Abolish the Constitution

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Japanese Americans were interned for years at the whim of a wartime president, with no resistance from the soldiers, police and bureaucrats sworn to uphold the Constitution and its guarantee of due process and equal protection under law.

There is a long and noble tradition of progressives who cite passages from the founding documents in their calls for truly universal rights.

Martin Luther King, Jr. is perhaps the most prominent of these voices.  His speeches built upon the loftiest promises of the Declaration of Independence and the United States Constitution and then added his own.  Abraham Lincoln’s funereal address at the killing grounds of Gettysburg has similarly ascended into canon, and is trotted out by every debate amateur, every screenwriter, and every cretin who seeks public office who needs to clothe his character in the language of freedom.  Other attempts to add truly radical ideas to the American lexicon have fallen short.  Franklin Roosevelt’s Four Freedoms, a relatively tepid acknowledgement of human rights for its time, failed to enter the American consciousness, even as his more war-oriented rhetoric burrowed itself into the brains of the ‘Greatest’ generation.  It seems that Freedom from Want is not as catchy as a Day Which Will Live in Infamy.

It’s no secret that the right wing of this country consider the Constitution their own.  The original document and the first two amendments or so, plus the tenth, serve as a totem through which those most concerned with protecting their property achieve their permanent blockade of collective action. It ensures the powerlessness of democratic assemblies to regulate and redistribute the gains of the economy. But the parties of the center and left also have a similar reverence for these texts, despite the fact that many of their key achievements have been thwarted by its interpretations for centuries.

It’s moving to see the father of a fallen Muslim soldier hold up a miniature copy of the Constitution to berate Donald Trump for his bigotry.  And yet today the newly elected President will sign an order banning the immigration of Muslims to the United States, and institute a regime of suspicion and horror against a religious minority who are unjustly tied to the actions of radical (right wing) death squads a half a world away.  The Constitution will not stop him.  It seems that despite the flowery Enlightenment-era language of these documents which guarantee universal rights and tolerance, the Constitution and the people who interpret it are powerless to enforce those provisions in the real world.   Either that, or they were never meant to.

Why does this document hold a place of esteem for progressive people, despite its history as a tool for oppression and governmental gridlock?

Why does every high-minded liberal speaker, from Barack Obama to Aaron Sorkin to Khizr Khan, revere this set of platitudes, when the very men who wrote them owned humans as property, raped them, stole their children, committed and abetted genocide against natives, and denied personhood to their mothers, wives and daughters?

The answer is complex, but there are a couple of primary features to American reverence for its founding documents that account for its popularity, especially among the white and well-connected, namely its advancement of white supremacy, its protection of private property, and the endless proliferation of Founder-worship and nationalist propaganda.

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Tyrants, radicals and centrists alike have flouted the Constitution, but none to greater effect on behalf of human rights than Abraham Lincoln.

The Supreme Court decision in Dred Scott v. Sanford held that as a descendant of slaves, Dred Scott had no federal standing as a person under the Constitution and no right to sue for his own freedom, despite that the law of the state in which he filed the suit was a free state which banned slavery, and despite the assertions of the Founders that:

“No person shall be […] deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” – 5th Amendment to the United States Constitution

Dred Scott was not considered a person under US law and was sent back into bondage.  The state government which had originally passed a law to protect him did not stop this injustice.  It was considered common wisdom that despite Jefferson’s claim that ‘all men are created equal’ that he could not have meant ‘the Negro,’ for he himself had owned Negroes, and his intent could not have been to indict himself as a tyrant and a monster.  And it wasn’t.  It was never his intention to create a country where, slowly but surely, the definition of personhood spread from white to black, from man to woman, from colonist to colonized.

Jefferson’s intention was to create an oligarchy of agrarian homesteaders, a vast colonial empire of plantations unfettered by the nascent modernity and religious feudalism and ethnolinguistic baggage of the European powers.

Enlightenment, to the Founders, was not a force for universal introspection and self improvement.  It was an assertion of superiority.  And their documents enshrine that understanding.

It was not until the Confederacy attempted to seize federal military assets that the government finally took up arms against the rebellious slaveholders of the Southern States, and not until it provided a wartime advantage did President Abraham Lincoln declare, against the commonly accepted interpretation of the US Constitution, that slaves were no longer property.

Even after the Emancipation Proclamation, it was generally understood that the 5th Amendment, while never construed to grant personhood or due process to slaves, did however guarantee the compensation of former slaveowners for the seizure of their ‘property.’  A primary obstacle to the abolitionist cause was that most Americans considered this narrow portion of the Constitution sacrosanct. Who would pony up the millions upon millions required to make these slaveholders whole?  It was too expensive. It was impossible.

Private property was the material basis of freedom. Slavery would have to work itself out.

Following the end of the Civil War, Lincoln took advantage of the south’s absence from Congress to pass the 13th and 14th Amendments.  Only then was the personhood of slaves explicitly stated in US law.  Nonetheless, such personhood has never fully materialized in a practical sense.  The Fourteenth Amendment has been the legal basis for much of the modern advancement of civil rights, but these gains have only been made under administrations sympathetic to those rights, usually motivated by electoral and practical incentives.  In all other cases, it has been ignored and its victories made temporary by administrative decree and judicial reversal.

Republicans who followed Lincoln chose to appease the vanquished states in the name of national unity, which was always their goal before the Confederates forced their hand. After a brief period where former slaves would take official government positions and even reclaim some of the same farmland where they had served as chattel, the weakness and fecklessness of federal power was laid bare. The Constitution could not allow for the federal government to function as an occupier of its own territory.  The rights of property are too enshrined in its words, the rights of states too prominently secured, to allow for a legal emancipation of labor and the return of the land to the people who till it. Despite the total loss of Southern economic assets and military power, those in Congress had little choice but to give in to the demands of racist fanatics in order to secure a united country where their order and power could be preserved under the existing Constitution.

Reconstruction was a terrific failure, and the very individuals who had rebelled against the United States, its Constitution, its armies, and its people would soon be back in charge of its local governments and control its resources once again.  Its Senators would be recognized, even as voting was returned to its original form (an undemocratic sham), and a regime of slavery-by-another-name would be instituted for another one hundred years, all in exchange for a paltry peace which to this day prevents federal power from curing the most obvious and simple ills of modern society.

The Civil War is alternately cited as the first Modern War, the last war of gentlemen generals, and even the last gasp of agrarian feudal power against the capitalist industrial state.  In reality, it was the most successful war of liberation in American history, followed by the swiftest and most permanent abdication of human rights in that same history.   It was a war to preserve a nation which, only by military necessity, abolished slavery but reinforced every other ill that slavery entailed.  And by its reinstatement after the peace was won, made permanent the racial hegemony and the rights of property required to enforce it that continue to rule America to this day.  All the worst of this was made possible by the US Constitution.  It was always guaranteed.

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It is not an accident that the Protean myths about the ‘Founding Fathers’ are pervasive in the American consciousness.

These stories of heroic men and their intention to build a government based on classical liberalism have served to elegantly justify the establishment of the greatest colonial empire on Earth.  It has provided an ideological basis for military adventurism, endless capitalist expansion, and now global supremacy on behalf of a relatively small group of property owners in the United States and other colonial centers of power.  These myths are so enchanting that, despite the well known moral and ideological perversions that men like Hamilton, Jefferson, Washington and Madison were guilty of, they are appropriated by the very people who have suffered most at the hands of their empire.  After slavery, many of those freed from bondage shed their oppressors’ surnames and adopted the names of the Founders.  Today, musicals are written which exalt an image of those men who would not recognize the world in which such a musical could be written.  In some ways, it is a clever work of counter-culture to distort these myths and repurpose them to tell a new story of what America was, is and could be. Hamilton was an immigrant. Lincoln was gay. But ultimately such revisionism reinforces the idea that America was founded as the Land of Freedom, which is the opposite of the truth.

Works like Hamilton give permission to those who benefit most from the work of the Founders – the people who can afford to see expensive Broadway plays like Hamilton –  to ignore the obvious villainy of the Founders’ intent and the utter hypocrisy of their founding documents. Lin-Manuel Miranda even admits that the actual rap-battle he wrote between Hamilton and Jefferson about the evils of slavery ‘just didn’t fit’ into his story of the first Treasury Secretary-as-scrappy immigrant.  It didn’t serve the story. The story, however, served its subject and his goals just fine.  Much better writers have written about this at length.

Rich white people love Hamilton because it reassures that they are heir to a centuries-long struggle for equal rights that makes their current privileges and comforts justified in the eyes of history.  It appropriates the voice and style of the oppressed to tell wealthy Manhattanites that all their gains are not ill-gotten, and that America, and its laws, will eventually work to the benefit of everyone. Those who are not white may see a reflection of themselves and their aspirations to lay claim to that same legacy. These retellings of America’s founding hint at a chance to make good on the most oft quotes parts of the American promise that everyone will have the same opportunity for liberty and happiness as the people who profit from their labor.

But all of the progress that makes this chance seem likely comes from those who worked outside of the Constitution, or through brute force or chance of history, subverted its original intent.  Lincoln decreed the end of slavery via martial law, and passed the 13th and 14th Amendments without a full complement of Senators.  Roosevelt and Wilson leveraged the chance of a communist uprising, world war, and a total global depression to institute a federal income tax and basic social insurance.  Johnson stood in the wake of a presidential assassination and a global movement for freedom and still had to strong-arm his way to Civil Rights legislation that today is being dismantled by the guardians of the Constitution. One can only imagine what future musicals may be written about John Roberts and Donald Trump, after the next revolution in black music becomes palatable to wealthy audiences, and when a rehabilitation of this decade becomes necessary for the further advancement of American nostalgia.

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The Constitution was always a document designed to protect property and the right to acquire more of it.

But not just anyone’s property.  The property described by the Constitution was always that of colonists, and the yield created by the land and enterprise which they secured by force.  Everyone knows the stories of the first sparks of the Revolutionary War, when colonists protested imperial taxes on common goods imposed by far flung governments. That these taxes were levied by an elected parliament that didn’t allow representation of the colonies to support a war against another colonial empire was irrelevant.  The Americans who started the revolution knew that they had achieved a material and strategic advantage over the British Empire that, if certain bonds could be severed and a new law established, would allow them to continue to colonize and acquire an entire New World for themselves, with no need to share it with anyone.

Personhood as acknowledged by the Constitution has always evolved as demanded by the rights of property, and not the other way around.

When the country was founded, only the personhood of individual land owners and shipping magnates were needed to preserve the ongoing expansion of colonialism.  The recognition of the rights of the poor farmers who were needed to secure the continent from the British, French and Indians was a necessity only so far as the Franchise of voting was concerned, and only in limited ways.  State legislatures elected by wealthy white men chose everything from Senators to presidential nominations to Electors, and gerrymandering made it possible for the elites to choose their voters and thus create hereditary positions of power.  When personhood for slaves became a military necessity, it was granted, but only in so far as it helped to preserve victory for the Union.  When personhood for European immigrants and industrial workers became necessary to prevent a revolution, it was granted.  When personhood for wealthy white women became necessary to preserve a majority over the Catholics and the blacks, it was granted.

Every advancement of personhood under US law has either been forced by administrative decree or granted as a compromise to preserve the authority of the law itself.  Contrary to the assertions of legend, the law has never expanded rights on its own.  Only by force and convenience to the powerful has that pool grown larger, and never larger than was required.

It is that same commitment to the preservation of private property that limits the effectiveness of democracy to challenge the systems which permanently cripple the aspirations of regular people.  The most ambitious aims of the New Deal were struck down by Constitutional decree, an act so egregious that Roosevelt nearly abolished the Supreme Court by fiat by stacking it with liberal justices. Of course, he eventually backed down.  The use of eminent domain to oust absentee landlords who profit from rentierism in urban communities has been squashed time and again by courts.  There is, in fact, nothing more American than to extract rent from poor people while you wait for a neighborhood to gain in value, then evict and profit from the shift in fortunes.  Such land speculation is the heart of the American Dream.  The government sponsored the migration of white Americans to the West via land grant and agricultural schools, colonizing the continent with the force of arms. Government benefits have been apportioned in racist ways since their inception. Public housing policy and government-sanctioned lending practices have deprived black people and immigrants of the opportunity to profit from the most prosperous eras of American economic growth. The Constitution prevented none of this, and protects its perpetrators and their inheritors to this day.

That these programs were discriminatory and genocidal seems to have no bearing on the general American conscience. The fortunes which are borne from it are assumed to be the result of generational toil, and those left behind in this great project are thus blamed for their forebears justified poverty.  The suggestion that such wealth should be reappropriated for public purpose, or even taxed in a way that rectifies the impact of these crimes, is considered un-American. The Constitution and the laws that are derived from it enshrine the rights of those who gained this property by force, and doom forever those left out of the plunder to servitude and debt.

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Party affiliations have changed, but the South and rural states have always controlled the presidency, Congress, and the courts.

The Constitution did not prevent this state of affairs.  It couldn’t.  It was never meant to.

It created it, it abetted it, it guaranteed that this is the way things would turn out.  And today, it is the chief obstacle of democracy in the United States.  Twice in the last twenty years the popular vote has gone to a candidate who did not win the Presidency.  This is not a strange flaw of mathematics.  It is a simple exposition of the primary purpose of electoral law in the United States – to grant rights to property and those who lay legal claim to it, never to individual persons.

I will not reiterate the obvious flaws and purposes of the Electoral College, or the apportionment of Senators to the States, or the use of gerrymandering to construct a permanent rural majority in the US Congress.  But I will point out that all of this, ALL OF THIS, is central to the US Constitution.  The Founders of the Republic distrusted democracies, not because of some Socratic fear of populists like Trump, but because they did not consider the majority of human beings in their country to be persons worthy of rights.  They wrote the 3/5ths clause, they wrote the 10th Amendment, they wrote the rules, and they are working perfectly.

1 in 8 Americans live in California.  We have only 1 in 10 electoral votes. It is because of the Constitution that because Trump won three states – Wisconsin, Michigan and Pennsylvania – by less than 100,000 votes he is president, even though Clinton won California by millions of individual votes.  And now, Trump and the Ryan Congress will dismantle most of the federal government, reinstate torture, attack abortion rights and healthcare generally, and reverse decades of progress on climate change.  This is no accident.

All of this was intended by the framers of the Constitution.

And these rules will never change so long as 3/4ths of all state legislatures must approve any change to these parameters (a majority nearly held by Republicans today) and so long as those in power, both Democrats and Republicans, continue to benefit from the protections afforded by an undemocratic Constitution.

By tying rights to land, and then partitioning that land to the people they chose, the Founders of this country and their descendents guaranteed that the New World would be colonized on behalf of their specific model of Progress.  This power has remained unchecked since 1776 and provides the basis for the police powers and economic inequality that continue to oppress people of color and workers in America today. The reverence of well-intentioned liberals for this ancient, racist document and the poetry it provides to tyrants to justify their crimes is counter-productive.  There is no way to wish away its inherent problems.  There is no chance of amending it against its very purpose. People who desire progress must abandon the myth that the Constitution can be a model for a just society or democratic government. We must set aside the fantasy of its preamble and forge a new creed for Americans to hold up high – one of a nation where the needs of people are advanced before the rights of property, where the means for a better life are at the command of the people themselves, and where power is turned over to the advancement of social welfare, regardless of its impact on hereditary wealth, or the rights of abstract entities like ‘Wyoming’ or ‘Lockheed Martin.’

We need a Constitution that puts the rights of people above the rights of states, above the rights of property.

To build a new country, we need a new Constitution.

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