Enough with the Holy Founders' Undemocratic Constitution

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

By Paul Street

June 02, 2015 "Information Clearing House" - 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.

Paul Street is the author of They Rule: The 1% v. Democracy (Paradigm, 2014).

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).