The Constitution Is a Plutocratic Document

Robert Ovetz

There’s no reason to venerate the framers of the US Constitution. The document they created was explicitly designed to check the democratic will of ordinary people and protect the plutocratic interests of the propertied elite.

The US Constitution was designed to protect capitalist social relations from democratic challenge. (Getty Images)

Interview by
Chris Maisano

Representative Marjorie Taylor Greene, the notorious far-right congressperson from Georgia, recently made headlines for her call for a “national divorce” between red and blue states. This did not stop her, of course, from showing up in lower Manhattan to protest the arraignment of former president Donald Trump and to garner more media coverage for herself.

Whether the likes of Taylor Greene actually believe what they say is somewhat beside the point. Such calls for a national breakup are a recurrent feature of US politics — we fought one of history’s bloodiest civil wars in the 1860s — and remind us of the uneasy compromises that underpinned the drafting of the Constitution in 1787.

US political culture venerates the Constitution for its supposed genius in setting up a system of government that could last forever, if only we could abide by its timeless wisdom. The conflict and dysfunction that plagues our political system, in this view, stems from a heedless disregard of the framers’ intentions, not the system itself.

This view still predominates, but there seems to be a growing sense that a constitutional framework established in the late eighteenth century may not be up to dealing with the challenges of the twenty-first. New York Times columnist Jamelle Bouie, for example, has been writing a running commentary on our “constitutional stagnation” and what might be done to break out of it.

Robert Ovetz is a senior lecturer in political science at San José State University. His new book, We the Elites: Why the US Constitution Serves the Few, provides a detailed but accessible critique of the Constitution as a system designed to protect capitalist social relations from democratic challenge. Our constitutional system, Ovetz argues, cannot address the many crises we face because it was designed precisely to frustrate and contain collective action, not facilitate it.

He spoke to Jacobin’s Chris Maisano about the book, whether meaningful change can be achieved through the current political system, and potential alternatives rooted in decentralized, directly democratic political institutions.

Chris Maisano

There seems to be renewed interest in constitutional questions on the Left today. Why do you think that is?

Robert Ovetz

We’re seeing a resurgence of class struggle in the United States. I think there’s some dissatisfaction following the past two elections and the failure to get important legislation passed. Many of the people who have been involved with electing democratic socialists to Congress and trying to get Bernie Sanders the Democratic presidential nomination are turning toward labor organizing because they see things are blocked in terms of being able to elect the right person and having that result in meaningful changes in policy.

Also, the long-running crises we face continue to go unaddressed — gun violence, climate catastrophe, homelessness, explosion of housing costs, low wages, anti-union repression. As a result, people are looking for a more systematic explanation and analysis for why we can’t get things done. We’re starting to look at the design and organization of the political process itself.

Chris Maisano

Walk us through some of the main themes and arguments of your book.

Robert Ovetz

We can’t understand our undemocratic constitution without understanding our capitalist constitution. Many who write about the Constitution don’t take its political economy into account. As someone who teaches political science, we often focus on the rules, procedures, and processes.

But what I argue in the book is that the framers (who are also called the “Founders” or “Founding Fathers,” a term I greatly dislike) designed a system that protects the interest of property. There are what I call “minority checks” throughout the Constitution that constrain political democracy and prevent economic democracy. The “minority” they sought to protect are not who we think of today as ethnic, racial, and gender minorities, but the minority of the propertied elite.

Chris Maisano

The Constitution replaced the Articles of Confederation, the country’s first system of government after the end of the Revolutionary War. Historians call the 1780s the “Critical Period” because there was a lot of social, economic, and political conflict that put the future of the new country in question. Why did the framers feel the need to come up with a new system to replace the Articles?

Robert Ovetz

The Critical Period was a time when economic elites were kicked back on their heels in many states. They were losing some significant battles in what I call the three insurrections.

First, there were slave rebellions, which escalated during the revolution. Remember that most of the slaves that ran away joined up with the loyalists and the British, and the rebellions continued when the fighting stopped. Next, there was organized Native resistance to white settler colonialism. Out in the West, Native peoples were getting organized into a confederation to resist the theft of land and genocidal attacks.

Finally, there were uprisings of small white subsistence farmers, who for the most part were outside the cash economy. They grew what they ate. They were in conflict with large commercial farmers, merchants, bankers, and traders. And in some states, they were a powerful force to be reckoned with.

They organized their own political parties, and if they could meet the property requirements to serve in office, they or their allies would get elected. They were able to pass some significant forms of economic democracy in their state legislatures under the Articles of Confederation — things like debt relief and land banks that provided cheap loans to small farmers using their land as collateral. They issued paper money and allowed it to be used to pay private and public debts. Some states taxed imported goods from other states to generate revenue and lower taxes on the local population.

The framers were extremely concerned about these three insurrections. They referred to the economic majority as the “meaner sort of people,” or my favorite phrase, the “people out of doors.” They thought the people who were literally outside working with their hands and getting them dirty should not be inside the meeting rooms with their hands on the levers of power.

This was a short period after a revolutionary period of upheaval when ordinary people shared power with elites. Because some states were unicameral with short terms, few had an executive veto, and none had judicial review, it was easier to pass new laws quickly. State laws were the final word because Congress didn’t have “supremacy” power or judicial review. While they still had property requirements to run for and serve in office, these democratic elements are mostly missing from our current Constitution. This is not to idealize the states but to show how the Constitution was a reactionary outcome to the revolution.

Chris Maisano

People on the Left have usually seen the state and local governments as bastions of reactionary power and sought federal government intervention against them. The Constitution created the federal government that has often played a progressive role in US history, in relation to the states in particular.

Robert Ovetz

During the 1950 to 1960s, the center left looked to the courts and the federal government. But conservatives also used federal power to intervene against liberal or progressive states to shoot down what they were trying to do. Each side uses Article VI federal “supremacy” power when they have it to intervene and suppress any attempts at innovation by the other side.

We should forget about the partisan use of supremacy power and think about why the federal government has it at all. The center left sees supremacy power as something we can use to push our policy demands forward. But the reality is that the framers inserted the supremacy power into the Constitution because they wanted to give a minority check to propertied interests to block innovations at the state level that threatened property.

Instead of deciding which level of government is “best,” we need to look at why the federal government gets the final say in our system. This was intentional, because the framers wanted to have a brake on democracy from below to prevent any movement that today we would call socialism.

Chris Maisano

You briefly mentioned the national debt earlier, but it was such an important issue that we should talk about it in more depth. The country had huge debts coming out of the Revolutionary War and was having trouble paying them off. Why did the framers feel they needed an entirely new federal government to address the national debt?

Robert Ovetz

The revolution was very costly. They borrowed, by Alexander Hamilton’s estimates, several hundred million dollars — and that’s the valuation from the 1780s, not adjusted dollars.

The states and Congress issued multiple types of IOUs and paper money. They also borrowed money from the Spanish, the Dutch, and the French. The Confederation Congress actually defaulted on a loan by the French shortly after the revolution ended. Because there wasn’t enough gold and silver in circulation, paper money was needed to get economic activity going. Furthermore, economic elites were on a capital strike because they refused to borrow or invest, and foreign loans stopped. This was a period of deep fiscal and financial crisis.

An early 20th-century portrayal of Daniel Shays’s forces fleeing from federal troops after an attempt to lay siege to the Springfield Arsenal in Amherst, Massachusetts. (Wikimedia Commons)

Under the Articles of Confederation, Congress didn’t have the power to tax. So they would tell the states, this is how much you have to contribute to the national treasury — what was then called “requisitions.” They didn’t even have a good way of figuring out what each state’s share should be. Each of the states pretty much paid its share during the revolution, but when the fighting stopped, most stopped paying in full or at all. As a result, Congress couldn’t pay its debt and went into default with France. Only a few of the states were able to pay off all or some of the debts by using internal tariffs called “imposts.”

In some states, like Massachusetts, the conservatives tried to impose numerous taxes on the economic majority to generate the revenue to repay creditors. That triggered the famous Shays’s Rebellion in 1786, by small white subsistence farmers who were Revolutionary War veterans. When creditors tried to foreclose on their farms and meager possessions, they put on their old uniforms, took up arms, and marched on local courthouses in the western part of the state to shut them down.

The taxes were very unpopular because many farmers were mad they were never paid for fighting in the revolution — they were “paid” with those IOUs. Desperate for cash, many small creditors sold their IOUs to creditors, and soon most of those IOUs ended up in the hands of a very small number of rich speculators. One of the most famous speculators was Abigail Adams, the wife of soon-to-be-vice-president John Adams. Although they bought the IOUs for pennies on the dollar, the speculators demanded them to be paid at their face value from when they were originally issued, not at what they paid or their depreciated value.

There was a lot of political opposition to raising taxes to enrich the speculators. This was widely seen in class terms as an attempt to redistribute wealth upward that would result in many losing their land and being forced into wage work — what Karl Marx later called “primitive accumulation.” Also, the Congress was unable to pay not only rank-and-file soldiers but also officers, which almost resulted in an attempted coup by military officers when the fighting stopped.

This all leads to the Constitutional Convention, in which the issue that’s discussed over and over is how to address the demands of the creditors. This is achieved in the Constitution by establishing a stable government that can set up, manage, and protect the capitalist economy. In Article I, the regulation of interstate and foreign commerce and contracts and the establishment of bankruptcy laws are moved from state to federal authority. Now Congress exclusively has that power. Authority to repay debts and the power to issue money is taken from the states and given to Congress, preventing the states from printing or coining their own money anymore. Article VI says that all debts are the responsibility of the new federal government and must be paid by it.

Once Hamilton became the first secretary of the treasury, the national debt became the means of creating what he called the public credit system, which allowed the federal government to roll over outstanding debts. Hamilton received approval from Congress to consolidate the debt and roll it over into new interest-bearing bonds at very generous rates. This transformed the economic elites of the separate states with various competing interests into a single ruling class with shared economic interests.

The Act of the Maryland legislature to ratify the Articles of Confederation, February 2, 1781. (Wikimedia Commons)

Hamilton also got Congress to authorize the creation of the First Bank of the United States, a semiprivate bank that held all the federal revenue and debts of the federal government. The federal government would now collect taxes and use that revenue to pay the creditors — the same way it works today. From that revenue they also vastly expanded the military and ensured the consolidation of a stable national government.

And as Hamilton argued, this public credit system — in actuality, a publicly funded private financial system — was a prerequisite for creating a new empire. The first targets of the newly expanded, tax-funded military were the native peoples arming themselves in the West against genocidal settler colonialism and insurrectionary white subsistence farmers resisting primitive accumulation. To understand why the United States became the dominant economic and military power in the world, you have to understand how the Constitution provided the tools by which such power was created, and Hamilton immediately put them into action.

Chris Maisano

Every US movement for social change after the founding period has run into the question of what to do about the Constitution. There were huge debates, for example, in the abolitionist movement over whether the Constitution was a proslavery or antislavery document. People like William Lloyd Garrison denounced it as a “covenant with death,” but others like Charles Sumner and Frederick Douglass argued that it provided resources to restrict the growth of slavery and ultimately end it.

Robert Ovetz

The abolitionist debate is essentially repeated in every powerful movement of every generation: does the Constitution allow for systemic change, or tinkering around the edges with reforms that do not threaten the structure of political power and the capitalist economy? If the Constitution does not allow us to make the changes we need, should we try to bypass it and go a different direction?

Here I fall on Garrison’s side. He made the excellent point that slavery was well protected throughout the Constitution — it’s mentioned about twenty different times without actually using the word “slave” or “slavery” anywhere. They use all kinds of euphemisms, like “Person held to Service or Labour” in Article IV and “other persons” in other places.

Remember that we got the Thirteenth Amendment abolishing slavery in 1865, at the end of the Civil War, when the Confederate states were outside the union. The film Lincoln gets a lot of things wrong, but it shows how hard it was to get the amendment through Congress even when most of the slave states weren’t in Congress. Abolition ultimately required this rupture that we call the Civil War, in which hundreds of thousands of people were killed, many more maimed for life, and half of the country burned to the ground to overcome the impediments the Constitution put in the way of abolishing slavery.

Fast forward to today: when we attempt to change policy at the state level it’s overturned at the federal level because the courts use the supremacy clause. In the last two chapters of the book, I ask what we can do about the Constitution. We essentially have three choices. Two of the options are in the Constitution itself. Article V establishes the process for amending the Constitution and for calling a constitutional convention. But those are really long shots because of the high supermajority thresholds for all four methods. We’ve had over ten thousand officially introduced constitutional amendments in our country’s history, but only 27 of them were successful — about one-quarter of one percent. The extremely high threshold in the Article V amendment process is an effective minority check that has rarely been overcome.

The same goes for calling a constitutional convention. Right now, there’s an effort to call a constitutional convention backed by the last active living Koch brother. That’s very dangerous for the Left. If they succeed, we are likely to be beaten badly. They are outorganizing and certainly outspending us. A constitutional convention is not going to make any changes in our favor right now.

Instead, we need to use the same strategy the framers did when they bypassed the Articles of Confederation. We need to design a new system of direct democratic self-governance. Instead of creating a new constitutional system, I argue, we can design a decentralized confederation of local and regional worker-controlled economic democracies. It would involve people organizing themselves to take over the economy in a general strike and transform it through direct democracy to serve the interest and the needs of the many rather than the interest of property.

Chris Maisano

I can imagine a reader agreeing with your critique of the Constitution while also being very skeptical of the alternative strategy you just proposed.

Robert Ovetz

It’s occasionally possible to make change under the Constitution if it doesn’t threaten the supremacy of property. We have to be careful about how our demands get diffused, diluted, and translated as they are transformed into regulations. When laws are passed, we tend to forget about them and move on to the next issue. But in the meantime, they get challenged in the courts and the regulatory bodies create new administrative law. And over time, those laws get transformed and turned into something very different.

Before we advocate for reform, we need to address the problem of why so many people become dissatisfied with the political process. Every election cycle we become hopeful and energetic. We get involved and we elect people to office who have the intention of doing many great things. And even if we do get good things done, they ultimately don’t turn out to be what we expected them to be.

The Constitution was designed with all these pitfalls and roadblocks that make it very difficult to get the changes we need unless we give the economic elites what they want so they no longer block it. This is how the economic minority is empowered by the Constitution to impede political democracy and prevent economic democracy.

I live in California, where we’ve been hit by several atmospheric rivers in the last few months. We don’t have time to negotiate with the fossil fuel companies, because they have blocked everything that has been proposed or gutted it when it gets passed. We have to understand the Constitution as the main impediment to making urgently needed systemic changes. We are long past due for a new political strategy that bypasses the constitutional system altogether if we are going to survive.