Enough with the Holy Founders' Undemocratic Constitution

The U.S. constitution has remained in place with occasional substantive amendments over more than 220 years.

U.S. Senator Bernie Sanders in a foreword to the book Dollarocracy wrote that, “we cannot govern our own affairs when our national, state, and local debates are bought and sold by billionaires, who use thirty-second commercials to shout down anyone who disagrees…The money and media election complex, producing a slurry of negative ads, spin, and obstruction, is not what the founders intended.” [1]

Sanders was right to suggest that the United States’ revered “founding fathers” would be scandalized by the plutocratic madness of the big money and big media elections racket that passes for popular democracy in the ever more openly oligarchic U.S. today.

Jefferson, Madison, Adams and other U.S. founders (including even the state-capitalist Alexander Hamilton) would be revolted by the crass commercialism and mass-marketed manipulation that lay at the heart of contemporary major-party U.S. politics.

Still, we should not imagine that the founders were champions of anything remotely like popular self-rule. Democracy was the last thing they intended. Drawn from the elite propertied segments of late British colonial North America, the delegates to the U.S. Constitutional Convention shared their compatriot John Jay’s view that “the people who own the country ought to govern it.”

As the celebrated U.S. historian Richard Hofstader noted in his classic text The American Political Tradition and the Men Who Made it (1948): “in their minds, liberty was not linked not to democracy but to property.” Democracy was a dangerous concept to them, conferring “unchecked rule by the masses,” which was “sure to bring arbitrary redistribution of property, destroying the very essence of liberty.”

In Hofstader’s account, the New England clergyman Jeremy Belknap captured the fundamental idea behind the Founders’ curious notion of what they liked to call popular government. “Let it stand as a principle,” Belknap wrote to an associate, “that government originates from the people, but let the people be taught…that they are unable to govern themselves.”

Hofstader’s take on the Founders was born out in historian Jennifer Nedelsky’s comprehensively researched volume Private Property and the Limits of American Constitutionalism (1990). For all but one of the U.S. Constitution’s framers (James Wilson), Nedelsky noted, protection of “property” (meaning in essence the people who owned large amounts of it) was “the main object of government.” The non-affluent, non-propertied and slightly propertied popular majority was for the framers “a problem to be contained.”

To be perfectly blunt, popular sovereignty was the U.S. founders’ ultimate nightmare.

Anyone who doubts the anti-democratic character of the Founders’ world view should read the Federalist Papers, written by the leading advocates of the U.S. Constitution to garner support for their preferred form of national government during the late 1780s. In Federalist No. 10, James Madison argued that democracies “have ever been spectacles of turbulence and contention” and “incompatible with…the rights of property.” Democratic governments gave rise, Madison felt, to “factious leaders” who could “kindle a flame” amongst the dangerous masses for “improper and wicked projects” like “the printing of paper money,” “abolition of debts,” and “an equal division of property.”

“Extend the [geographic] sphere [of the U.S. republic],” Madison wrote, and it becomes “more difficult for all who feel it to discover their own strength and act in union with each other.”

That was an explicit statement of anti-democratic/anti-popular intent. So was the following argument given by Madison at the Constitutional Convention on behalf of an upper U.S. legislative assembly (the Senate) of elite property holders meant “to protect the minority of the opulent against the majority” and to thereby “secure the permanent interests of the country against innovation:”

“In framing a system which we wish to last for ages, we should not lose sight of the changes which ages will produce. An increase of population will of necessity increase the proportion of those who will labour under all the hardships of life, and secretly sigh for a more equal distribution of its blessings. These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former. No agrarian attempts have yet been made in in this Country, but symptoms, of a leveling spirit, as we have understood, have sufficiently appeared in a certain quarters to give notice of the future danger. How is this danger to be guarded against on republican principles? How is the danger in all cases of interested coalitions to oppress the minority to be guarded against? Among other means by the establishment of a body in the government sufficiently respectable for its wisdom and virtue, to aid on such emergences, the preponderance of justice by throwing its weight into that scale. Such being the objects of the second branch in the proposed government, a considerable duration ought to be given to it.”

Consistent with these openly authoritarian sentiments, the nation’s rich white fathers crafted a form of “popular government” (their deeply deceptive term) that was a monument to popular incapacitation. The U.S. Constitution’s preamble claimed that, “We the people” had formed a new government “in order to…establish Justice… promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” But the framers’ fear and loathing of the “wicked,” “factious” and “violent” masses shaped the structure of America’s not-so democratic experiment at inception.

The Constitution divided the federal government into three parts, with just one-half of one of those three parts (the House of Representatives) elected directly by “the people” – a category that excluded blacks, women, Native Americans, and property-less white males (that is, most people in the early Republic).

It set up elaborate checks and balances to prevent the possibility of the common people influencing policy to any significant degree. It omitted any mechanism to enforce elected wealthy representatives’ direct accountability to “the people” between elections and introduced a system of intermittent, curiously staggered elections (two years for the House, six years for the Senate, and four years for the presidency) precisely to discourage sweeping and focused electoral rebellions by the majority.

It created an elite Supreme Court appointed for life with veto power over legislation or executive actions that might too strongly bear the imprint of the dangerous masses.

It sanctified the epic un-freedom and anti-democracy of black chattel slavery, permitting slave states to count their savagely disenfranchised and incapacitated chattel towards their Congressional apportionment in the House of Representatives. The Constitution’s curious Electoral College provision guaranteed that the popular majority would not directly select the U.S. president —even on the limited basis of one vote for each propertied white male.

It is true that the Constitution’s Article V provided a mechanism technically permitting “We the People” to make critical amendments to the nation’s charter document. But the established process for seriously amending the U.S. Constitution is absurdly difficult, short of revolutionary and civil wars (and of course the U.S. War led to the Constitutional abolition of slavery and the formal introduction of Black voting rights, not actually achieved in durably practice until won by the Civil Rights Movement during the middle 1960s).

As the progressive Constitution critic Daniel Lazare observes, “Moments after establishing the people as the omnipotent makers and breakers of constitutions, [the 1787 U.S. Constitution] announced that they would henceforth be subject to the severest of constraints. Changing so much as a comma in the Constitution would require the approval of two-thirds of each house of Congress plus three-fourths of the states.”

At the end of the 18th century, that means that 4 of the 13 states representing less than 10 percent of total U.S population could forbid any change sought by the rest. Today, 13 of the nation’s 50 states can disallow constitutional changes while containing just more than 4 percent of the nation’s population.

“The people,” Lazare remarks, “did not assert their sovereignty in Philadelphia in 1787. Rather, the founders invoked it. Once they uttered the magic incantation, moreover, they hastened to put the genie back in the bottle by declaring the people all but powerless to alter their own plan of government.” This harsh reality defies both the Constitution’s preamble and the U.S. Declaration of Independence’s determination that governments “derive[e]…their just powers from the consent of the governed.” It negates popular sovereignty, as intended.

As Lazare and other Constitutional scholars have shown, we are still dealing on numerous levels with the purposefully authoritarian consequences of the nation’s practically deified founding charter. Democratic politics are gravely crippled in the U.S. by numerous factors and forces (not the least of which is the development of a modern corporate and financial capitalism of epic national and global reach) that have developed and emerged over the last 22-plus decades, but the democracy-deadening procedural grip of the revered U.S. Constitution continues to play a critical role in that disablement.

U.S. progressives have long advocated constitutional amendments meant to more properly align U.S. politics and policy with public opinion, which stands well to the left of both of the nation’s reigning, business-captive political organizations.

Among the changes proposed through the amendment route: abolition of the anti-majoritarian Electoral College and the introduction of direct national popular election and majority choice either in a first multi-party round or (if no candidate obtains a majority in the first round) a runoff race between the top two presidential candidates; reversal of the Supreme Court’s equation of political money and “free speech”; the full public financing of campaigns (eliminating private money from public elections); undoing the special legal “personhood” protections enjoyed by corporations and reversing the plutocratic Citizens United decision; the introduction of proportional representation (whereby seats are awarded to parties in accord with their share of the vote, opening the door for significant third, and fourth parties) into Congressional elections; the elimination of partisan gerrymandering in the drawing of electoral districts; an economic democracy amendment requiring (among other things) that economic institutions incorporate internal democracy, social responsibility, and environmental sustainability; the mandating of well-funded and genuinely public and non-profit, non-commercial media.

But chances are slight for winning real socially progressive and democratic changes in the nation’s economy, society, and polity through constitutional amendments when alteration in the nation’s political and government rulebook require the support of super-majorities among plutocratically selected politicians who sit in the US Congress and in the nation’s 50 state legislatures largely at the behest of the nation’s unelected dictatorship of wealth. The same corporate and financial largesse that plays such a critical role in tilting the nation’s elections towards the business-friendly right would also come into play in powerful ways in fighting efforts to amend the U.S. Constitution to further the causes of social justice, equality, democracy, and environmental sustainability.

Around the planet, “constitutions do not last very long.” As the U.S. academicians Thomas Ginsburg, Zachary Elkins, and James Melton note in their book The Endurance of National Constitutions (2009), “The mean lifespan [of national constitutions] across the world since 1789 is 17 years. …the mean lifespan in Latin America and Africa is 12.4 and 10.2 years, respectively…Constitutions in Western Europe and Asia typically endure 32 and 19 years, respectively… [Since] World War I, the average lifespan of a constitution …[is] 12 years.”

The U.S. is different. Its absurdly venerated founding constitution has remained in place with occasional substantive amendments over more than 220 years. The absurdly long endurance of this purposefully authoritarian, wealth- and property-protecting document is nothing to be proud of.

Those who advance progressive amendments to the U.S. Constitution are right to sense the importance of a nation’s rule-making political and governmental charter. Still, given the intentionally remarkable difficulty of amending the US Constitution in progressive ways and the profoundly and purposefully undemocratic nature of the Constitution more broadly, it really makes more sense for Left (and other) U.S. democracy activists to think of constitutional change in terms of a total re-write. Pardon my sacrilege, but it’s long past time to stop standing in awe of the framers’ explicitly authoritarian document and to think about designing and creating a new governmental structure appropriate to social and democratic values in the 21st century.

Serious advocates of popular sovereignty should call for – imagine – a new U.S. Constitutional Convention dedicated to building and empowering popular democracy, not checkmating and containing it[2].

Other countries hold such constituent assemblies (for example, Venezuela in 1999, Bolivia in 2006-7, and Ecuador in 2007-2008) and so should the U.S. Certainly, it’s absurd to think that a document crafted by wealthy slave-owners, merchants, and other vast property-holders with the explicit purpose of keeping the “wicked” popular majority and its “secret sigh for redistribution” at bay can function in meaningful service to popular self-rule in the 21st (or any other) century.

1 .Foreword to John Nichols and Robert W. McChesney’s important book Dollarocracy: How the Money and Media Election Complex is Destroying America (New York: Nation Books, 2013),

2. So argues the highly respected legal scholar and professor Sanford Levinson. See his books Our Undemocratic Constitution (Oxford University Press, 2006 and Framed: America’s 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012).

For examination and understanding of the Founders' struggle to fulfill the philosophy and principles underlying the Declaration of Independence, please take the time to read John Quincy Adams' "Jubilee" Address.

That Address may be read, in its entirety, as indicated below, but for those who prefer to read a brief synopsis, consider the following:

John Adams' son, John Quincy, was 9 when the Declaration of Independence was written, 20 when the Constitution was framed, and from his teen years, served in various capacities in both the Legislative and Executive branches of the government, including as President. His words on this subject should be instructive and enlightening, considering the article referenced in this post.
In the Year 1839, he was invited by the New York Historical Society to deliver the "Jubilee" Address honoring the 50th Anniversary of the Inauguration of George Washington. He delivered that lengthy discourse, and in it, he traced the history of the development of the ideas underlying and the actions leading to the establishment of the Constitution which structured the United States government.
His 50th-year summation seems to be a better source than those of recent historians and politicians for understanding the kind of government the Framers, in 1787, framed .
He addresses the ideas of "democracy" and "republic" throughout, but here are some of his concluding remarks:
"Every change of a President of the United States, has exhibited some variety of policy from that of his predecessor. In more than one case, the change has extended to political and even to moral principle; but the policy of the country has been fashioned far more by the influences of public opinion, and the prevailing humors in the two Houses of Congress, than by the judgment, the will, or the principles of the President of the United States. The President himself is no more than a representative of public opinion at the time of his election; and as public opinion is subject to great and frequent fluctuations, he must accommodate his policy to them; or the people will speedily give him a successor; or either House of Congress will effectually control his power. It is thus, and in no other sense that the Constitution of the United States is democratic - for the government of our country, instead of a Democracy the most simple, is the most complicated government on the face of the globe. From the immense extent of our territory, the difference of manners, habits, opinions, and above all, the clashing interests of the North, South, East, and West, public opinion formed by the combination of numerous aggregates, becomes itself a problem of compound arithmetic, which nothing but the result of the popular elections can solve.
"It has been my purpose, Fellow-Citizens, in this discourse to show:-
"1. That this Union was formed by a spontaneous movement of the people of thirteen English Colonies; all subjects of the King of Great Britain - bound to him in allegiance, and to the British empire as their country. That the first object of this Union,was united resistance against oppression, and to obtain from the government of their country redress of their wrongs.
"2. That failing in this object, their petitions having been spurned, and the oppressions of which they complained, aggravated beyond endurance, their Delegates in Congress, in their name and by their authority, issued the Declaration of Independence - proclaiming them to the world as one people, absolving them from their ties and oaths of allegiance to their king and country - renouncing that country; declared the UNITED Colonies, Independent States, and announcing that this ONE PEOPLE of thirteen united independent states, by that act, assumed among the powers of the earth, that separate and equal station to which the laws of nature and of nature's God entitled them.
"3. That in justification of themselves for this act of transcendent power, they proclaimed the principles upon which they held all lawful government upon earth to be founded - which principles were, the natural, unalienable, imprescriptible rights of man, specifying among them, life, liberty and the pursuit of happiness - that the institution of government is to secure to men in society the possession of those rights: that the institution, dissolution, and reinstitution of government, belong exclusively to THE PEOPLE under a moral responsibility to the Supreme Ruler of the universe; and that all the just powers of government are derived from the consent of the governed.
"4. That under this proclamation of principles, the dissolution of allegiance to the British king, and the compatriot connection with the people of the British empire, were accomplished; and the one people of the United States of America, became one separate sovereign independent power, assuming an equal station among the nations of the earth.
"5. That this one people did not immediately institute a government for themselves. But instead of it, their delegates in Congress, by authority from their separate state legislatures, without voice or consultation of the people, instituted a mere confederacy.
"6. That this confederacy totally departed from the principles of the Declaration of independence, and substituted instead of the constituent power of the people, an assumed sovereignty of each separate state, as the source of all its authority.
"7. That as a primitive source of power, this separate state sovereignty,was not only a departure from the principles of the Declaration of Independence, but directly contrary to, and utterly incompatible with them.
"8. That the tree was made known by its fruits. That after five years wasted in its preparation, the confederation dragged out a miserable existence of eight years more, and expired like a candle in the socket, having brought the union itself to the verge of dissolution.
"9. That the Constitution of the United States was a return to the principles of the Declaration of independence, and the exclusive constituent power of the people. That it was the work of the ONE PEOPLE of the United States; and that those United States, though doubled in numbers, still constitute as a nation, but ONE PEOPLE.
"10. That this Constitution, making due allowance for the imperfections and errors incident to all human affairs, has under all the vicissitudes and changes of war and peace, been administered upon those same principles, during a career of fifty years.
"11. That its fruits have been, still making allowance for human imperfection, a more perfect union, established justice, domestic tranquility, provision for the common defence, promotion of the general welfare, and the enjoyment of the blessings of liberty by the constituent people, and their posterity to the present day.
"And now the future is all before us, and Providence our guide."
In an earlier paragraph, he had stated:
"But this institution was republican, and even democratic. And here not to be misunderstood, I mean by democratic, a government, the administration of which must always be rendered comfortable to that predominating public opinion . . . and by republican I mean a government reposing, not upon the virtues or the powers of any one man - not upon that honor, which Montesquieu lays down as the fundamental principle of monarchy - far less upon that fear which he pronounces the basis of despotism; but upon that virtue which he, a noble of aristocratic peerage, and the subject of an absolute monarch, boldly proclaims as a fundamental principle of republican government. The Constitution of the United States was republican and democratic - but the experience of all former ages had shown that of all human governments, democracy was the most unstable, fluctuating and short-lived; and it was obvious that if virtue - the virtue of the people, was the foundation of republican government, the stability and duration of the government must depend upon the stability and duration of the virtue by which it is sustained." - Excerpts from John Quincy Adams 1839 "Jubilee" Address

It is amusing to see an author quote the Federalist Papers as meaning precisely the opposite of what they actually do say. Possibly he should read all of them and get back to us.

The Constitution is, to the degree that any such thing is possible in the real world, our social contract, that is, a set of rules by which everyone lives that keeps us from killing one another over politics. A society based around this is threatened when one side or the other decides that it may safely be discarded in preference to some sort of utopian scheme grafted onto the body politic by force. The Constitution is "venerated" not because it is holy scripture but because respect for it is respect for one's fellow citizen: it is the glue that holds our society together. Contrary to the author's case, what is curious is the degree of veneration he confers on the abstraction of Democracy which appears to be entirely uncritical and completely irrespective of actual historical results, many of which were cited in some detail in the Federalist Papers. The government is the way it is for a long list of good reasons, one of which is not to maintain control by a rich white property-owning class. Not that Madison and Hamilton, et al, were ignorant of social class, but that class relationships were very different at the time - Hamilton refers repeatedly to "the yeomanry", for heaven's sake. An industrial proletariat was still a gleam in the unborn Marx's eye.

The Constitution says a good deal about who may run for office, but nearly nothing about who may vote. That was to be left to the states, a detail that appears to have escaped the author. Women could vote in New Jersey, for example, if they owned property. Black freemen could vote in four states. And further, how state governments determined their Senatorial representation was up to them. Popular vote, caucus, Ouija board, spin-the-bottle,the Constitution does not say.

Footnotes and a scholarly wrapper do not disguise the pure lack of scholarship and the appalling historical ignorance that informs the author here. Dark imputations that the whole thing was a plot by the usual villains to keep a boot heel on the necks of the working class are by now cant so stale it crumbles at a touch, and a gross insult to the Founders, who took great pains to explain precisely what they had in mind and why.

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