the male population over sixteen were hauled into court for non-payment of debt. They were crammed into jails under abominable conditions. Some died. Their land, livestock, homesteads were confiscated.
The oligarchy made up of wealthy merchants, landowners and speculators were being forced to choose between two alternatives. They could agree to issue paper money and accept it as a means of settling debt. This would have eased the economic situation for the vast majority and put the domestic economy on a more stable basis. It also would have had the effect of neutralizing their power and ultimately reducing their wealth.
Or the oligarchs could insist on payment in species for all debt and insist on redemption of bonds at full face value. Once they chose the second alternative, they would obviously need a powerful central government to enforce their wishes.
It is certainly not surprising that under these circumstances when those of modest means were driven out of their homes and off their lands that they responded with their rifles. By the end of 1786, some nine thousand militants had taken up arms in Maine, Vermont, New Hampshire, Massachusetts and Connecticut. By mid-1787, the uprisings had spread to Pennsylvania, Virginia, South Carolina, Maryland and New Jersey.
The best known uprising occurred in western Massachusetts under the leadership of Daniel Shays, a veteran of the war for independence. He organized a following of one thousand men and marched on Boston. Merchants organized an opposing army. Shay and his men were routed.
It is important to remember that these uprisings were not directed at government per se or with an eye to taking someone else’s wealth. The insurgents had as their sole purpose to hold on to what they had so they could have a roof over their head and food on the table. Armed men would interrupt court proceedings or turn their rifles on local constabulary who were trying to take what was theirs.
In the midst of this political unrest, on May 25, 1787, the Constitutional Convention held its first meeting. It is not hard to imagine what the oligarchs had on their minds. They needed to 1) suppress rebellion and 2) and crush democracy.
In reflecting upon the Constitution, in trying to understand the nature of the government that it established and those who collaborated in its creation, it is important to put aside for the moment, the first ten amendments, known as the “Bill of Rights.” It is important to put them aside because they are not an integral part of the founding document and in some ways conceal its true intent.
On December 15, 1791, Virginia became the tenth state to approve ten of the twelve amendments to the original Constitution, thus giving the Bill of Rights the two-thirds majority of state ratification necessary to make it legal. The Constitution itself was ratified on June 21, 1788. Thus, for three and one half years there were no guarantees of civil liberty. For three and one half years, the government, as originally designed, stood free of any modifications, revealing to the world the true intentions of its Framers.
There was considerable pressure from within the Convention and from without, during the debate that preceded ratification, to include a Bill of Rights. A declaration of civil rights was included in state Constitutions like that of Virginia and Pennsylvania. Thus, the exclusion of such guarantees was a deliberate choice by a core of powerful oligarchs. Alexander Hamilton spoke for six hours at the Convention in favor of establishing a monarchy. He wanted a strong, central, consolidated government that could exercise its power without limits. Certainly, he would not support a bill of rights.
As Gunnell points out, there can be “an order based on power and one based on justice” (Gunnell, 107). As we focus our attention on the Constitution itself, it becomes clear that the U.S. Constitution establishes an order based on power.
Three little words
Let us begin by dispensing with “We the People.” Those three little words have two purposes to serve, neither of which has anything to do with democracy or civil liberties.
1. They are there for purposes of manipulation. Returning soldiers who fought for liberation felt empowered and justified in claiming an active role in shaping events in post-revolution America. They were organizing themselves and placing demands upon the government that weren’t being met. There were economic issues that had to be addressed. Thus, the citizenry needed to be “included,” i.e. placated.
Thus, “We the People” was inserted as a calculated piece of manipulation by Gouverneur Morris, one of the least democratic minded men at the convention. It was he who referred to those of lesser means as “Poor reptiles!” (Barber, 17). Recall, that the convention conducted its business in complete secrecy and systematically excluded from its deliberations the small farmers/soldiers who comprised eighty to ninety percent of the population. Clearly, the people, if by that one means the vast majority, were not invited to the party.
Had the Constitution truly been an expression of the will of the people it wouldn’t have been forced down their throats under pressure of time and threats of violence. The Constitution was sent to the Pennsylvania State Convention before the Constitutional Convention itself had even fully completed its work. The Federalists [1] (oligarchs) marshaled their supporters and forced an early vote.
In September 1787, in a letter to General William Irvine, David Redick describes the frantic efforts of supporters of the Constitution to get immediate ratification in Pennsylvania:
2. The second purpose of “We the People” was to notify the states that the consolidated, central government being established was not a confederation of states, as it had been under the Articles of Confederation, but a government whose sovereignty was invested in an hypothesized “people.” This second meaning was not lost on men like Patrick Henry.
One hundred sixty-eight Virginians met and debated the Constitution from June 2 through June 27, 1788. By a vote of eighty-nine to seventy-nine, the delegates voted for ratification. Patrick Henry spoke at length on several occasions. He was passionately and unrelentingly opposed to ratification.
By what right, asks Henry, did the Framers “speak the language of We, the People, instead of, We, the States? . . . The people gave them no power to use their name. That they exceeded their power is perfectly clear” (Storing, 297) (emphasis in original). Henry had been invited to attend the Constitutional Convention but refused to attend. He “smelt a rat in Philadelphia, tending toward the monarchy” (Davis, 227).
Suppressing rebellion
The most immediate and pressing need for the oligarchs was to “insure domestic Tranquility (Preamble).” Taking into account the political context in which the Convention members gathered, insuring “domestic tranquility” becomes synonymous with political oppression, eliminating dissent as a possible response to government policy, i.e. suppressing rebellion, preventing small farmers and mechanics from holding onto what was theirs. To this end congress is given the authority,
Bear in mind that the first president of the United States was a general and that the first time the United States Army was engaged in battle was with the farmers of western Pennsylvania. In July 1794, George Washington, with Alexander Hamilton by his side, heading up a militia thirteen thousand strong, rode out to collect taxes on locally brewed whiskey. This event came to be known as the “Whiskey Rebellion” and was characterized by Jefferson as a “war on our own citizens” (McMaken, Web). War on our own citizens has been a pretty steady diet over the past two hundred years.
Who is to say what constitutes “insurrection,” “domestic violence,” “rebellion?” Certainly not you or I, dear reader. Article One, Section 9, clause 2, states that, “The privilege—habeas corpus is a “privilege” not a “right”—of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it” (emphasis added). Who is to decide what constitutes “public safety?” Certainly not you or I, dear reader. Notice how a civil right granted in the first half of the clause is rescinded in the second half.
In 1861, President Abraham Lincoln used his power as commander in chief to organize northern armies against a secessionist south, resulting in 610,000 deaths. Three hundred Lakota Indians were massacred by federal troops at Wounded Knee, in South Dakota, in 1890. On Monday, May 4, 1970, four students were killed and nine wounded by National Guard troops during an anti-war demonstration at Kent State University. All of these actions were perfectly legal. In no way did they violate the Constitution as originally ratified.
Public demonstrations, labor strikes can easily be construed as “domestic violence” posing a threat to “public safety.” One example among many is the Pullman strike that took place in the summer of 1894. The strike and boycott shut down much of the nation’s freight and passenger traffic west of Detroit, Michigan. The conflict began in Chicago, IL, on May 11 when nearly 4,000 factory employees of the Pullman Company began a wildcat strike in response to recent reductions in wages. At its peak, the strike involved some 250,000 workers in twenty-seven states. Thirty people were killed.
The mails had to go through. How could the government have acted otherwise? Here is one possibility. Suppose the government were to point its guns in the other direction and demand of the Pullman company that it not lower its wages. Now had that happened it would have been considered an act of unexampled lawlessness and barbarity. Yet when the guns are pointed at workers it is sanctioned and even applauded. Notice how the needs of “public safety” would have been secured by either choice. Workers would not have gone on strike if their wages hadn’t been reduced. The mails would have gone through.
His Excellency the President
Warns Patrick Henry, “Your President may easily become King” (Storing, 310). This, of course, was Hamilton’s design all along. In essence, he got the monarchy he was hoping for. Under the presidential system of government, the president operates independently of the legislature, and is accountable to no one. In England, under a parliamentary system, the executive power is derived from the legislature.
Under the Articles of Confederation, the president held office for one year. Under the Constitution, he holds office for four, usually eight. The longer a president is in office, the more power he accrues, the more opportunity he has to abuse the power he has.
The president’s greatest and most menacing power is his role as Commander in Chief. Observes Patrick Henry,
The previous and current CICs have seen fit to detain indefinitely and without charges, at Guantanamo, those deemed to be enemies who constitute a threat to “public safety.” By similar line of reasoning, the National Defense Authorization Act (NDAA) of 2012 empowers the CIC to treat American citizens in a like fashion.
Under CIC George Bush, American citizen Jose Padilla, charged with terrorist activity, was denied his writ of habeas corpus and detained for a period of three and one half years, during which time he was held in solitary confinement and tortured.
It is certainly no accident that when we think of government we think of “The White House.” The White House is always up to something and something is always happening at the White House. It is the center of attention, commotion, celebration and demonstration. It is no accident that the House of Representatives, the legislative branch speaking for the majority, stands for little and receives little attention. We petition the president the way a serf might petition the Czar, and probably with less satisfaction.
Crushing democracy
Basically, there are two kinds of government: minority rule or majority rule. Monarchy and oligarchy vest all power in a small minority. Where there is democracy the majority is in charge. With a brief respite when there was democracy in ancient Athens, minority rule has prevailed throughout the world. Under the Articles of Confederation, the United States was as democratic as it has ever been. Government was decentralization and accessible to the citizenry. There was rotation in office. There was a unicameral legislature. There was no elitist branch of government to override the more popular house. The majority had a voice.
Such a state of affairs was not what The Framers, a wealthy oligarchy, had in mind. They were intent on excluding the majority as a means to advancing their own financial interests. Madison’s concern was that the majority would be mobilized by some “common passion,” leading to a “sacrifice of the weaker party,” i.e. the minority of aristocratic landholders whom Madison spoke for (F.P., 81). That the minority should rule, to Madison, seems axiomatic.
The opponents of the Constitution (the anti-Federalists) weren’t fooled. Asks Patrick Henry, “Can the annals of mankind exhibit one single example where rulers overcharged with power, willingly let go the oppressed, though solicited and requested most earnestly?” (ibid, 304).The theme of trust permeates the writings of early Americans. The anti-Federalist, “Brutus,” echoes Henry’s concerns above, “Many instances can be produced,” he says, “in which the people have voluntarily increased the powers of their rulers; but few, if any, in which rulers have willingly abridged their authority. This is sufficient reason to induce you to be careful, in the first instance, how you deposit the powers of government” (ibid, 109).
The Anti-Federalists (democrats) did the numbers. When both houses were reduced to quorums, the result would be a country of four million being governed by twenty-five congressmen. As “Lycurgus” of Pennsylvania saw it, the House of Representatives was nothing but a “pretended concession to democracy” (Main, 142). It was “a mere shadow of representation,” according to Melancton Smith, (Storing, 343) and “a mere burlesque,” according to “Brutus” (ibid, 126). What would these same men have to say about our current situation today when a small congressional committee of eight men and women can determine how much can be charged for life-saving medications affecting some thirty million elderly American citizens?
Hamilton opines that “the people commonly intend the PUBLIC GOOD” (emphasis in original) but believes that the Constitution will protect them “from very fatal consequences of their own mistakes” (F.P., 432). Madison has similar concerns and believes that an institution like the Senate will serve “as a defense to the people against their own temporary errors and delusions.” (ibid, 384).
In order to protect the people from themselves it was necessary to create a government that was remote, inaccessible, diffuse, confusing, secret, yet enormous and overpowering, omnipresent and omniscient, a looming, frightening presence, lest the majority get the idea of doing a little governing on their own behalf.
This unreachable, unfathomable government needed to be immutable, irrevocable, unrepealable, unchangeable. In other words, it needed to be cast in stone for all times. Those who conceived of the United States government believed they would rule from beyond the grave and into eternity. Apparently, they have.
What about the oft-touted checks and balances? Won’t they insure that everyone gets a fair shake? Let’s consider what is being checked and what is being balanced.
As intended by Madison, Hamilton and others, the House of Representatives, the more representative body, is being checked by the Senate, the smaller, more elite body. Needless to say, the president, a minority of one, serves as another check. The Supreme Court plays a similar role. Says Hamilton, in Federalist No. 78, “In a republic [the judiciary] is . . . an excellent barrier to the encroachments and oppressions of the representative body” (F.P., 465).
Howe (see above) describes aptly what it is like to be American citizen trying to make a system work that was designed for inefficiency.
High on the list of obstacles placed in the way of the American citizen is the Supreme Court itself. In Marbury v. Madison, (1803), the Supreme Court, under John Marshall, took unto itself the right to decide what is and isn’t Constitutional. Of nine men and women appointed for life, five can determine what is the law of the land. In the election of the year of 2000, five men decided who would become president of the United States. This is what minority rule looks like.
What about the balance? The power of the few, the minority, is being balanced against the power of the many. The minority has set up a form of government in which their small number is given parity with the much larger number speaking for the majority. Checks and balances are not about democracy or fair play. They are means of oppressing the needs and wishes of the population at large in favor of a wealthy elite.
The same can be said of the separation of powers. In Madison’s own words, in Federalist 51, “the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other.” (F.P., 322) If everyone checks everyone else, nothing gets done. The legislature is hampered, as intended. Notice how by separating the executive from the legislative, the effect is to weaken the legislature and to strengthen the executive. Said Madison, in a letter to Jefferson, “Divide et impera, the reprobated axiom of tyranny, is under certain qualifications, the only policy, by which a republic can be administered on just principles.”(Holton, 10).
Hamilton refers to “the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments” (F.P., 442). The system he helped create was designed to put a check on that very “propensity.”
The presidential system Americans live under is a uniquely American invention whose primary purpose is to obstruct legislative initiative. In the UK, there is a parliamentary system. The Prime Minister is an elected member of parliament. He is an integral member of the legislative body. If there is conflict, the majority can, if they have the numbers, make a vote of no confidence and the Prime Minister and his cabinet must resign, resulting in a new cabinet or a new election. For his part, the Prime Minister can call an election as a means to getting a legislature more sympathetic to his ideas. These arrangements reduce deadlocks, because there is a way out.
In a parliamentary system there tends to be a higher focus on voting for a party and its political ideas than voting for an actual person. There are real debates. The Prime Minister is held to account during Prime Minister’s Question Time, which provides an opportunity for MPs from all parties to question the Prime Minister on any subject.
In a parliamentary system, elections occur when required, thus avoiding the periods of legislative gridlock that occur in the fixed period presidential system.[2] There are more frequent changes in government. Government is more responsive to changing conditions, which is exactly what Madison wanted to avoid. He wanted government that is immutable and unchanging.
Under the presidential system, other than in cases of impeachment, the president is accountable to no one. In the United States, there is very little open exchange between the executive and the legislature. Once a year the president makes a magisterial “State of the Union” address to congress. This is usually accompanied by applause and genuflection. Rarely if ever is the president challenged by the legislature the way a prime minister is under a parliamentary system. He is the reigning monarch.
The early American oligarchy wanted to keep democracy at bay. It also wanted to keep government at bay so it could conduct its business unhampered by government interference, except in those instances where it was looking for a handout. Inefficient government was its goal.
This is what separation of powers produces: petty bickering, grandstanding and not much else of consequence. A small minority can defeat just about any piece of domestic legislation (Fresia, 140–141). As to foreign policy, the president can make war, at will, which is what he does. The system is working as designed. Empire was what Hamilton had in mind.
Phantom government
We live under a phantom government because much of what our government does is concealed under a veil of secrecy. Like a phantom, our government remains invisible and unpredictable. We think we know where and what it is, but we don’t.
Secrecy was written into the fabric of the U. S. Constitution. At its discretion, Congress shall hide from us what it doesn’t want us to know: “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy (I,5,3).”
It is common understanding that governments operate in secrecy. It is quite unusual for a government to claim that right in its founding document. Yet it is consistent with the siege state mentality that seems to have prevailed at the time the Constitution was being written. The Constitutional Convention was held in secrecy. There were no official minutes taken. In 1840, fifty-three years after the Constitution had been written, Madison’s personal notes were made available to the public. This is a government conceived in secrecy and consumed by secrecy.
Writing close to a hundred years ago, Max Weber observed that “officialdom’s most important instrument of power is the transformation of official information into secret information by means of the infamous concept of ‘official secrecy,’ which ultimately is merely a device to protect the administration from control” (emphasis in original) (Weber, 179). Where there is secrecy, there is something to hide.
The government, operating in secrecy, has a monopoly on truth. They know what they are doing. We don’t. And that is the way it is supposed to be. The fierce attachment to the lie is necessitated by the duplicity of those in power. There are two realities, a benign fake reality, the one created for us by the oligarchs who rule and a nasty, sinister reality, the reality we are never to fully know.
As it is in Franz Kafka’s novel, the Castle, our attempts to connect to government, pin it down, get it to respond, meet with avoidance, confusion, frustration, alienation and often despair. None of this is accidental. The Framers, especially James Madison, understood how democracy worked and how to crush it. Says Madison, “It may be suggested, that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures” (F.P., 385).
Observes Vernon Parrington, “Set government apart from the people, or above them, and public interest is lost in a sense of futility” (Parrington, 357). Holton speaks of “the sinister beauty of the Constitution” and rightly points out that when, “citizens find they cannot influence national legislation, their tendency is not to curse the system but to blame themselves” (Holton, 273).
When you create large election districts, distance separates one person from the next. People don’t know each other. They lack a common local meeting place where there can be an exchange of ideas, and so there is no “danger of combining in pursuit of unjust measures.” “Unjust measures” are those that threaten the power of the ruling elite, landholding aristocrats like Madison. Democracy is crushed before it can even take root.
Madison is quite explicit on the subject of passions, others, not his. He is contrasting reason, i.e., his views, with the passions, i.e. the views of those of lesser means. It is Madison’s concern that “the passions, therefore, not the reason, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government” [emphasis in original] (F.P., 317). What are the passions that must be controlled? The passion for political justice, the passion that will deny minority rule to men like James Madison.
The power elite already know each other and hence have no difficulty in plotting their moves. Observed Melancton Smith of New York, in 1788, “The great easily form associations; the poor and middling class form them with difficulty” (Storing, 341). As a consequence, concludes Smith, “the government will fall into the hands of the few and the great. This will be a government of oppression” (ibid). How prescient.
Consolidating the government in one central location at a significant distance from governed has the same undermining effect as large election districts. “In a country, where a portion of the people live more than twelve hundred miles from the center,” says Smith, “I think that one body cannot possibly legislate for the whole. . . . Can the best men make laws for a people of whom they are entirely ignorant?” (ibid, 354).
The government is phantom and difficult to pin down because the Constitution was deliberately written in vague generalities. “Brutus” of New York, writing in 1788, finds that most of the articles in the Constitution “are conceived in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions to unfold the extent of their meaning” (ibid, 166). He is concerned that the new government “has a specious resemblance of a free government.” “The gilded pill,” he warns, “is often found to contain the most deadly poison” (ibid,122).
Madison and Hamilton believed they were writing a Constitution for all times in which case it makes sense not to get too specific. If you get specific then the Constitution might outlive its viability. Says Hamilton, “Constitutions should consist only of general provisions; the reason is that they must necessarily be permanent, and that they cannot calculate for the possible change of things.”
There is another, perhaps more obvious, reason. If the Constitution is written in vague terms, then those in power can creates laws to suit their needs. There are no constrictions.
In February 1791, barely halfway through his first term as president, George Washington was confronted with a significant Constitutional question: Does the Constitution grant Congress the right to create corporations, in this instance, a national bank, as proposed by Hamilton and legislated by Congress? Such power is not spelled out in the Constitution. How then can the government legally create a national bank?
After enumerating the many specific powers granted to Congress, Article I, Section 8, of the Constitution ends as follows: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Well, there you have it, says Hamilton, “necessary and proper.” The bank is necessary and proper and therefore within the purview of Congress.
Innumerable powers have been acquired by Congress, the president, and the courts in the two centuries or so that have passed since the first “interpretation” of the Constitution was made. Volumes have been devoted to “Constitutional law,” interpreting what the Constitution “means.” In essence, the Constitution “means” what those in power say it means, just as the Anti-Federalists (democrats) feared.
Nowhere does the U.S. Constitution prescribe terms limits to its office holders, the president and members of Congress. The Articles of Confederation had specified that (1) “delegates shall be annually appointed; (2) “no person shall be capable of being a delegate for more than three years in any term of six years”; and (3) there is “a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.”
Rotation in office, powers of recall, the Framers would have none of it. If there are term limits spelled out, then the power elite loses control. Without term limits what ensues is an aristocracy of office holders, which is what Madison and Hamilton had in mind. Currently there are congressmen who have been in office for thirty, forty, fifty years. Better to leave things vague.
As long as matters are vague, there is little or no accountability. For example, Article 1, Section 9, Clause 7 says, “No money shall be drawn from the treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.” It is the “from time to time” that amuses me. It could read, “once every six months,” “once a year” or “once every half century.” But any specificity would require accountability, apparently not high on the list of the Framers’ priorities.
Article III, Section 1 reads, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” What constitutes “good Behaviour?” And who will decide? Another example of deliberately ambiguous language whose purpose is to disempower those who might want to set limits for a court beyond the reach of the majority. The one example of a Supreme Court judge being impeached is Samuel Chase. The House voted for impeachment. The Senate voted against and Chase retained his seat.
The letter of the law
Observes a Maryland farmer in March of 1788, “There are but two modes of governing mankind, by just and equal law, enforced impartially on all ranks of society, or by the sword” (emphasis in original) (Storing, 266). In other words, we are to choose between justice and tyranny.
In the United States, we are living under a government of laws, laws that rarely yield, even under extreme circumstances, to the demands of justice. The law is sacrosanct for those of us without the power to contradict it. For those in power, the law is a convenience and a weapon.
We live in a society dominated by lawyers and lawgivers, a society characterized by its legalese and litigiousness. For these dubious benefits, we are indebted to John Marshall, America’s first chief justice, a man characterized by “the virulence of his hatred of democracy. No man in America was less democratic in his political convictions” (Parrington, Vol. II, 23). This was the man who, for thirty-five years, “molded the plastic Constitution to such form as pleased him” (ibid, 22).
It is thanks to John Marshall that five men and women, a majority of Supreme Court Justices appointed for life, dominate our political horizon. Although we have come to revere the nine men and women in black robes as men and women of integrity, motivated by the loftiest of values, above the political fray, in fact, most of their decisions are political decisions, reflecting unexpressed political bias. Says Parrington, “It is a dangerous thing for the bench to twist the law to partisan or class purposes, yet to this very thing John Marshall was notoriously given” (ibid, 23). It was he, more than anyone, who insisted on the irrevocable nature of contracts. Here is a telling example.
In 1794, the Georgia state legislature had contracted to sell thirty-five million acres of land, basically the states of Alabama and Mississippi, at less than one and one half cents an acre. This case has come to be known as the Yazoo Fraud case. A new legislature repealed the law and rescinded the contract. A few of the investors took the case to the Supreme Court. In granting awards to the investors, Marshall argued that contracts are inviolable and that the people are bound by their agents, no matter how corrupt. No justice here. Law all the way. Marshall believed that “the law of business must be made the law of the land” (ibid, 24). One could easily argue that he has succeeded in that endeavor to a degree he might never have anticipated.
Are contracts irrevocable and forever? What about the compact that formalizes the relations between government and the governed? Should that contract endure indefinitely or should it be modified periodically to reflect the changing times? Is government to be permanent or responsive?
The rules can change overnight, depending on who has the power. For example, Madison placed a great deal of stress on the importance of a stable government when defending his allegiance to the U.S. Constitution. Jefferson was of the opinion that whenever two of the three branches of government, each by a two-thirds majority, agreed that the Constitution had been breached or was in need of modification, a convention should be called. Madison was adamantly opposed. Jefferson’s proposal was never considered.
Too many appeals to the people concerning the structure and functioning of government would imply “some defect in the government.” Recurring conventions would deprive the government of “requisite stability” and “that veneration which time bestows on everything” (F.P., 314). Elsewhere, Madison speaks of “the mischievous effects of a mutable government” (ibid, 380).
These are noble sentiments. However, at the time they were being uttered, Madison, himself, was part of a secret conclave, involved in extra-legal activity to replace a legally established government under the Articles of Confederation with a new government under the Constitution.
The existing contract between the existing government and the governed is a matter of small consequence when Madison, in search of power to defend his personal interests, seeks to overthrow it. Says “Brutus” of New York, in 1787, “This Constitution considers the people of the several states as one body corporate, and is intended as an original contract, it will therefore dissolve all contracts which may be inconsistent with it “ (Storing, 133).
The United States and France had signed two treaties. These treaties, French loans, and French military are what allowed the United States to prevail in the war against Great Britain. Apparently, these particular contracts weren’t worth the paper they were written on. Under the Jay Treat, France was cut loose and replaced by Great Britain.
Thomas Paine believed that the contract between government and governed was up for renewal with each new generation and that it was a prerogative of the majority to remake the fundamental law so as it bring it into agreement with current needs and wishes. The contract that governs should be an expression of the living, not the dead. Said Paine,
Every age and generation must be free to act for itself in all cases as the ages and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. . . . It is the living, and not the dead, that are to be accommodated [emphasis in original](Parrington, 341).
Patrick Henry quotes from the Virginia State Constitution to the same effect.
Section 3 reads:
The nineteenth century in France was turbulent times. Yet none of the government changes in any way hampered the French economy, or France’s standing in the community of nations. French culture flourished. France was the center of art and literature.
And most importantly, if one were to compare the political insight and understanding of the average American as opposed to the average Frenchman, one would undoubtedly discover an appalling naiveté and lack of political sophistication among the Americans who seem quite willing to accept unquestioningly whatever its government does in its name. Rarely do Americans challenge their national government and hold it accountable. The French are much more willing to take to the streets and are a lot more vocal in their disapproval of government policy. They have a political life that is many times more stimulating and engaging than their counterparts across the Atlantic.
Speculators on the prowl
Some of the most ardent supporters of the new government under the U.S. Constitution were speculators holding government war bonds. Returning soldiers were in need of money. The bonds they had purchased in support of the war were their only liquid assets. Sensing that the farmers were desperate for money, speculators toured the country, grabbing up bonds and paying as little as fifteen cents on the dollar. Under the Constitution, they were to be guaranteed full value on bonds they had purchased at bargain prices. Clearly, there was no concern for the small farmers who had risked their lives for the cause. In 1789, the Pennsylvania state government raised £111,000 in taxes. £70,000 went to just twelve bondholders.
The first sentence of Article I, Section 10, of the U.S. Constitution reads as follows:
At the time the Constitution was written, “Obligation of Contracts” had a specific meaning. The contracts being referenced were the bonds held by speculators. State legislatures had used various stratagems to interfere with the execution of these contracts. In Rhode Island, legislators sympathetic to the debtors’ cause were issuing paper money. In New York, North Carolina and Georgia legislatures passed either tender laws, recognizing alternate means of payment, or issued paper money. Any such actions, by virtue of the new Constitution, were now illegal.
As far as the speculators were concerned, these few phrases were the core of the legal document they had created. These few phrases alone justified the entire endeavor. “As a result of the protection that Section 10 afforded creditors, more people proclaimed that clause ‘the best in the Constitution’ than any other in the document.” The governor of Virginia declared Section 10, “a great favorite of mine.” A New Jersey Federalist claimed. “Nothing, in the whole Federal Constitution, is more necessary than this very section.” (Holton, 9).
This quote from Howard Zinn’s A People’s History of the United States frames the issue of contracts somewhat differently.
In ancient times, there was debt slavery. If you couldn’t pay the money you owed, you became a slave to your creditor. In nineteenth century England, there was debtors’ prison. The current predator class has students enslaved to a debt that it will take a lifetime to liquidate.
In the United States, since its founding, the law—“the gilded chain[s] . . . of despotism” (Storing, 204)—has repeatedly been used to the benefit of the few at the expense of the many. In An Economic Interpretation of the Constitution, Beard comments on “the peculiar position assigned to the judiciary, and the use of the sanctity and mystery of the law as a foil to democratic attacks” (Beard, 161).
In certain liberal circles, no how matter how bleak the outlook, there is often an almost audible sigh of relief, “Well, at least we have a government of laws and not a government of men.”
If one reflects for but a moment one is struck by the fact that laws are concepts and that concepts don’t govern. Only people do. Laws are written by people and enforced by people, usually men in positions of power. Said political philosopher Thomas Hobbes, law is “the word of him that by right hath command over others” (Hobbes, 119). Thus, we can have a government of laws, a government forged in the interests of those in power, or a government based in justice, a government that will favor the rest of us. In ancient Athens, in the fifth century, the people in their Assembly were the highest power, not the laws (Hansen, 174).
Was there a coup d’état?
On May 25, 1787, fifty-five men met in secret to undo one form of government under the Articles of Confederation and replace it with another under the U. S. Constitution. The duly constituted Constitutional Congress, the governing body since the U. S. came into existence did not meet and decide to supersede itself and replace itself with a new form of government. An extralegal government set up a new government in its place over and against the wishes and instructions of those who authorized the convention. As Woody Holton observes, “Whatever else it was, the process that resulted in the U.S. Constitution was indisputably, according to the rules in place at the time, unConstitutional” (Holton, 180). “Had Julius or Napoleon committed these acts,” comments Professor John W. Burgess, “they would have been pronounced coups d’états” (Beard, 218).
Coup d’état can be defined as an action taken by a small group of conspirators acting in secret whereby a legally constituted government is undone and replaced by another. Was there a coup d’état?
Comparing events in the United States in 1787 with events in France a little more than a decade later will be instructive. What Napoleon engineered on 18 Brumaire (November 9, 1799) has been called a coup. Do the events in France in 1799 resemble events in the United States in 1787? Both countries were inventing new governments and were plagued with financial crisis and political intrigue. In both countries, one legally constituted government was overthrown by extra-legal means and replaced with another.
France’s first Constitution goes back to 1791. It was a short-lived Constitutional monarchy. Under the second Constitution, France was no longer a monarchy. It was now an oligarchy, calling itself a republic. Elections were to be held annually. Provision was made for an executive council composed of twenty-four members, serving for one year only.
In reaction against the terror and the militarization of a society in a state of constant warfare, a third, more conservative Constitution was adopted in 1795. Under this new Constitution, instead of one house speaking for everyone, there was a bicameral legislature: a Council of Five Hundred and a Council of Ancients (made up of 250 members). There was to be an executive made up of five directors known as the Directory, chosen by the Ancients out of a list sent to them by the Five Hundred.
In the summer of 1798, Napoleon was on his way to conquer Egypt. A year later, he returned to France. He had suffered an ignominious defeat. Yet he received a hero’s welcome and used his popularity and alleged victory to establish himself as ruling monarch.
On the morning of November 9, 1799 (18 Brumaire according to the revolutionary calendar) Napoleon, operating in secrecy, and with the connivance of Abbé Sieyès, one of the five directors, and former foreign minister Charles Talleyrand, orchestrated an overthrow of the existing government. The Directory of five was replaced with a Consulate of three, with Napoleon as First Council and eventually emperor for life.
When Napoleon returned from Egypt with his seditious plans, the Directory, established by the Constitution of 1795, had been in place for four years and had made decent progress in stabilizing the economic situation at home and making reasonable adjustments to the diplomatic situation in Europe. Says historian Crane Briton,
It is pretty clear now that the Constitution of 1795 was so molded by events and leaders that in 1799 the essential institutions . . . needed but slight alterations and additions to accommodate themselves to the much-praised Napoleonic internal stability (Brinton, 212).
Similar observations had been made about the Articles of Confederation. They had proved their worth over the course of an eight years war with England. The citizenry were content with their various governments under the Articles of Confederation. Thus, there was no need for a savior in France in the person of Napoleon and his co-conspirators, or in the United States in the person of Hamilton and his co-conspirators. Nonetheless the coups occurred, driven primarily, in both cases, by needs for personal power.
Prior to the coup in France, troops were conveniently deployed around Paris. In the United States, when the Revolution ended, there was a suggestion within the officers’ corps that they not abandon their arms until they had been properly paid and recognized. This was an armed coup in the making. “Brutus” declared, “It remains a secret, yet to be revealed, whether this measure was not suggested, or at least countenanced, by some who have had a great influence in producing the present system [i.e., the Constitution]” (ibid, 159).
The Continental army officers formed “The Society of Cincinnati,” after the Roman general, Cincinnatus and met three times a year. Hamilton chose May 1787 to hold the Constitutional Convention, knowing that the Society of Cincinnati would be meeting down the street. Thus, in both France and the United States there was a military presence at the time of an extra-legal change in governments.
The plan in France was, first, to persuade the Directors to resign, then, second, to get the Council of Ancients and the Council of Five Hundred (the upper and lower houses of the legislature) to appoint a pliant commission that would draw up a new Constitution to the plotters’ specifications.
On the morning of 18 Brumaire, rumors were spread that the extreme left was planning a coup. [3] The legislature sought refuge in a Paris suburb. The resignation of three of the five Directors prevented a quorum and thus practically abolished the Directory (the executive branch).
By the following day, the legislators realized that they were facing an attempted coup rather than being protected from a Jacobin rebellion. A motion was raised in the Council of Five Hundred to declare Napoleon an outlaw. Napoleon’s brother, Lucien, told the soldiers guarding the Councils that the majority of the Five Hundred were being terrorized by a group of deputies brandishing daggers. Lucien ordered the troops to expel the violent deputies from the chamber. The Council of Five Hundred was dispersed, thus bringing an end to one form government and setting the stage for the next, Napoleon as emperor for life.
In the United States, about a decade earlier, there was similar political turmoil centering on the new Constitution. Should it be ratified or not? At the outset of their respective state ratifying conventions, seven states, that is, a majority—Massachusetts, New Hampshire, Maryland, Virginia, Rhode Island, New York, and North Carolina—were against ratification. It is not surprising that the oligarchy behind the Constitution, determined to have its way, resorted to deception, manipulation, destruction of ballots, mail tampering and violence.
In Pennsylvania, at the time of the Pennsylvania State ratifying Convention, several members in opposition to the U.S. Constitution, feeling they needed more time to deliberate before being forced into a decision, left the convention, denying the majority a quorum. Officers “broke into their lodgings, seized them, dragged them through the streets to the State house, and thrust them into the assembly room, with clothes torn and faces white with rage” (Beard, 331–332).
In Dobbs County, North Carolina, the Anti-Federalists (democrats) had a clear lead. Federalists (oligarchs) caused a riot and destroyed the ballots. Not only did the Federalists tamper with elections, print falsehoods, and use intimidation and manipulation to win votes, they also exercised control over the mails, thereby delaying the arrival of critical news and sometimes not delivering the mail at all, always selectively handicapping their opponents.
I think there is a strong argument equating these events in the United States at the time of the Constitutional Convention with those of 18 Brumaire in France. The principal difference is that in the annals of French history the replacement of one government with another, without legal authority, has come to be known as a coup d’état. While in the United States, very similar events are packaged quite differently. There is little mention of conspiracy. The secrecy is minimized. The lying, manipulation and scare tactics are left out of most accounts. The Articles of Confederation are denigrated as ineffective and irreparable. The Constitution is portrayed as a necessary and desirable alternative.
The coup in the United States was as successful as it was because it moved fast in establishing its legitimacy and because of the propaganda effort surrounding the endeavor, starting with the oft-praised Federalist Papers. Men like James Madison and Alexander Hamilton used their visibility and the respect they enjoyed to engineer an overthrow of government under the guise of good citizenship. They needed an icon, an official stamp of approval for their seditious activities. That role was filled by George Washington, known in some circles as “Honest George,” in others as, the man who stole land from the Indians and even his own soldiers.
American history is for the most part written and taught in the service of myth. The myths about “Honest George” and the other “Founding Fathers” continue to populate our history books. Is there a single high school text that informs its readers that the Constitutional Convention was held in secrecy and explains why, that seven of thirteen states were initially opposed to ratification and explains why? I’ll wager not. Is there a single college history course that deals exclusively with the critical period 1776 to 1788 when an emerging democracy was crushed and replaced with an oppressive oligarchy? I’ll wager not.
Americans are schooled in credulity and acquiescence. Honest critical thought in the areas of political life and government are anathema. American exceptionalism rules. We are different. We are better. We are benign. We are defenders of democracy around the world. Our leaders are above reproach.
Reality is the exact opposite. The United States was born in secrecy and lawlessness. It has been true to its origins ever since. Maybe it is time we opened our eyes.
Endnotes
1. As an example of their cunning disregard for the truth, men like Madison and Hamilton marketed themselves as “Federalists,” when in fact they were “Nationalists” in favor of a strong central government and opposed to a “Con-Federation” of independent states. In effort at clarification, I refer to “Federalists” as “oligarchs” and “anti-Federalists” as “democrats.”
2. Recently, the American government shut down because of a standoff between the executive and the legislative branches.
3. In the United States Shays Rebellion of 1786 played a similar role.
Sources
Barber: Benjamin Barber, Strong Democracy: Participatory Politics for a New Age.
Beard: Charles Beard, An Economic Interpretation of the Constitution.
Brinton: Crane Brinton, A Decade of Revolution, 1789–1799.
Davis: Davis: Kenneth C. Davis, America’s Hidden History: Untold Tales of the First Pilgrims, Fighting Women, and Forgotten Founders Who Shaped a Nation.
F.P.: Federalist Papers.
Fresia: Jerry Fresia, Toward an American Revolution: Exposing the Constitution and Other Illusions.
Gunnell: John G. Gunnell, Political Philosophy and Time.
Hansen: Mogens Herman Hansen: The Athenian Democracy in the Age of Demosthenes.
Hobbes: Thomas Hobbes, Leviathan.
Holton: Woody Holton, Unruly Americans and the Origins of the Constitution.
Howe: Frederic C. Howe: Revolution and Democracy.
___________________________: The Confessions of a Reformer.
Main: Jackson Turner Main, The Anti-Federalists.
McMaken: “Founding Fathers.’”
Parrington: Vernon L. Parrington, The Colonial Mind, 1620–1800.
Parrington, Vol. II: Vernon L. Parrington, Main Currents in American Thought: The Romantic Revolution in America, 1800—1860.
Storing: Herbert J. Storing, editor, The Anti-Federalist: Writings by the Opponents of the Constitution.
Weber: Max Weber, Political Writings.
Zinn: Howard Zinn, A People’s History of the United States: 1492–Present.
Arthur D. Robbins is the author of “Paradise Lost Paradise Regained: The True Meaning of Democracy.” See http://www.acropolis-newyork.com.
As relations between the colonies and England began to deteriorate, the colonists realized that they needed to coordinate their response to English hostility. So they called a meeting. The first Continental Congress met on October 26, 1774, in Philadelphia, followed in 1775 by the second Continental Congress. On July 2, 1776, the delegates unanimously passed the Declaration of Independence. Thirteen colonies became thirteen independent states, the United States of America. The Continental Congress was its governing body, raising money and troops for the war, sending envoys to Europe, negotiating treaties, overseeing the day-to-day progress of the war.
In mid-1776, the Congress began drafting the Articles of Confederation. An approved version was sent to the states for ratification in late 1777. The formal ratification by all 13 states was completed in early 1781. The thirteen states had a duly constituted government and a constitution.
The Articles of Confederation provided for a unicameral legislature, with each state having one vote. Delegates were appointed annually by state legislatures and could not serve for more than three out of any six years. A committee of the Congress was authorized to appoint one of its members to preside as president. No person was allowed to serve in the office of president for more than one out of any three years.
Article III of the Articles of Confederation read, “The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare.” The Confederation is a “league” of independent states based in friendship, something like the United Nations, today.
The Treaty of Paris, signed in 1783, officially brought an end to the war with England and recognized the sovereignty of the United States. There was a general consensus that the Articles of Confederation needed to be revised. But there was little agreement as to what new powers should be granted.
In September of 1786, a committee of five states—under the chairmanship of Alexander Hamilton—met in Annapolis to discuss ways the Continental Congress could be empowered to exercise some more control over foreign and domestic commerce and to find the means to raise the money it needed to pay its debts.
There was a second gathering in Philadelphia, known to posterity as the Constitutional Convention. It convened on May 25, 1787. Each of thirteen states sent their delegates. These were men chosen for their reputation and visibility, in other words, members of the oligarchy: prominent lawyers, wealthy merchants, landed aristocrats, speculators in bonds. Wrote “Cornelius,” of Massachusetts, in December of 1787, “I conceive a foundation is laid for throwing the whole power of the federal government into the hands of those who are in the mercantile interest” (Beard, 306).
The delegates to the Constitutional Convention were only authorized to amend the Articles of Confederation. The Massachusetts state legislature was very specific in stating that its delegates were being sent to the convention “for the sole and express purpose of revising the Articles of Confederation” (Main, 115). The New York delegation had been given similar instructions. Two of the delegates left the convention in protest when they saw what was happening.
There was a small minority who stood behind the “New Jersey Plan,” proposed by William Paterson of New Jersey, who declared, “I came here not to speak my own sentiments, but the sentiments of those who sent me’ (Holton, 199–200). His was very much a minority viewpoint. His proposal was a practical and viable means for modifying the Articles of Confederation, while simultaneously addressing the issues that had brought the conclave together.
Instead, the delegates held secret, closed-door sessions and wrote an entirely new constitution. According to Madison’s Notes, the exact language of the secrecy rule was that “nothing spoken in the house be printed, or otherwise published or communicated without leave.” Madison seems to have taken the vow of secrecy to the limit. His copious Notes weren’t available until after his death despite numerous requests that he make them available to help in constitutional interpretation. There were thick drapes over closed windows in Independence Hall during the hot Philadelphia summer. Benjamin Franklin was provided with a chaperon lest he babble a little after a few glasses of wine.
Frederic C. Howe (1867–1940) was a longtime activist-politician who served on the Cleveland Frederic City Council and eventually became an Ohio state senator. He started out his political career as a true believer. Gradually he became disillusioned with the American system of government.
My text-book government had to be discarded; my worship of the Constitution scrapped. The state that I had believed in with religious fervor was gone. Like the anthropomorphic God of my childhood, it had never existed. But crashing beliefs cleared the air. I saw that democracy had not failed; it had never been tried. We had created confusion and had called it democracy. Professors at the university and text-book writers had talked and written about something that did not exist. It could not exist. In politics we lived a continuous lie (Howe, Confessions, 176).Are we Americans indeed living, “a continuous lie?” Perhaps. If we return to the period in which the Constitution was conceived, if we study the political context and if we listen to the voices of those who were in opposition to its enactment, we will better understand the motivation of the Framers and hence the purpose of the Constitution they promulgated. We will get a clearer sense of why our government has failed us while successfully serving the private interests of those who conceived of it in the first place.
Tiger at the gate
The Treaty of Paris was signed in 1783, thus bringing to a formal conclusion the war for independence, a war fought by the small farmer on behalf of the merchants and speculators who were its predetermined beneficiaries. The economy was depleted by the war effort. The nation’s output had plummeted. What ensued was a depression that some have compared to the conditions in the 1930s. “ . . . Few households were able to scrimp enough to make up for what they lost when their young men exchanged wheat and tobacco fields for battlefields. Many plunged deep into debt” (Holton, 27).
There were loans from France and Holland that needed to be paid off. Returning officers were waiting for their pensions. Speculators who held state and national war bonds wanted to be able to redeem their bonds and collect interest on these bonds at full face value.
British merchants were not feeling especially charitable towards their former colonies and hence demanded payment in species (gold or silver) for all purchases. Paper currency was deemed unacceptable. U.S. merchants in turn demanded species payment from the small farmers. Gold and silver were in short supply. Farmers who were heavily in debt petitioned for paper currency as a means of paying what they owed. Something had to give. And give it did.
But the class inequalities which became manifest at the time the Constitution was being written were in place decades before the revolution. And those without privilege were developing a political will. They were expressing themselves at town meetings and taking action. “At these meetings,” complained one of the well to do, “the lowest Mechanicks discuss upon the most important points of government with the utmost freedom” (Fresia, 29). Gouverneur Morris, one of the primary authors of the Constitution, made a similar observation. Morris lamented the fact that “the mob begin to think and reason. Poor reptiles! . . . They bask in the sun, and ere noon they will bite, depend upon it” (Barber, 17).
In Philadelphia, in 1772, mechanics and craftsman set up their own political organization, the Patriotic Society, with the purpose of promoting their own candidates for office and their own agenda. The small subsistence farmers were equally as proud and independent. There was a strong sense of community and cooperation. Farmers helped each other out in times of need and joined together in times of celebration.
This in a nutshell was the problem. The lower class had access to forums where they could participate in the political debate. Shifting the political debate to a remote central location, inaccessible to the local citizenry, would bring such presumption to an end.
Taxes after the Revolution were higher than before for those who could least afford to pay them. Taxes were needed to pay off the various debts, much of it to speculators who owned state and national bonds. In Hampshire, Massachusetts, between 1784 and 1786, thirty-four percent of the male population over sixteen were hauled into court for non-payment of debt. They were crammed into jails under abominable conditions. Some died. Their land, livestock, homesteads were confiscated.
The oligarchy made up of wealthy merchants, landowners and speculators were being forced to choose between two alternatives. They could agree to issue paper money and accept it as a means of settling debt. This would have eased the economic situation for the vast majority and put the domestic economy on a more stable basis. It also would have had the effect of neutralizing their power and ultimately reducing their wealth.
Or the oligarchs could insist on payment in species for all debt and insist on redemption of bonds at full face value. Once they chose the second alternative, they would obviously need a powerful central government to enforce their wishes.
It is certainly not surprising that under these circumstances when those of modest means were driven out of their homes and off their lands that they responded with their rifles. By the end of 1786, some nine thousand militants had taken up arms in Maine, Vermont, New Hampshire, Massachusetts and Connecticut. By mid-1787, the uprisings had spread to Pennsylvania, Virginia, South Carolina, Maryland and New Jersey.
The best known uprising occurred in western Massachusetts under the leadership of Daniel Shays, a veteran of the war for independence. He organized a following of one thousand men and marched on Boston. Merchants organized an opposing army. Shay and his men were routed.
It is important to remember that these uprisings were not directed at government per se or with an eye to taking someone else’s wealth. The insurgents had as their sole purpose to hold on to what they had so they could have a roof over their head and food on the table. Armed men would interrupt court proceedings or turn their rifles on local constabulary who were trying to take what was theirs.
In the midst of this political unrest, on May 25, 1787, the Constitutional Convention held its first meeting. It is not hard to imagine what the oligarchs had on their minds. They needed to 1) suppress rebellion and 2) and crush democracy.
In reflecting upon the Constitution, in trying to understand the nature of the government that it established and those who collaborated in its creation, it is important to put aside for the moment, the first ten amendments, known as the “Bill of Rights.” It is important to put them aside because they are not an integral part of the founding document and in some ways conceal its true intent.
On December 15, 1791, Virginia became the tenth state to approve ten of the twelve amendments to the original Constitution, thus giving the Bill of Rights the two-thirds majority of state ratification necessary to make it legal. The Constitution itself was ratified on June 21, 1788. Thus, for three and one half years there were no guarantees of civil liberty. For three and one half years, the government, as originally designed, stood free of any modifications, revealing to the world the true intentions of its Framers.
There was considerable pressure from within the Convention and from without, during the debate that preceded ratification, to include a Bill of Rights. A declaration of civil rights was included in state Constitutions like that of Virginia and Pennsylvania. Thus, the exclusion of such guarantees was a deliberate choice by a core of powerful oligarchs. Alexander Hamilton spoke for six hours at the Convention in favor of establishing a monarchy. He wanted a strong, central, consolidated government that could exercise its power without limits. Certainly, he would not support a bill of rights.
As Gunnell points out, there can be “an order based on power and one based on justice” (Gunnell, 107). As we focus our attention on the Constitution itself, it becomes clear that the U.S. Constitution establishes an order based on power.
Three little words
Let us begin by dispensing with “We the People.” Those three little words have two purposes to serve, neither of which has anything to do with democracy or civil liberties.
1. They are there for purposes of manipulation. Returning soldiers who fought for liberation felt empowered and justified in claiming an active role in shaping events in post-revolution America. They were organizing themselves and placing demands upon the government that weren’t being met. There were economic issues that had to be addressed. Thus, the citizenry needed to be “included,” i.e. placated.
Thus, “We the People” was inserted as a calculated piece of manipulation by Gouverneur Morris, one of the least democratic minded men at the convention. It was he who referred to those of lesser means as “Poor reptiles!” (Barber, 17). Recall, that the convention conducted its business in complete secrecy and systematically excluded from its deliberations the small farmers/soldiers who comprised eighty to ninety percent of the population. Clearly, the people, if by that one means the vast majority, were not invited to the party.
Had the Constitution truly been an expression of the will of the people it wouldn’t have been forced down their throats under pressure of time and threats of violence. The Constitution was sent to the Pennsylvania State Convention before the Constitutional Convention itself had even fully completed its work. The Federalists [1] (oligarchs) marshaled their supporters and forced an early vote.
In September 1787, in a letter to General William Irvine, David Redick describes the frantic efforts of supporters of the Constitution to get immediate ratification in Pennsylvania:
gentlemen runing into the Country and neibouring towns haranguering the rabble. I say were you to see and hear these things as I do you would say with me that the verry Soul of confidence itself ought to change into distrust. . . . I think the measures pursued here is a strong evidence that these people know it will not bear an examination and therefor wishes to adopt it first and consider it afterward (Main, 187–188).On December 18, 1787, in a report published in The Pennsylvania Packet and Daily Advertiser, the defeated delegates to the Pennsylvania State Convention described their plight.
Whilst the gilded chains were forging in the secret conclave, the meaner instruments of despotism, without, were busily employed in alarming the fears of the people, with dangers which did not exist, and exciting their hopes of greater advantages from the expected plan than even the best government on earth could produce.The delegates continued with a description of conditions on the night of the election of delegates to the Pennsylvania State Convention:
The proposed plan had not many hours issued forth from the womb of suspicious secrecy, until such as were prepared for the purpose, were carrying about petitions for people to sign, signifying their approbation of the system, and requesting the legislature to call a convention. . . . The public papers teemed with the most violent threats against those who should dare to think for themselves, and tar and feathers were liberally promised to all those who would not immediately join in supporting the proposed government be it what it would (Storing, 204).
several of the subscribers . . . were grossly abused, ill-treated and insulted while they were quiet in their lodgings, though they did not interfere, nor had any thing to do with the said election, but, as they apprehend, because they were supposed to be adverse to the proposed Constitution, and would not tamely surrender those sacred rights, which you had committed to their charge (ibid, 206).Under the circumstances, it is not surprising that “We the People” were not given the opportunity to vote for or against the Constitution in a referendum. The Framers understood that its chances of approval were slim to none. At the very least, had the Constitution even minimally been an expression of the will of the people, the approval of all thirteen states—not nine—would have been required for ratification, as stipulated in the Articles of Confederation.
2. The second purpose of “We the People” was to notify the states that the consolidated, central government being established was not a confederation of states, as it had been under the Articles of Confederation, but a government whose sovereignty was invested in an hypothesized “people.” This second meaning was not lost on men like Patrick Henry.
One hundred sixty-eight Virginians met and debated the Constitution from June 2 through June 27, 1788. By a vote of eighty-nine to seventy-nine, the delegates voted for ratification. Patrick Henry spoke at length on several occasions. He was passionately and unrelentingly opposed to ratification.
By what right, asks Henry, did the Framers “speak the language of We, the People, instead of, We, the States? . . . The people gave them no power to use their name. That they exceeded their power is perfectly clear” (Storing, 297) (emphasis in original). Henry had been invited to attend the Constitutional Convention but refused to attend. He “smelt a rat in Philadelphia, tending toward the monarchy” (Davis, 227).
Suppressing rebellion
The most immediate and pressing need for the oligarchs was to “insure domestic Tranquility (Preamble).” Taking into account the political context in which the Convention members gathered, insuring “domestic tranquility” becomes synonymous with political oppression, eliminating dissent as a possible response to government policy, i.e. suppressing rebellion, preventing small farmers and mechanics from holding onto what was theirs. To this end congress is given the authority,
“To raise and support Armies”(I,8,8),If this isn’t the formula for a police state, I know not what is. Why all that fire power for a fledgling nation, on a continent to itself? Standing armies were anathema to the early Americans. Says, “Brutus,” a citizen of New York state, writing in October of 1787, “The power in the federal legislative, to raise and support armies at pleasure, as well in peace as in war, and their control over the militia, tend, not only to a consolidation of the government, but the destruction of liberty” (Storing, 109). Why would one have the president as commander in chief if not to give him the power to use the military for domestic purposes, to use its armies against its own people, to “suppress Insurrections” and “domestic Violence?” The only immediate enemies this newly constituted government needed to protect itself against were its own citizens.
“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” (I,8,15),
“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States” (I,8,16),
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence” (IV, 4) (emphasis added),
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States” (II,2,1).
Bear in mind that the first president of the United States was a general and that the first time the United States Army was engaged in battle was with the farmers of western Pennsylvania. In July 1794, George Washington, with Alexander Hamilton by his side, heading up a militia thirteen thousand strong, rode out to collect taxes on locally brewed whiskey. This event came to be known as the “Whiskey Rebellion” and was characterized by Jefferson as a “war on our own citizens” (McMaken, Web). War on our own citizens has been a pretty steady diet over the past two hundred years.
Who is to say what constitutes “insurrection,” “domestic violence,” “rebellion?” Certainly not you or I, dear reader. Article One, Section 9, clause 2, states that, “The privilege—habeas corpus is a “privilege” not a “right”—of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it” (emphasis added). Who is to decide what constitutes “public safety?” Certainly not you or I, dear reader. Notice how a civil right granted in the first half of the clause is rescinded in the second half.
In 1861, President Abraham Lincoln used his power as commander in chief to organize northern armies against a secessionist south, resulting in 610,000 deaths. Three hundred Lakota Indians were massacred by federal troops at Wounded Knee, in South Dakota, in 1890. On Monday, May 4, 1970, four students were killed and nine wounded by National Guard troops during an anti-war demonstration at Kent State University. All of these actions were perfectly legal. In no way did they violate the Constitution as originally ratified.
Public demonstrations, labor strikes can easily be construed as “domestic violence” posing a threat to “public safety.” One example among many is the Pullman strike that took place in the summer of 1894. The strike and boycott shut down much of the nation’s freight and passenger traffic west of Detroit, Michigan. The conflict began in Chicago, IL, on May 11 when nearly 4,000 factory employees of the Pullman Company began a wildcat strike in response to recent reductions in wages. At its peak, the strike involved some 250,000 workers in twenty-seven states. Thirty people were killed.
The mails had to go through. How could the government have acted otherwise? Here is one possibility. Suppose the government were to point its guns in the other direction and demand of the Pullman company that it not lower its wages. Now had that happened it would have been considered an act of unexampled lawlessness and barbarity. Yet when the guns are pointed at workers it is sanctioned and even applauded. Notice how the needs of “public safety” would have been secured by either choice. Workers would not have gone on strike if their wages hadn’t been reduced. The mails would have gone through.
His Excellency the President
Warns Patrick Henry, “Your President may easily become King” (Storing, 310). This, of course, was Hamilton’s design all along. In essence, he got the monarchy he was hoping for. Under the presidential system of government, the president operates independently of the legislature, and is accountable to no one. In England, under a parliamentary system, the executive power is derived from the legislature.
Under the Articles of Confederation, the president held office for one year. Under the Constitution, he holds office for four, usually eight. The longer a president is in office, the more power he accrues, the more opportunity he has to abuse the power he has.
The president’s greatest and most menacing power is his role as Commander in Chief. Observes Patrick Henry,
If your American chief, be a man of ambition, and abilities, how easy it is for him to render himself absolute: The army is in his hands, and, if he be a man of address, it will be attached to him; . . . The President, in the field, at the head of the army, can prescribe the terms on which he shall reign master, so far that it will puzzle any American ever to get his neck from under the galling yoke. . . . Where is the existing force to punish him? Can he not at the head of his army beat down every opposition? (Storing, 311).As of this writing (December 31, 2013) there is deep concern about the current Commander in Chief’s (CIC) using his power to direct drone strikes against alleged conspirators in Pakistan and Afghanistan. Yet there is nothing in the Constitution that denies him that prerogative, if he considers such actions to be consistent with “public safety.”
The previous and current CICs have seen fit to detain indefinitely and without charges, at Guantanamo, those deemed to be enemies who constitute a threat to “public safety.” By similar line of reasoning, the National Defense Authorization Act (NDAA) of 2012 empowers the CIC to treat American citizens in a like fashion.
Under CIC George Bush, American citizen Jose Padilla, charged with terrorist activity, was denied his writ of habeas corpus and detained for a period of three and one half years, during which time he was held in solitary confinement and tortured.
It is certainly no accident that when we think of government we think of “The White House.” The White House is always up to something and something is always happening at the White House. It is the center of attention, commotion, celebration and demonstration. It is no accident that the House of Representatives, the legislative branch speaking for the majority, stands for little and receives little attention. We petition the president the way a serf might petition the Czar, and probably with less satisfaction.
Crushing democracy
Basically, there are two kinds of government: minority rule or majority rule. Monarchy and oligarchy vest all power in a small minority. Where there is democracy the majority is in charge. With a brief respite when there was democracy in ancient Athens, minority rule has prevailed throughout the world. Under the Articles of Confederation, the United States was as democratic as it has ever been. Government was decentralization and accessible to the citizenry. There was rotation in office. There was a unicameral legislature. There was no elitist branch of government to override the more popular house. The majority had a voice.
Such a state of affairs was not what The Framers, a wealthy oligarchy, had in mind. They were intent on excluding the majority as a means to advancing their own financial interests. Madison’s concern was that the majority would be mobilized by some “common passion,” leading to a “sacrifice of the weaker party,” i.e. the minority of aristocratic landholders whom Madison spoke for (F.P., 81). That the minority should rule, to Madison, seems axiomatic.
The opponents of the Constitution (the anti-Federalists) weren’t fooled. Asks Patrick Henry, “Can the annals of mankind exhibit one single example where rulers overcharged with power, willingly let go the oppressed, though solicited and requested most earnestly?” (ibid, 304).The theme of trust permeates the writings of early Americans. The anti-Federalist, “Brutus,” echoes Henry’s concerns above, “Many instances can be produced,” he says, “in which the people have voluntarily increased the powers of their rulers; but few, if any, in which rulers have willingly abridged their authority. This is sufficient reason to induce you to be careful, in the first instance, how you deposit the powers of government” (ibid, 109).
The Anti-Federalists (democrats) did the numbers. When both houses were reduced to quorums, the result would be a country of four million being governed by twenty-five congressmen. As “Lycurgus” of Pennsylvania saw it, the House of Representatives was nothing but a “pretended concession to democracy” (Main, 142). It was “a mere shadow of representation,” according to Melancton Smith, (Storing, 343) and “a mere burlesque,” according to “Brutus” (ibid, 126). What would these same men have to say about our current situation today when a small congressional committee of eight men and women can determine how much can be charged for life-saving medications affecting some thirty million elderly American citizens?
Hamilton opines that “the people commonly intend the PUBLIC GOOD” (emphasis in original) but believes that the Constitution will protect them “from very fatal consequences of their own mistakes” (F.P., 432). Madison has similar concerns and believes that an institution like the Senate will serve “as a defense to the people against their own temporary errors and delusions.” (ibid, 384).
In order to protect the people from themselves it was necessary to create a government that was remote, inaccessible, diffuse, confusing, secret, yet enormous and overpowering, omnipresent and omniscient, a looming, frightening presence, lest the majority get the idea of doing a little governing on their own behalf.
This unreachable, unfathomable government needed to be immutable, irrevocable, unrepealable, unchangeable. In other words, it needed to be cast in stone for all times. Those who conceived of the United States government believed they would rule from beyond the grave and into eternity. Apparently, they have.
What about the oft-touted checks and balances? Won’t they insure that everyone gets a fair shake? Let’s consider what is being checked and what is being balanced.
As intended by Madison, Hamilton and others, the House of Representatives, the more representative body, is being checked by the Senate, the smaller, more elite body. Needless to say, the president, a minority of one, serves as another check. The Supreme Court plays a similar role. Says Hamilton, in Federalist No. 78, “In a republic [the judiciary] is . . . an excellent barrier to the encroachments and oppressions of the representative body” (F.P., 465).
Howe (see above) describes aptly what it is like to be American citizen trying to make a system work that was designed for inefficiency.
when success is subject to innumerable obstacles, when the end desired is distant and highly problematical, when the fruits of effort are subject to veto by officials unresponsive to the public will, initiative and effort are discouraged. It cannot be otherwise. And from the earliest step in the promotion of an idea to its ultimate achievement, one hurdle after another is found in the path, which tends to paralysis of effort and the paralysis of our social forces as well. Herein is the real explanation of the failure of American politics. Herein is the explanation of the lack of political interest. (Howe, 110).As Howe points out, the men who drafted the Constitution “were apprehensive of democratic institutions. They feared popular government and took precautions to limit the expression of the popular will . . . making the Constitution the complicated, difficult, unworkable instrument that it is” (Howe, 102–103).
High on the list of obstacles placed in the way of the American citizen is the Supreme Court itself. In Marbury v. Madison, (1803), the Supreme Court, under John Marshall, took unto itself the right to decide what is and isn’t Constitutional. Of nine men and women appointed for life, five can determine what is the law of the land. In the election of the year of 2000, five men decided who would become president of the United States. This is what minority rule looks like.
What about the balance? The power of the few, the minority, is being balanced against the power of the many. The minority has set up a form of government in which their small number is given parity with the much larger number speaking for the majority. Checks and balances are not about democracy or fair play. They are means of oppressing the needs and wishes of the population at large in favor of a wealthy elite.
The same can be said of the separation of powers. In Madison’s own words, in Federalist 51, “the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other.” (F.P., 322) If everyone checks everyone else, nothing gets done. The legislature is hampered, as intended. Notice how by separating the executive from the legislative, the effect is to weaken the legislature and to strengthen the executive. Said Madison, in a letter to Jefferson, “Divide et impera, the reprobated axiom of tyranny, is under certain qualifications, the only policy, by which a republic can be administered on just principles.”(Holton, 10).
Hamilton refers to “the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments” (F.P., 442). The system he helped create was designed to put a check on that very “propensity.”
The presidential system Americans live under is a uniquely American invention whose primary purpose is to obstruct legislative initiative. In the UK, there is a parliamentary system. The Prime Minister is an elected member of parliament. He is an integral member of the legislative body. If there is conflict, the majority can, if they have the numbers, make a vote of no confidence and the Prime Minister and his cabinet must resign, resulting in a new cabinet or a new election. For his part, the Prime Minister can call an election as a means to getting a legislature more sympathetic to his ideas. These arrangements reduce deadlocks, because there is a way out.
In a parliamentary system there tends to be a higher focus on voting for a party and its political ideas than voting for an actual person. There are real debates. The Prime Minister is held to account during Prime Minister’s Question Time, which provides an opportunity for MPs from all parties to question the Prime Minister on any subject.
In a parliamentary system, elections occur when required, thus avoiding the periods of legislative gridlock that occur in the fixed period presidential system.[2] There are more frequent changes in government. Government is more responsive to changing conditions, which is exactly what Madison wanted to avoid. He wanted government that is immutable and unchanging.
Under the presidential system, other than in cases of impeachment, the president is accountable to no one. In the United States, there is very little open exchange between the executive and the legislature. Once a year the president makes a magisterial “State of the Union” address to congress. This is usually accompanied by applause and genuflection. Rarely if ever is the president challenged by the legislature the way a prime minister is under a parliamentary system. He is the reigning monarch.
The early American oligarchy wanted to keep democracy at bay. It also wanted to keep government at bay so it could conduct its business unhampered by government interference, except in those instances where it was looking for a handout. Inefficient government was its goal.
This is what separation of powers produces: petty bickering, grandstanding and not much else of consequence. A small minority can defeat just about any piece of domestic legislation (Fresia, 140–141). As to foreign policy, the president can make war, at will, which is what he does. The system is working as designed. Empire was what Hamilton had in mind.
Phantom government
We live under a phantom government because much of what our government does is concealed under a veil of secrecy. Like a phantom, our government remains invisible and unpredictable. We think we know where and what it is, but we don’t.
Secrecy was written into the fabric of the U. S. Constitution. At its discretion, Congress shall hide from us what it doesn’t want us to know: “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy (I,5,3).”
It is common understanding that governments operate in secrecy. It is quite unusual for a government to claim that right in its founding document. Yet it is consistent with the siege state mentality that seems to have prevailed at the time the Constitution was being written. The Constitutional Convention was held in secrecy. There were no official minutes taken. In 1840, fifty-three years after the Constitution had been written, Madison’s personal notes were made available to the public. This is a government conceived in secrecy and consumed by secrecy.
Writing close to a hundred years ago, Max Weber observed that “officialdom’s most important instrument of power is the transformation of official information into secret information by means of the infamous concept of ‘official secrecy,’ which ultimately is merely a device to protect the administration from control” (emphasis in original) (Weber, 179). Where there is secrecy, there is something to hide.
The government, operating in secrecy, has a monopoly on truth. They know what they are doing. We don’t. And that is the way it is supposed to be. The fierce attachment to the lie is necessitated by the duplicity of those in power. There are two realities, a benign fake reality, the one created for us by the oligarchs who rule and a nasty, sinister reality, the reality we are never to fully know.
As it is in Franz Kafka’s novel, the Castle, our attempts to connect to government, pin it down, get it to respond, meet with avoidance, confusion, frustration, alienation and often despair. None of this is accidental. The Framers, especially James Madison, understood how democracy worked and how to crush it. Says Madison, “It may be suggested, that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures” (F.P., 385).
Observes Vernon Parrington, “Set government apart from the people, or above them, and public interest is lost in a sense of futility” (Parrington, 357). Holton speaks of “the sinister beauty of the Constitution” and rightly points out that when, “citizens find they cannot influence national legislation, their tendency is not to curse the system but to blame themselves” (Holton, 273).
When you create large election districts, distance separates one person from the next. People don’t know each other. They lack a common local meeting place where there can be an exchange of ideas, and so there is no “danger of combining in pursuit of unjust measures.” “Unjust measures” are those that threaten the power of the ruling elite, landholding aristocrats like Madison. Democracy is crushed before it can even take root.
Madison is quite explicit on the subject of passions, others, not his. He is contrasting reason, i.e., his views, with the passions, i.e. the views of those of lesser means. It is Madison’s concern that “the passions, therefore, not the reason, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government” [emphasis in original] (F.P., 317). What are the passions that must be controlled? The passion for political justice, the passion that will deny minority rule to men like James Madison.
The power elite already know each other and hence have no difficulty in plotting their moves. Observed Melancton Smith of New York, in 1788, “The great easily form associations; the poor and middling class form them with difficulty” (Storing, 341). As a consequence, concludes Smith, “the government will fall into the hands of the few and the great. This will be a government of oppression” (ibid). How prescient.
Consolidating the government in one central location at a significant distance from governed has the same undermining effect as large election districts. “In a country, where a portion of the people live more than twelve hundred miles from the center,” says Smith, “I think that one body cannot possibly legislate for the whole. . . . Can the best men make laws for a people of whom they are entirely ignorant?” (ibid, 354).
The government is phantom and difficult to pin down because the Constitution was deliberately written in vague generalities. “Brutus” of New York, writing in 1788, finds that most of the articles in the Constitution “are conceived in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions to unfold the extent of their meaning” (ibid, 166). He is concerned that the new government “has a specious resemblance of a free government.” “The gilded pill,” he warns, “is often found to contain the most deadly poison” (ibid,122).
Madison and Hamilton believed they were writing a Constitution for all times in which case it makes sense not to get too specific. If you get specific then the Constitution might outlive its viability. Says Hamilton, “Constitutions should consist only of general provisions; the reason is that they must necessarily be permanent, and that they cannot calculate for the possible change of things.”
There is another, perhaps more obvious, reason. If the Constitution is written in vague terms, then those in power can creates laws to suit their needs. There are no constrictions.
In February 1791, barely halfway through his first term as president, George Washington was confronted with a significant Constitutional question: Does the Constitution grant Congress the right to create corporations, in this instance, a national bank, as proposed by Hamilton and legislated by Congress? Such power is not spelled out in the Constitution. How then can the government legally create a national bank?
After enumerating the many specific powers granted to Congress, Article I, Section 8, of the Constitution ends as follows: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Well, there you have it, says Hamilton, “necessary and proper.” The bank is necessary and proper and therefore within the purview of Congress.
Innumerable powers have been acquired by Congress, the president, and the courts in the two centuries or so that have passed since the first “interpretation” of the Constitution was made. Volumes have been devoted to “Constitutional law,” interpreting what the Constitution “means.” In essence, the Constitution “means” what those in power say it means, just as the Anti-Federalists (democrats) feared.
Nowhere does the U.S. Constitution prescribe terms limits to its office holders, the president and members of Congress. The Articles of Confederation had specified that (1) “delegates shall be annually appointed; (2) “no person shall be capable of being a delegate for more than three years in any term of six years”; and (3) there is “a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.”
Rotation in office, powers of recall, the Framers would have none of it. If there are term limits spelled out, then the power elite loses control. Without term limits what ensues is an aristocracy of office holders, which is what Madison and Hamilton had in mind. Currently there are congressmen who have been in office for thirty, forty, fifty years. Better to leave things vague.
As long as matters are vague, there is little or no accountability. For example, Article 1, Section 9, Clause 7 says, “No money shall be drawn from the treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.” It is the “from time to time” that amuses me. It could read, “once every six months,” “once a year” or “once every half century.” But any specificity would require accountability, apparently not high on the list of the Framers’ priorities.
Article III, Section 1 reads, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” What constitutes “good Behaviour?” And who will decide? Another example of deliberately ambiguous language whose purpose is to disempower those who might want to set limits for a court beyond the reach of the majority. The one example of a Supreme Court judge being impeached is Samuel Chase. The House voted for impeachment. The Senate voted against and Chase retained his seat.
The letter of the law
Observes a Maryland farmer in March of 1788, “There are but two modes of governing mankind, by just and equal law, enforced impartially on all ranks of society, or by the sword” (emphasis in original) (Storing, 266). In other words, we are to choose between justice and tyranny.
In the United States, we are living under a government of laws, laws that rarely yield, even under extreme circumstances, to the demands of justice. The law is sacrosanct for those of us without the power to contradict it. For those in power, the law is a convenience and a weapon.
We live in a society dominated by lawyers and lawgivers, a society characterized by its legalese and litigiousness. For these dubious benefits, we are indebted to John Marshall, America’s first chief justice, a man characterized by “the virulence of his hatred of democracy. No man in America was less democratic in his political convictions” (Parrington, Vol. II, 23). This was the man who, for thirty-five years, “molded the plastic Constitution to such form as pleased him” (ibid, 22).
It is thanks to John Marshall that five men and women, a majority of Supreme Court Justices appointed for life, dominate our political horizon. Although we have come to revere the nine men and women in black robes as men and women of integrity, motivated by the loftiest of values, above the political fray, in fact, most of their decisions are political decisions, reflecting unexpressed political bias. Says Parrington, “It is a dangerous thing for the bench to twist the law to partisan or class purposes, yet to this very thing John Marshall was notoriously given” (ibid, 23). It was he, more than anyone, who insisted on the irrevocable nature of contracts. Here is a telling example.
In 1794, the Georgia state legislature had contracted to sell thirty-five million acres of land, basically the states of Alabama and Mississippi, at less than one and one half cents an acre. This case has come to be known as the Yazoo Fraud case. A new legislature repealed the law and rescinded the contract. A few of the investors took the case to the Supreme Court. In granting awards to the investors, Marshall argued that contracts are inviolable and that the people are bound by their agents, no matter how corrupt. No justice here. Law all the way. Marshall believed that “the law of business must be made the law of the land” (ibid, 24). One could easily argue that he has succeeded in that endeavor to a degree he might never have anticipated.
Are contracts irrevocable and forever? What about the compact that formalizes the relations between government and the governed? Should that contract endure indefinitely or should it be modified periodically to reflect the changing times? Is government to be permanent or responsive?
The rules can change overnight, depending on who has the power. For example, Madison placed a great deal of stress on the importance of a stable government when defending his allegiance to the U.S. Constitution. Jefferson was of the opinion that whenever two of the three branches of government, each by a two-thirds majority, agreed that the Constitution had been breached or was in need of modification, a convention should be called. Madison was adamantly opposed. Jefferson’s proposal was never considered.
Too many appeals to the people concerning the structure and functioning of government would imply “some defect in the government.” Recurring conventions would deprive the government of “requisite stability” and “that veneration which time bestows on everything” (F.P., 314). Elsewhere, Madison speaks of “the mischievous effects of a mutable government” (ibid, 380).
These are noble sentiments. However, at the time they were being uttered, Madison, himself, was part of a secret conclave, involved in extra-legal activity to replace a legally established government under the Articles of Confederation with a new government under the Constitution.
The existing contract between the existing government and the governed is a matter of small consequence when Madison, in search of power to defend his personal interests, seeks to overthrow it. Says “Brutus” of New York, in 1787, “This Constitution considers the people of the several states as one body corporate, and is intended as an original contract, it will therefore dissolve all contracts which may be inconsistent with it “ (Storing, 133).
The United States and France had signed two treaties. These treaties, French loans, and French military are what allowed the United States to prevail in the war against Great Britain. Apparently, these particular contracts weren’t worth the paper they were written on. Under the Jay Treat, France was cut loose and replaced by Great Britain.
Thomas Paine believed that the contract between government and governed was up for renewal with each new generation and that it was a prerogative of the majority to remake the fundamental law so as it bring it into agreement with current needs and wishes. The contract that governs should be an expression of the living, not the dead. Said Paine,
Every age and generation must be free to act for itself in all cases as the ages and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. . . . It is the living, and not the dead, that are to be accommodated [emphasis in original](Parrington, 341).
Patrick Henry quotes from the Virginia State Constitution to the same effect.
Section 3 reads:
That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration. And that, when any government shall be found inadequate or contrary to these purposes, a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.It is worth noting that over the past two hundred years, while the United States has done nothing to fundamentally alter the law of the land, the French have had five Constitutions and are now living under their fifth republic. One could say, “Oh, how silly, childish and irresponsible! When are those French going to grow up and have one fixed, stable government the way we Americans do?” Someone else might say, “How bold and courageous of the French to experiment with government. How noble that they were willing to take the measure of the times and respond accordingly.”
The nineteenth century in France was turbulent times. Yet none of the government changes in any way hampered the French economy, or France’s standing in the community of nations. French culture flourished. France was the center of art and literature.
And most importantly, if one were to compare the political insight and understanding of the average American as opposed to the average Frenchman, one would undoubtedly discover an appalling naiveté and lack of political sophistication among the Americans who seem quite willing to accept unquestioningly whatever its government does in its name. Rarely do Americans challenge their national government and hold it accountable. The French are much more willing to take to the streets and are a lot more vocal in their disapproval of government policy. They have a political life that is many times more stimulating and engaging than their counterparts across the Atlantic.
Speculators on the prowl
Some of the most ardent supporters of the new government under the U.S. Constitution were speculators holding government war bonds. Returning soldiers were in need of money. The bonds they had purchased in support of the war were their only liquid assets. Sensing that the farmers were desperate for money, speculators toured the country, grabbing up bonds and paying as little as fifteen cents on the dollar. Under the Constitution, they were to be guaranteed full value on bonds they had purchased at bargain prices. Clearly, there was no concern for the small farmers who had risked their lives for the cause. In 1789, the Pennsylvania state government raised £111,000 in taxes. £70,000 went to just twelve bondholders.
The first sentence of Article I, Section 10, of the U.S. Constitution reads as follows:
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.I will repeat the section, passing over what is archaic or not relevant to the current discussion. Now we have an abbreviated version that contains the two key elements:
No State shall . . . coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any . . . Law impairing the Obligation of Contracts.These words were aimed directly at the state legislatures that had successfully undermined bond speculators in their efforts to collect the full face value and the full interest on the bonds they had purchased for pennies on the dollar. States had been issuing paper money to ease the farmers’ burden. That option was outlawed by the new federal Constitution. “No State shall . . . make any Thing but gold and silver Coin a Tender in Payment of Debts.”
At the time the Constitution was written, “Obligation of Contracts” had a specific meaning. The contracts being referenced were the bonds held by speculators. State legislatures had used various stratagems to interfere with the execution of these contracts. In Rhode Island, legislators sympathetic to the debtors’ cause were issuing paper money. In New York, North Carolina and Georgia legislatures passed either tender laws, recognizing alternate means of payment, or issued paper money. Any such actions, by virtue of the new Constitution, were now illegal.
As far as the speculators were concerned, these few phrases were the core of the legal document they had created. These few phrases alone justified the entire endeavor. “As a result of the protection that Section 10 afforded creditors, more people proclaimed that clause ‘the best in the Constitution’ than any other in the document.” The governor of Virginia declared Section 10, “a great favorite of mine.” A New Jersey Federalist claimed. “Nothing, in the whole Federal Constitution, is more necessary than this very section.” (Holton, 9).
This quote from Howard Zinn’s A People’s History of the United States frames the issue of contracts somewhat differently.
To protect everyone’s contracts seems like an act of fairness, of equal treatment, until one considers that contracts made between rich and poor, between employer and employee, landlord and tenant, creditor and debtor, generally favor the more powerful of the two parties. Thus, to protect these contracts is to put the great power of the government, its laws, courts, sheriffs, police, on the side of the privileged-and to do it not, as in premodern times, as an exercise of brute force against the weak but as a matter of law (Zinn, 99).Many contracts have their basis in an inequality of power. Contracts of debt are an obvious example. If you default on your mortgage, you might find yourself sleeping in a tent instead of the house you purchased. However, if you are the bank that issued the mortgage and if you the bank run out of money, you simply go to the government and ask for money and get what is known as a “bailout,” euphemism for “handout.”
In ancient times, there was debt slavery. If you couldn’t pay the money you owed, you became a slave to your creditor. In nineteenth century England, there was debtors’ prison. The current predator class has students enslaved to a debt that it will take a lifetime to liquidate.
In the United States, since its founding, the law—“the gilded chain[s] . . . of despotism” (Storing, 204)—has repeatedly been used to the benefit of the few at the expense of the many. In An Economic Interpretation of the Constitution, Beard comments on “the peculiar position assigned to the judiciary, and the use of the sanctity and mystery of the law as a foil to democratic attacks” (Beard, 161).
In certain liberal circles, no how matter how bleak the outlook, there is often an almost audible sigh of relief, “Well, at least we have a government of laws and not a government of men.”
If one reflects for but a moment one is struck by the fact that laws are concepts and that concepts don’t govern. Only people do. Laws are written by people and enforced by people, usually men in positions of power. Said political philosopher Thomas Hobbes, law is “the word of him that by right hath command over others” (Hobbes, 119). Thus, we can have a government of laws, a government forged in the interests of those in power, or a government based in justice, a government that will favor the rest of us. In ancient Athens, in the fifth century, the people in their Assembly were the highest power, not the laws (Hansen, 174).
Was there a coup d’état?
On May 25, 1787, fifty-five men met in secret to undo one form of government under the Articles of Confederation and replace it with another under the U. S. Constitution. The duly constituted Constitutional Congress, the governing body since the U. S. came into existence did not meet and decide to supersede itself and replace itself with a new form of government. An extralegal government set up a new government in its place over and against the wishes and instructions of those who authorized the convention. As Woody Holton observes, “Whatever else it was, the process that resulted in the U.S. Constitution was indisputably, according to the rules in place at the time, unConstitutional” (Holton, 180). “Had Julius or Napoleon committed these acts,” comments Professor John W. Burgess, “they would have been pronounced coups d’états” (Beard, 218).
Coup d’état can be defined as an action taken by a small group of conspirators acting in secret whereby a legally constituted government is undone and replaced by another. Was there a coup d’état?
Comparing events in the United States in 1787 with events in France a little more than a decade later will be instructive. What Napoleon engineered on 18 Brumaire (November 9, 1799) has been called a coup. Do the events in France in 1799 resemble events in the United States in 1787? Both countries were inventing new governments and were plagued with financial crisis and political intrigue. In both countries, one legally constituted government was overthrown by extra-legal means and replaced with another.
France’s first Constitution goes back to 1791. It was a short-lived Constitutional monarchy. Under the second Constitution, France was no longer a monarchy. It was now an oligarchy, calling itself a republic. Elections were to be held annually. Provision was made for an executive council composed of twenty-four members, serving for one year only.
In reaction against the terror and the militarization of a society in a state of constant warfare, a third, more conservative Constitution was adopted in 1795. Under this new Constitution, instead of one house speaking for everyone, there was a bicameral legislature: a Council of Five Hundred and a Council of Ancients (made up of 250 members). There was to be an executive made up of five directors known as the Directory, chosen by the Ancients out of a list sent to them by the Five Hundred.
In the summer of 1798, Napoleon was on his way to conquer Egypt. A year later, he returned to France. He had suffered an ignominious defeat. Yet he received a hero’s welcome and used his popularity and alleged victory to establish himself as ruling monarch.
On the morning of November 9, 1799 (18 Brumaire according to the revolutionary calendar) Napoleon, operating in secrecy, and with the connivance of Abbé Sieyès, one of the five directors, and former foreign minister Charles Talleyrand, orchestrated an overthrow of the existing government. The Directory of five was replaced with a Consulate of three, with Napoleon as First Council and eventually emperor for life.
When Napoleon returned from Egypt with his seditious plans, the Directory, established by the Constitution of 1795, had been in place for four years and had made decent progress in stabilizing the economic situation at home and making reasonable adjustments to the diplomatic situation in Europe. Says historian Crane Briton,
It is pretty clear now that the Constitution of 1795 was so molded by events and leaders that in 1799 the essential institutions . . . needed but slight alterations and additions to accommodate themselves to the much-praised Napoleonic internal stability (Brinton, 212).
Similar observations had been made about the Articles of Confederation. They had proved their worth over the course of an eight years war with England. The citizenry were content with their various governments under the Articles of Confederation. Thus, there was no need for a savior in France in the person of Napoleon and his co-conspirators, or in the United States in the person of Hamilton and his co-conspirators. Nonetheless the coups occurred, driven primarily, in both cases, by needs for personal power.
Prior to the coup in France, troops were conveniently deployed around Paris. In the United States, when the Revolution ended, there was a suggestion within the officers’ corps that they not abandon their arms until they had been properly paid and recognized. This was an armed coup in the making. “Brutus” declared, “It remains a secret, yet to be revealed, whether this measure was not suggested, or at least countenanced, by some who have had a great influence in producing the present system [i.e., the Constitution]” (ibid, 159).
The Continental army officers formed “The Society of Cincinnati,” after the Roman general, Cincinnatus and met three times a year. Hamilton chose May 1787 to hold the Constitutional Convention, knowing that the Society of Cincinnati would be meeting down the street. Thus, in both France and the United States there was a military presence at the time of an extra-legal change in governments.
The plan in France was, first, to persuade the Directors to resign, then, second, to get the Council of Ancients and the Council of Five Hundred (the upper and lower houses of the legislature) to appoint a pliant commission that would draw up a new Constitution to the plotters’ specifications.
On the morning of 18 Brumaire, rumors were spread that the extreme left was planning a coup. [3] The legislature sought refuge in a Paris suburb. The resignation of three of the five Directors prevented a quorum and thus practically abolished the Directory (the executive branch).
By the following day, the legislators realized that they were facing an attempted coup rather than being protected from a Jacobin rebellion. A motion was raised in the Council of Five Hundred to declare Napoleon an outlaw. Napoleon’s brother, Lucien, told the soldiers guarding the Councils that the majority of the Five Hundred were being terrorized by a group of deputies brandishing daggers. Lucien ordered the troops to expel the violent deputies from the chamber. The Council of Five Hundred was dispersed, thus bringing an end to one form government and setting the stage for the next, Napoleon as emperor for life.
In the United States, about a decade earlier, there was similar political turmoil centering on the new Constitution. Should it be ratified or not? At the outset of their respective state ratifying conventions, seven states, that is, a majority—Massachusetts, New Hampshire, Maryland, Virginia, Rhode Island, New York, and North Carolina—were against ratification. It is not surprising that the oligarchy behind the Constitution, determined to have its way, resorted to deception, manipulation, destruction of ballots, mail tampering and violence.
In Pennsylvania, at the time of the Pennsylvania State ratifying Convention, several members in opposition to the U.S. Constitution, feeling they needed more time to deliberate before being forced into a decision, left the convention, denying the majority a quorum. Officers “broke into their lodgings, seized them, dragged them through the streets to the State house, and thrust them into the assembly room, with clothes torn and faces white with rage” (Beard, 331–332).
In Dobbs County, North Carolina, the Anti-Federalists (democrats) had a clear lead. Federalists (oligarchs) caused a riot and destroyed the ballots. Not only did the Federalists tamper with elections, print falsehoods, and use intimidation and manipulation to win votes, they also exercised control over the mails, thereby delaying the arrival of critical news and sometimes not delivering the mail at all, always selectively handicapping their opponents.
I think there is a strong argument equating these events in the United States at the time of the Constitutional Convention with those of 18 Brumaire in France. The principal difference is that in the annals of French history the replacement of one government with another, without legal authority, has come to be known as a coup d’état. While in the United States, very similar events are packaged quite differently. There is little mention of conspiracy. The secrecy is minimized. The lying, manipulation and scare tactics are left out of most accounts. The Articles of Confederation are denigrated as ineffective and irreparable. The Constitution is portrayed as a necessary and desirable alternative.
The coup in the United States was as successful as it was because it moved fast in establishing its legitimacy and because of the propaganda effort surrounding the endeavor, starting with the oft-praised Federalist Papers. Men like James Madison and Alexander Hamilton used their visibility and the respect they enjoyed to engineer an overthrow of government under the guise of good citizenship. They needed an icon, an official stamp of approval for their seditious activities. That role was filled by George Washington, known in some circles as “Honest George,” in others as, the man who stole land from the Indians and even his own soldiers.
American history is for the most part written and taught in the service of myth. The myths about “Honest George” and the other “Founding Fathers” continue to populate our history books. Is there a single high school text that informs its readers that the Constitutional Convention was held in secrecy and explains why, that seven of thirteen states were initially opposed to ratification and explains why? I’ll wager not. Is there a single college history course that deals exclusively with the critical period 1776 to 1788 when an emerging democracy was crushed and replaced with an oppressive oligarchy? I’ll wager not.
Americans are schooled in credulity and acquiescence. Honest critical thought in the areas of political life and government are anathema. American exceptionalism rules. We are different. We are better. We are benign. We are defenders of democracy around the world. Our leaders are above reproach.
Reality is the exact opposite. The United States was born in secrecy and lawlessness. It has been true to its origins ever since. Maybe it is time we opened our eyes.
Endnotes
1. As an example of their cunning disregard for the truth, men like Madison and Hamilton marketed themselves as “Federalists,” when in fact they were “Nationalists” in favor of a strong central government and opposed to a “Con-Federation” of independent states. In effort at clarification, I refer to “Federalists” as “oligarchs” and “anti-Federalists” as “democrats.”
2. Recently, the American government shut down because of a standoff between the executive and the legislative branches.
3. In the United States Shays Rebellion of 1786 played a similar role.
Sources
Barber: Benjamin Barber, Strong Democracy: Participatory Politics for a New Age.
Beard: Charles Beard, An Economic Interpretation of the Constitution.
Brinton: Crane Brinton, A Decade of Revolution, 1789–1799.
Davis: Davis: Kenneth C. Davis, America’s Hidden History: Untold Tales of the First Pilgrims, Fighting Women, and Forgotten Founders Who Shaped a Nation.
F.P.: Federalist Papers.
Fresia: Jerry Fresia, Toward an American Revolution: Exposing the Constitution and Other Illusions.
Gunnell: John G. Gunnell, Political Philosophy and Time.
Hansen: Mogens Herman Hansen: The Athenian Democracy in the Age of Demosthenes.
Hobbes: Thomas Hobbes, Leviathan.
Holton: Woody Holton, Unruly Americans and the Origins of the Constitution.
Howe: Frederic C. Howe: Revolution and Democracy.
___________________________: The Confessions of a Reformer.
Main: Jackson Turner Main, The Anti-Federalists.
McMaken: “Founding Fathers.’”
Parrington: Vernon L. Parrington, The Colonial Mind, 1620–1800.
Parrington, Vol. II: Vernon L. Parrington, Main Currents in American Thought: The Romantic Revolution in America, 1800—1860.
Storing: Herbert J. Storing, editor, The Anti-Federalist: Writings by the Opponents of the Constitution.
Weber: Max Weber, Political Writings.
Zinn: Howard Zinn, A People’s History of the United States: 1492–Present.
Arthur D. Robbins is the author of “Paradise Lost Paradise Regained: The True Meaning of Democracy.” See http://www.acropolis-newyork.com.
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