The following essay first appeared in Bertell Ollman’s 1990 coedited book, The United States Constitution 200 Years of Anti-Federalist, Abolitionist, Feminist, Muckraking, Progressive, and Especially Socialist Criticism.
When Moses invented ten fundamental laws for the Jewish people, he had God write them down on stone tablets. Lycurgus, too, represented the constitution he drew up for ancient Sparta as a divine gift.
According to Plato, whose book The Republic offers another version of the same practice, attributing the origins of a constitution to godly intervention is the most effective way of securing the kind of support needed for it to work. Otherwise, some people are likely to remain skeptical, others passive, and still others critical of whatever biases they perceive in these basic laws, and hence less inclined to follow their mandates.
As learned men, the framers of the American Constitution were well aware of the advantages to be gained by enveloping their achievement in religious mystery, but most of the people for whom they labored were religious dissenters who favored a sharp separation between church and state; and since most of the framers were deists and atheists themselves, this particular tactic could not be used.
So they did the next best thing, which was to keep the whole process of their work on the Constitution a closely guarded secret.
Most Americans know that the framers met for three months in closed session, but this is generally forgiven on the grounds that the then-Congress of the United States had not commissioned them to write a new constitution, and neither revolutionaries nor counter-revolutionaries can do all their work in the open.
What few modern-day Americans realize, however, is that the framers did their best to ensure that we would never know the details of their deliberations. All the participants in the convention were sworn to life-long secrecy, and when the debates were over, those who had taken notes were asked to hand them in to George Washington, whose final task as chairman of the convention was to get rid of the evidence. American’s first president, it appears, was also its first shredder.
Fortunately, not all the participants kept their vows of silence or handed in all their notes. But it wasn’t until 1840, a half century after the Constitution was put into effect, with the posthumous surfacing of James Madison’s extensive notes, that the American people could finally read what had happened in those three crucial months in Philadelphia.
What was revealed was neither divine nor diabolical, but simply human, an all-too-human exercise in politics. Merchants, bankers, shipowners, planters, slave traders and slaveowners, land speculators, and lawyers, who made their money working for these groups, voiced their interests and fears in clear, uncluttered language; and, after settling a few, relatively minor disagreements, they drew up plans for a form of government they believed would serve these interests most effectively.
But the fifty years of silence had the desired myth-building effect. The human actors were transformed into “Founding Fathers.” Their political savvy and common sense were now seen as all-surpassing wisdom, and their concern for their own class of property owners (and, to a lesser extent, sections of the country and occupational groups) had been elevated to universal altruism (in the liberal version) or self-sacrificing patriotism (in the preferred conservative view).
Nor have we been completely spared the aura of religious mystery so favored by Plato. With the passage of years and the growing religiosity of our citizenry, it has become almost commonplace to hear that the framers were also divinely inspired.
The year 1987 was the bicentennial of the writing of the Constitution, and wherever one turned in the media, in schools and professional associations, in talks by politicians and other public figures, the same myths appeared. The Commission on the Bicentennial of the US Constitution, which was set up under Chief Justice William Burger to coordinate most of these efforts, demonstrated its own commitment to historical truth by initially taking as its slogan “200 Years of Peace, Prosperity, and Liberty.”
What is in danger of being lost among all the patriotic non-sequiturs is the underside of criticism and protest that had accompanied the Constitution from its very inception. Not everyone has been satisfied to treat this product of men as if it came from God.
Even before the Constitution was officially adopted, many people, known to history as Anti-Federalists, questioned whether what was good for the property-owning factions that were so well represented in Philadelphia would be as good for those who owned little or nothing. Then as subsequently, the main questions raised dealt with the limitations on suffrage, the inadequate defense of individual rights and freedoms, the acceptance and even strengthening of the institution of slavery, and the many other benefits given to men of property.
Taken at face value, the Constitution is an attempt to fix the relations between state and federal governments, and between the three branches — legislative, executive, and judiciary — of the latter. And most accounts of this document have concentrated on the mechanical arrangements that make this balancing act possible.
In the process, the Constitution’s basic assumptions and particularly its social and economic purposes have been grossly neglected. It is a little like learning in some detail how a car works before even knowing what kind of machine it is, what it is supposed to do, and why it was constructed in just this way.
Learning the functioning of any system, whether mechanical or institutional, is not without value in determining its meaning and use, but we would do better to approach their symbiosis from the other side, to examine who needed what and how the specific structures created responded to these needs. What is really at stake in any political dispute, the real-life questions involved, and why different people take the positions they do, can never be adequately understood by focusing solely or even mainly on the legalistic forms in which the issues are presented and fought out.
In examining any political phenomena, it is always wise to ask, “Who benefits?” As regards the American constitutional system, the answer was given clearly, if somewhat crudely, by Senator Boies Penrose, a late nineteenth-century Republican from Pennsylvania, who told a business audience: “I believe in a division of labor. You send us to Congress; we pass the laws under which you make money and out of your profits you further contribute to our campaign funds to send us back again to pass more laws to enable you to make more money.”
When, a few years later, Charles Beard suggested that the same kind of considerations may have played a role in the writing of the Constitution, he unleashed a political storm against his book that had few if any parallels in our history.
Then-President Taft publicly denounced this unseemly muckraking as besmirching the reputations of our Founding Fathers. Not particularly noted for his indifference to economic gain when he became president, Warren Harding, at that time a newspaper publisher, attacked Beard’s “filthy lies and rotten perversions” in an article entitled, “Scavengers, Hyena-Like, Desecrate the Graves of the Dead Patriots We Revere.” And even as a growing number of professional historians came to accept Beard’s interpretation, the city of Seattle banned his book.
Obviously, Beard had touched a tender nerve, but it is also obvious that economic motivations — as Beard himself recognized — are only part of the explanation for political phenomena. Other factors influence people’s behavior, and some people act often and even primarily out of other kinds of motives. The problem is how to credit these necessary qualifications without unduly compromising the original insight (not really that original, since political theory has known about the importance of economic motivation from Plato on).
In an attempt to redirect attention away from the mechanical and socially uninformative details of checks and balances, criticisms of the Constitution have proceeded on three distinct though closely related levels.
The first concentrates on the people who wrote the document, on who they were and what they thought, feared, and wanted.
The second deals with the classes and subclasses to which they belonged and which they more or less consciously represented, with the objective interests of these classes and what was required to satisfy them. Here what is decisive are the assumptions and ways of thinking that correspond to membership in a particular class, or the part of human understanding that comes from what we take for granted, not so much because of who we are as because of where we fit in society.
Hence, for example, one might favor strong laws to protect private property not because one wants to remain wealthy (though I suspect most wealthy people do), but because one has been socialized as a member of a property-owning class to take this requirement and its connection to life, liberty, and the pursuit of happiness for granted.
The third level introduces the nature of the capitalist mode of production, and tries to bring out how the Constitution, together with other political institutions, function as both cause and effect within the life process of a developing capitalist society.
From the start, most criticisms have been situated on the first and second of these levels. However, given the necessary relations between levels, a fully adequate analysis of what our Constitution means would have to devote more attention to the larger context of capitalism, in which it was produced and which it helps in no small measure to reproduce.
To be sure, capitalism doesn’t exist apart from the social economic classes whose struggle over opposing interests constitutes its central drama. Nor can these classes be completely understood apart from the lives of the real individuals who compose them.
But the reverse is equally true: the actions of the individual framers makes little sense — opening the way for various superficial interpretations — if viewed apart from the class interests which they sought to further; just as the nature of these classes, their specific interests, and the conditions and means available to satisfy them require a contextualization that could only come from an account of the enveloping capitalist system.
It was early commercial capitalism in its free worker and slave variants that gave rise to the main property-owning classes represented at Philadelphia; that established the conditions for their alliance and made this alliance politically dominant; that led to the most pressing problems from which these classes suffered; and finally, that provided both the possibilities and limits for the resolution of these problems.
Unfortunately, the book that treats the Constitution as a political extension of the capitalist mode of production, as an organic function of this historically developing whole, while not losing sight of how it is also a product of a particular class alliance and of the real individuals who gathered in Philadelphia, remains to be written.
What still needs to be stressed — chiefly because even most critics ignore it — is that on all three levels of analysis and throughout the entire two hundred years of its history, the Constitution has been a way of understanding reality as much as it has served to shape it. And it has succeeded in ordering society in part through how it has made people think about it, just as these practical achievements have secured widespread acceptance for the intellectual modes that they embody.
In sum, an important part of the Constitution’s work is ideological. As ideology, the Constitution provides us with a kind of bourgeois fairy tale in which claims to equal rights and responsibilities are substituted for the harsh realities of class domination. Through the Constitution, the struggle over the legitimacy of any social act or relationship is removed from the plane of morality to that of law. Justice is no longer what is fair but what is legal, and politics itself is transformed into the technical wrangling of lawyers and judges.
The Constitution organizes consent not least by its manner of organizing dissent. The fact that two-thirds of the world’s lawyers practice in the United States is not, as they say, a coincidence. The main ideologists in the American system are not teachers, preachers, or media people, but lawyers and judges.
Unlike political theory, the Constitution not only offers us a picture of reality but through the state’s monopoly on violence, it forces citizens to act, or at least to speak, “as if.” Acting as if the rule of law, equality of opportunity, freedom of the individual, and the neutrality of the state, all of which are inscribed in the Constitution, are more than formally true inhibits people’s ability to recognize that they are all practically false, that the society set up with the help of the Constitution simply does not operate in these ways.
It is not a matter of reality failing to live up to a set of commendable ideals but of these ideals serving to help mask this reality through misrepresenting what is legal for what is actual, what is permissible in law for what is possible in society.
When does an ideal become a barrier to the realization of what it supposedly promotes? When people are encouraged to treat the ideal as a description, however imperfect, of the real, as in the claim that ours is a society ruled by law, where whatever actually exists that goes counter to this claim is relegated to the role of a passing qualification.
Viewed in this way, the dynamics of who is doing what to whom and why, together with the structural reforms needed to change things, can never be understood.
Finally, all such criticisms should not blind us to the many positive and progressive qualities of the Constitution, both for the time in which it was written and for the present day.
By 1787 the revolutionary war had been over for four years, but it was still not clear that the English ruling class had accepted its result. What could be done to ensure the country’s political independence? And how best to deal with the economic problems resulting from the disruption of trade and investment patterns that accompanied this independence?
These problems were not very different from those confronting ex-colonial counties that have gained their independence in our century; and in every case setting up a strong central government has been vital for their solution.
Beyond this, and especially for the late eighteenth century, the Constitution deserves high marks for its attempt to limit the arbitrary power of government (providing some protection for its own critics) and for such measures as the elimination of all religious qualifications for voting and holding office.
With the passing years the Constitution has also proved to be admirably suited for a society in transition from early to late capitalism, that is, from one dominated by merchant and financial capitalists and slaveowners tied to capital through their production for a world market, to one dominated by industrial and financial capitalists, both domestic and multinational.
By facilitating the accumulation of wealth on a scale never before dreamed of in world history, the Constitution can also be viewed as helping make possible a transition to socialism at a very high level of economic development.
Few of these positive qualities come without their regressive aspects or side effects, but that should not keep us from recognizing their existence or importance, or making use of them when we can. Though not the same virtues that are trumpeted in most celebrations, they should be enough to show that our criticisms do not lead us to regret that the Constitution was even written.
One studies the past neither to annul it nor to improve it, but to build upon it where that is possible. In learning how the Constitution works, for whom it works better and for whom it works worse, and how and why it acquired its character, we discover not only what the Constitution has meant but what it may yet mean in our future.
Can the Constitution serve a people bent on a democratic socialist transformation of capitalist society? It has done everything a document could possible do to forestall such an eventuality; and as the central institutional prop of our capitalist society, it continues to act in his way.
And yet, despite its lopsided and deceptive form and the worst elitist intentions of its framers, the changes it has undergone in the past two hundred years suggest that this possibility cannot be ruled out.
Nothing, of course, came easy. Every amendment to the Constitution, just like most new interpretations by the Supreme Court (in some ways more important than new amendments), and each change of emphasis in its administration and enforcement have come about as a result of popular struggle. Neither blacks, nor women, nor unpropertied males, for example, were simply handed the right to vote.
It might be said that the expansion of democracy only occurred after it became clear that the influence of party machines, public education, newspapers, churches, patriotism, and especially the growth of the economic pie through capitalist development and American imperialistic adventures “abroad” (including Indian and Mexican lands west of the Mississippi) would suffice to ensure that the newly enfranchised publics would not use their power for subversive ends.
But the most fundamental contradiction in the entire Constitution cannot be dismissed so easily. This is the contradiction between political democracy and economic servitude.
The framers did everything they could — consistent with winning acceptance for the document — to avoid placing the loaded gun of popular sovereignty in the hands of the people. They had no doubt as to what would happen to the grossly unequal distribution of property in our country should this even occur.
Well, it has occurred, the mass of America’s citizens has made little use of political democracy to obtain economic democracy. For some, therefore, the trial is over, and the verdict is in. For us, the jury, is still out.
Capitalism in extremis had many catastrophes in store for all of us. And with the stakes so high, history can afford to take its time.
Meanwhile, more informed criticism of the one-sided, deceptive, and biased rules of the game by which we are all forced to play can hurry history along just that little bit, and in the process encourage thinking on the role — if any — of the Constitution in the transition to a socialist society.