A Constitution that Disrespects its People

from the book

Toward an American Revolution

by Jerry Fresia

South End Press

Counterevolutionary Tendencies

... the signers of the Declaration of Independence ... were, essentially, merchants or businessmen who wanted independence or freedom from the Crown and the Church to run their businesses any way they wanted.

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The Framers' Fear

English merchant capitalists who arrived in America found that whatever wealth was to be had would come from the hard labor of mining, cutting down forests, planting and harvesting crops, and constructing buildings, roads, and bridges. Investors, therefore, arranged to bring "new hands" to the "new world" to exploit its resources. A vast propaganda campaign was launched to lure the poor of Europe to America. Roughly half the immigrants to colonial America were indentured servants. At the time of the War of Independence, three out of four persons in Pennsylvania, Maryland, and Virginia were or had been indentured servants. Of the 250,000 indentured servants that had arrived by 1770, more than a 100,000 had been either kidnapped or released from their prison sentences. And by this time, roughly 20 percent of the colonial population was in slavery. Jefferson was clear about this when he said that "our ancestors who migrated here were laborers not lawyers."

In the hundred years or so prior to the War of Independence, the rich had gotten richer, and the poor, poorer. For example, in 1687 in Boston, the top 1 percent owned about 25 percent of the wealth. By 1770, the top 1 percent owned 44 percent of the wealth. During this same period, the percentage of adult males who were poor, "perhaps rented a room, or slept in the back of a tavern, owned no property, doubled from 14 percent of the adult males to 29 percent." It was during this time that the rich introduced property qualifications for voting in order to disenfranchise the poor and protect their privileges. In Pennsylvania in 1750, for example, white males had to have fifty pounds of "lawful money" or own fifty acres of land. This meant that only 8 percent of the rural population and 2 percent of the population of Philadelphia could vote. Similar situations existed in the other states. It is important to note the way in which voting qualification requirements can be used to curb political expression. Keep in mind also that voting has never been guaranteed in this country, or made a right ...

Common people were not taking this abuse sitting down. During the last quarter of the seventeenth century, militant confrontations brought down the established governments of Massachusetts, New York, Maryland, Virginia, and North Carolina. In Virginia, in a dispute over land distribution and Indian policy, white frontiersmen, together with slaves and servants forced the governor to flee the burning capital of Jamestown. England was forced to quickly dispatch 1,000 soldiers to Virginia to put down the armed insurrection. By 1760, there had been eighteen rebellions aimed at overthrowing colonial governments, six black rebellions, and forty major riots protesting a variety of unfair conditions. In addition, women were beginning to speak and write about their inequality and would soon begin fighting the "irresponsibility of men" in family matters, and the denigration of the status of women in the public world.

To be sure, common people were involved in and supported the unfolding struggle for independence from Great Britain, even though Britain's colonial policies would, for them, only end in more severe or permanent forms of subordination. But as Philip Foner points out, for common people, independence meant freedom from the oppression of colonial aristocracy as well as freedom from British rule. Stated one slogan, common people must be free from all "Foreign or Domestic Oligarchy." In other words, common people were thinking in terms well beyond "independence." They were thinking in terms of liberation.

We see then, that in the context of the struggle for independence, the specific aspirations of common people put them into conflict with the people we think of as the "Founding Fathers" or Framers. The Sons of Liberty, the Loyal Nine, and the Boston Committee of Correspondence and other such groups which the Framers organized were rooted in the "middling interests and well-to-do merchants" and upper classes. They have been wrongly described as involutionary. The truth is that they took great measures to keep the peace and defuse revolutionary tendencies. As mass resistance to British polices mounted, for example, they urged, "No Mobs or Tumults, let the Persons and Properties of your most inveterate Enemies be safe." Sam Adams agreed. James Otis added, "No possible circumstances, though ever so oppressive, could be supposed sufficient to justify private tumults and disorders... " The Boston Committee of Correspondence actually did its best to contain and control the militancy of activists involved in the Boston Tea Party.

Virtually ignored by most historians is the fact that much of the resistance directed toward Great Britain by common people was an extension of the resistance they felt toward what Dirk Hoerder has described as "high-handed officials and men of wealth whose arrogant conduct and use of economic power was resented." Rioters often damaged coaches and other luxury items of the rich. The homes of the wealthy were sometimes broken into and destroyed. The governor of Massachusetts said in 1765, " The Mob had set down no less than fifteen Houses...the houses of some of the most respectable persons in the Government. It was now become a War of Plunder, of general leveling and taking away the Distinction of Rich and poor."

In the countryside, there was similar class antagonism. In New Jersey and New York, tenant riots led to the carving of Vermont out of New York State. And in North Carolina in 1771 there was the Regulator movement, an armed insurrection which according to Marvin L. Michael Kay was led by "class conscious white farmers...who attempted to democratize local government." What was the general response to this revolutionary moment by the Framers? The response of Governor Morris, a key co-author of the Constitution, was not atypical: "The mob begins to think and to reason. . .I see and I see with fear and trembling, that if the disputes with Britain continue, we shall be under the domination of a riotous mob. It is to the interest of all men therefore, to seek reunion with the parent state."

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The Threat of Democracy

As the legitimacy of the Crown's government began to collapse, the period of control by extra-legal committees and congresses established by the colonists set in. Reflecting the class hostility described above, urban workers and artisans and country farmers often formed strong alliances in order to protect themselves vis-a-vis the merchant class. For example, in 1768 mechanics from Charlestown, Massachusetts were dissatisfied with the initial non-importation agreement written by merchants because it ignored their demand for the prohibition of the importation of slaves who were being hired out as craftspeople; they decided to elect their own representatives. The Boston Chronicle reported that "a number of the leading mechanics of this city assembled under some trees in a field adjacent to the ropewalk in order to select six gentlemen to represent the inhabitants of Charles Town in the ensuing General Assembly." Reading the report in the newspaper, mechanics then went to the town meeting, ignored the legal restrictions on their right to vote, and took charge of town government. One aristocrat complained two years later in 1770, "The Merchants in Boston are now entirely out of the question in all debates at their Town Meeting." A group of merchants added, "At these meetings, the lowest Mechanicks discuss upon the most important points of government with the utmost freedom."

The fears of the Framers were being confirmed. The underclasses were not taking orders. They were speaking for themselves. And they were making it quite clear that their vision of a new society was not the same as that of the Framers. This seems to have been particularly true in Philadelphia. In 1770, the first political meeting specifically restricted to mechanics was held and by 1772 craftsmen had organized their own political organization, the Patriotic Society, to promote their own candidates and agenda. Gary Nash notes that "By mid-1776, laborers, artisans, and small tradesmen, employing extralegal measures when electoral politics failed, were in clear command in Philadelphia. In selecting delegates for the 1776 Pennsylvania Constitution, they urged voters to shun "great and overgrown rich men [who] will be improper to be trusted." They also drew up a bill of rights to be considered which included the assertion that "an enormous proportion of property vested in a few individuals is dangerous to the rights, and destructive of the common happiness, of mankind; and therefore every free state hath a right by its laws to discourage the possession of such "property."

The constitution which the Pennsylvania backwoods farmers came up with was impressive. Kenneth M. Dolbeare, respected for his knowledge of U.S. political institutions, concludes that "the extent of popular control" put forward by these common people "exceeds that of any American government before or since." Although it was not radical by some twentieth century standards (it ignored women, slaves, servants and the poor but did challenge property rights as we now know them), it dramatically reveals the degree to which our present federal Constitution is elitist by the eighteenth century standards of common people. For example, the document began by stating quite explicitly that all men possessed the right of "acquiring, possessing, and protecting property and pursuing and obtaining happiness and safety." ... the attempt to genuinely involve some common people in political decision-making was more honest in the document described below:

A one-house Assembly whose members were elected annually was made the seat of almost all power. The Assembly was required to function in open public sessions, and to keep full records. legislation had to indicate its purpose clearly in the preamble, and except in emergencies had to be published and distributed publicly by the Assembly before it could be considered for enactment- but only by the next session of that body, after another election had been held. The office of governor and its veto power were eliminated in favor of a weak Supreme Executive Council of 12 members, four of whom were elected each year for three-year terms. Judges were elected for seven-year terms, but were made removable for cause by the Assembly. A council of Censors was to be elected every seven years to review the government's performance and recommended a new constitutional convention if changes in its stature or powers were required.

The reaction to this radical departure from the aristocratic liberalism of Great Britain by the Framers and their class allies was predictable. They referred to it as "mobocracy of the most illiterate," a constitution written by "coffee-house demagogues," "political upstarts," and "the unthinking many who believed that men of property...men of experience and knowledge were not to be trusted..." Benjamin Rush, a Framer, called it a "tyranny. The moment we submit to it we become slaves."

The kind of system which the Framers generally had in mind was a particular kind of representative system or republic; it was one in which elites or "better people" decide what is best for "common people." This kind of system, in fact the kind we now live under, is often referred to as classical liberalism. It is the aristocratic or paternalistic representative system associated with John Locke. Locke, it is important to note, was a wealthy man, with investments in the silk trade and slave trade who also received income from loans and mortgages. He invested heavily in the first issue of the stock of the Bank of England and he also advised the colonial governors of the Carolinas, suggesting a government of slave-owners run by forty wealthy land barons. The purpose of Locke's political theory was to create a political system that would support the development of mercantile capitalism in which property owners, not the Crown, held power. Therefore, the concept of "the people" associated with his theories, and the concept of "the people" used by the Framers, as we saw earlier, meant the people who owned productive property-capital, land, factories, and the like. As one member of the British Parliament made clear, by the people "I don't mean the mob...I mean the middling people of England, the manufacturer, the yeoman, the merchant, the country gentleman." It is also important to note, because it helps explain the views of the Framers and our way of politics today, that Locke and his contemporaries also believed that people who labored and who did not own productive property were thought of as "human capital" to be used, but they were not considered intelligent enough to govern themselves.

We see, then, that as early as the 1760s and 1770s the democratic tendencies of common people had alarmed the Framers. Stated a Pennsylvania newspaper in 1772, it was "time the Tradesmen were checked. They take too much upon them. They ought not to intermeddle in State Affairs. They ought to be kept low. They will become too powerful." Therefore, when the First Continental Congress convened in Philadelphia in the fall of 1774, the members of the Congress were selected from the "ablest and wealthiest men in America." John Jay, who would later become the first Chief Justice of the Supreme Court, was chosen as president. He believed that the upper classes "were the better kind of people, by which I mean the people who are orderly and industrious, who are content with their situation and not uneasy in their circumstances." His theory of government was simple: "The people who own the country ought to govern it."

By 1776, according to Jackson Main, 10 percent of the white population-large landholders and merchants-owned nearly half the wealth of the country and held as slaves one-seventh of the country's people. As Howard Zinn correctly points out, the Framers were a "rising class of important people" who "needed to enlist on their side enough Americans to defeat England, without disturbing too much the relations of wealth and power that had developed over 150 years of colonial history." Unlike the situation in Pennsylvania, efforts of common people to build popular governments in most of the other states were defeated. In Massachusetts, for example, the new Constitutions of 1776 to 1780 increased rather than decreased property qualifications for voting. In Maryland, 90 percent of the population was excluded from holding office because of property qualifications.

But the Framers were not out of the woods. In some respects, the war had exacerbated class conflict (the rich could buy their way out of the draft and officers received much more pay than common soldiers); more than once, common soldiers mounted attacks on the headquarters of the Continental Congress in Philadelphia, once forcing the members to flee to Princeton across the river. And in yet still other states (Delaware, Maryland, North Carolina, South Carolina, Georgia, and to a lesser degree, Virginia), the civil strife which was part of the challenge to elite domination persisted throughout the war. Elites did succeed in adding modifications to the new bills of rights in North Carolina, Maryland, New York, Georgia, and Massachusetts that stated that "nothing herein contained shall be construed to exempt preachers of treasonable or seditious discourses from legal trial and punishment." In other words, even after independence had been achieved, the possibility of a revolution remained.

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Freedom in the minds of the Framers was both freedom from others and freedom to accumulate wealth. Given this concept of freedom, community, becomes less like a family and more like a market where relations revolve around exchange. The Framers feared communities that were networks of mutual concern and mutual obligation, for when moral considerations based on traditional and community values come into play, the property owners and the money lenders are restricted to what the community has to say about how resources are used. In the Framers' world, the community becomes a set of exchanges between producers and consumers, owners and workers. People are free individuals (free from traditional, moral, or community values) in a free market, freely pursuing self-interest. The social order is held together, not on the basis of tradition or a sense of mutual responsibility but by impersonal contracts. With the rise of contractual relations, particularly in a society with great inequality, power is shifted away from people who were recognized as being able to interpret traditional, moral, and community rules (often religious leaders, elders, healers) toward those who owned great amounts of property and money.

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The role of the state in this setting is the key to making the market system work. It's function is to make sure the relations of exchange keep on going, to help expand or create markets (especially with regard to capital and labor), to subsidize or protect key industries, to protect the property of those who have it, to guarantee contracts, to insure that foreign or critical ideologies don't take hold, and to use force, if necessary, in each of these undertakings.

Proponents of the new market political economy argued that it was natural, self-evident, and divinely inspired. But like all systems, it was and is not neutral. It carries with it historically specific biases which have been the source of protest to this day. In the world of individualistic competition, each person confronts every other person as a competitor and potential enemy. The individual freedom to become rich and separated from community is valued more highly than the rewards of family-like bonds found in a cooperative community. Moral standards tend to give way to standards of efficiency and productivity. Nature loses its spiritual significance and becomes a resource. Compassion and a genuine concern for others is too frequency shuffled into and contained within the private sphere, in families or love relations, or in the church. Mutual responsibility and the obligations of family and community-those troublesome, ethical, sticky, personal, emotional realms of human experience-are split off and given to women, generally, to worry about. Egoism, ambition, and upward mobility are encouraged. The stratification of society is viewed as natural, not a product of human actions.

The Framers, by virtue of the Constitution, would finally place the power, legitimacy, and force of the state squarely behind these new market values and the privilege of private elites.

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The Constitution: Resurrection of an Imperial System

... the principle found in the Declaration of Independence that revolution is a right of people ("That whenever any Form of Government becomes destructive of these ends [life, liberty, and the pursuit of happiness] it is the Right of the People to alter or to abolish it.) has been eliminated altogether in the Constitution... The Constitution ... not only eliminates any encouragement to revolt, it makes revolution virtually impossible. With the state militia under federal jurisdiction, with the creation of a national army, the authorization to suspend habeas corpus (or lock people up without giving a reason), and put down domestic insurrections, the risks entailed in challenging political I authority are greatly enlarged...

...the Framers entertained no safeguards against private power or what today is called corporate power. It is ironic also that the Framers would exaggerate to rather hysterical proportions the threat to their privileges posed by the legislative demands put forward by small farmers and the political participation of common people in general. Surely had any of them been enslaved or made to endure the discipline and despotism of the nineteenth-century factories, or the everyday abuse many citizens today experience on the job, they would have found their own justification of withdrawing the right to revolt, namely that the citizen is protected from public power, to be wholly irrelevant. In the words of one anti-federalist, because the national government would have its own army and would be able to command the state militia, "the last Resource of a free People is taken away."

... around issues that separated rich from poor, white from black, and men from women, there was considerable agreement. There was no need for compromise when it came to deciding that the suffrage would be restricted to white men with property. There was no need for compromise regarding the unusual authority given to the national government to tax directly, to guarantee contracts, to restore public credit, to regulate commerce, to promote the general welfare (market expansion), to raise a national army, to suspend habeas corpus during periods of rebellion, to forcibly put down domestic insurrections, or to use force to compel states to comply with congressional edicts. Indeed, there was a shared understanding that the use of force was a necessary feature of the kind of government they had in mind. Stated George Washington, "We have probably had too good an opinion of human nature in forming our Confederation. Experience has taught us, that men will not adopt and carry into execution measures that are best calculated for their own good, without the intervention of a coercive power." The idea that there was a need for a federal bill of rights was rejected, unanimously.

And that is the rub. There was no debate over whether or not it was the right of the "better, " more "virtuous" people to decide what our interests and needs are. There was no debate over the fugitive slave law (Article IV, Section 2). There was no debate over the perceived need to check the democratic tendencies of common people. The reason for the Constitution was to empower people of property over common people. Indeed, our definition of self-government and freedom have become linked, if not equated, to the interests of the corporation.

... Finally property owners had secured a document, the Constitution, that would permit them to push ahead with their vision of vast state sponsored markets, expanded state sponsored trade, state assisted development of "cheap" labor and capital, and of state assisted accumulation of material abundance. Property owners were now free from King George, the Catholic Church, from rebellious small farmers, from slaves, people without property with "leveling" tendencies, and debtors who would violate their contracts; in short, property owners were now free from personal relations and the moral constraints that flow from them. Property owners were now free to pursue a fully rationalized, calculating, self-interested quest for empire which, of course, from their point of view was the simple unfettered exercise of self-government...

Toward an American Revolution