Constitutional Repression
By Steve Bergstein
IF THERE'S ONE thing upon which both liberals and conservatives can agree, it is that the U.S. Constitution, whatever atrocities governmental officials inflict in its name, remains fundamentally sound and establishes a comprehensive charter preserving individual freedoms and protections against governmental abuse. Similarly, the American media, despite a public image as a biased observer of events of the day, is counted on to serve as conduit for the people, though at times over-aggressive in its coverage.
Fact or fiction?
American Freedom: Contradiction in Terms?
Gathering to mend what many considered a faulty Articles of Confederation that governed a young United States through the American Revolution, the Founding Fathers behind closed doors drafted a new blueprint for American government that shifted substantial power from the states to a centralized government and established mechanisms to control the use of that power. Protected by their now institutionalized image as do-gooders and democratic visionaries, our Founding Fathers today take the credit for creating-- like the American flag --an entity pulling the country together through slavery, two World Wars, a Depression, Watergate, Iran-Contra, the Clinton scandals and so on.
In fact, few attending the legendary Constitutional Convention were mesmerized by the thought of democracy. Many expressed an open distrust of the common man and working poor, and inherent in the Constitution are several devices to check public power and fulfill the grand vision of the non-binding Preamble ("We the people...")
"The people, sir, are a great beast," remarked statesman Alexander Hamilton. "(They) seldom judge or determine right. Give therefore the First Class a permanent place in the government. They will check the unsteadiness of the Second." The Constitution, wrote James Madison, would if ratified "refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial consideration."
Perhaps the work of the Framers was best summed up by John Jay, later to become chief justice of the Supreme Court -- the rich "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." In sum, Jay said, "The people who own the country ought to govern it." The political vision of Hamilton, Madison and Jay, among others, contributed to the nationwide disgust toward the proposed Constitution among the non-rich peasants and common-folk. Anti-Constitution uprisings such as Shay's rebellion were stifled by government forces and the document ultimately gained ratification after the Framers pulled a fast one and, among other tactics, coerced unwilling delegates to accept it and decreased the number of states needed for ratification.
By removing direct selection of the presidency and Senate, disenfranchising women, Blacks and Native Americans, empowering Congress to suspend habeas corpus in the event of public rebellion and allowing them to provide over most economic decisions without consulting the states, the Framers constructed a system whereby private power would pre-empt public sentiment. The new national system would take the steam out of the more democratically-oriented local politics and shift power into fewer hands. "Extend the sphere and you take in a greater variety of parties and interests," said James Madison. "You make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other."
John Quincy Adams was more precise: The Constitution was "calculated to increase the power, power and wealth of those who have any already."
The Framers' desire to divide the population along class lines was more an effort to strengthen the status quo than an idea for the future. Eighteenth century America offered relatively little power or wealth to the non-elite. "Although it enjoyed an abundance of land-- the most important basis for high status in Europe --there was not equal opportunity for getting that land," writes historian Sidney H. Aronson. "Men of influence received tremendous grants, while the poor and powerless often had to enter into temporary servitude before they could buy or rent a farm," Aronson wrote. Outside New England, few owned land and, those who did in Virginia, for example, would exhaust and destroy the soil and then migrate to the western part of the state where seven people owned 1.7 million acres. Historian Jackson Turner Main describes late 18th century America as relatively free of class consciousness but nonetheless very much class oriented. "Americans took pride in the fact that class distinctions were minor by comparison with Europe. Nevertheless many also believed that the differences between the rich and poor were greater than they ought to be. Classes did exist and were recognized as significant. He cites as one example "The American's opportunity to obtain a formal education depended upon where he lived and how much money he made." About ten percent of the people went to college.
Perhaps the clearest indication of class domination in post-revolutionary America was the makeup of the Constitutional Framers. Many were lawyers and slave owners who feared "the imprudence of democracy (Hamilton) and "wicked projects" like the "equal division of property" (Madison). Even George Washington, hailed as Father of our Country, owned hundreds of slaves and was perhaps the richest man in the country. "He feared...the type of politics represented by the Democratic Societies which sprang up during his administration, and locked upon criticism of the government as akin to sedition," writes historian Charles A. Beard.
That a highly unrepresentative segment of the population created the Constitution explains how it systematically serves elitist ends. It should come as no surprise that the document originally failed to include a bill of rights, and in the one state where residents were permitted to vote on it-- Rhode Island --it was rejected by more than ten to one.
Both the Constitutional "Separation of Powers" and "checks and balances" traditionally revered as guarantees against legislative, executive and judicial tyranny, actually check public impulse and prevent the elite class from conceding power. The separations, according to political analyst Jerry Fresia, allowed "the Framers, as elites within the private economy...to protect their individual freedom as property owners from state intrusion. The point is that as national government was purposefully made inefficient, it would leave private power, or the power of business or corporate elites untouched." The checks were modeled after the British government where the upper house consisted of aristocrats unaccountable to the public so as to keep an eye on the lower house of directly elected representatives that could become a conduit for those "who will labor under all the hardships of life, and secretly sigh for a more equal distribution of its blessings," explained James Madison.
Importantly, no checks exist to monitor private power, as expected, considering the demographic makeup of the Framers. This means that corporations can limit freedom of speech in the workplace and invade your liberties in a manner that could easily land governmental officials in court. While the Constitution limits governmental authority and provides for oversight of public agencies and accountability for elected officials, private agencies engage in the pursuit of profit with substantially less oversight. By way of example, while the government is held to a "shocks the conscience" standard when citizens bring certain civil rights suits against it, a corporation can fire its employees and move its operations to a Third World country and save millions on labor costs without any fear that a court will deem that activity sufficiently "shocking" to warrant damages for the unemployed workers whose have been completely disrupted.
Writes historian Jerry Fresia, "A political-economic document, the Constitution was supposedly designed to 'preserve the spirit and form of popular government' (Madison) even as the substance of popular government was taken away and the participatory politics flourishing at the local level was destroyed. This was done out of fear and distrust of the political tendencies of common people or what Madison called an 'unjust and uninterested majority'. Having established the political supremacy of property owners, the Constitution was then able to authorize the state to encourage economic expansion through the regulation of commerce, the protection of industry, trade and private property, the guarantee of contracts, and the development of a capital market. In other words, the state was placed at the service of private elites and made an instrument of private power."
Subsequent Constitutional changes accorded women and racial minorities the right to vote and outlawed slavery. But subsequent statutes deprived the public from policy input through the creation of such secret governments as the CIA, National Security Agency, the political surveillance of the FBI and other appointive agencies like the Office of Management and Budget that oversaw major decisions without significant public input.
The Constitution and the press
The inherent flaws in the Constitution extends to one of our most cherished freedoms -- freedom of the press. In keeping with the Framers' intent to deny Americans sufficient power to control their lives, the public is guaranteed freedom of the press more in theory than in practice. If Alexander Hamilton had his way, freedom of the press never would have been inserted in the Constitution. "...bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to powers which are not granted. For why declare that things shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power," Hamilton wrote.
Despite Constitutionally-guaranteed protections, dissident Americans traditionally encounter roadblocks and at times are even killed. "Subversives" like those participating in Shay's Rebellion to protest the Constitution experienced what American Communists of the 1930s, Black and student activists of the l970s and Central American peace groups of the 1980s did.
U.S. Communist Party leader Gus Hall spent nine years in jail for his views. The Sedition Act of 1898 made it illegal to write anti-government statements, sending one man to jail for 18 months for complaining that governmental power rested in the hands of a few. Extensive FBI surveillance of Central America solidarity groups during the 1980s, like the COINTELPRO investigations of the 1960s and 1970s, disrupted organizations critical of governmental policy.
The Senate learned in 1975 that federal agencies keep more than one billion files, many of which on Americans holding political views out of the mainstream. The FBI began domestic surveillance during the l930s when the leftist orientation of many labor unions alarmed J. Edgar Hoover and President Roosevelt. By 1953, 13.5 million persons (or one in five workers) were required to pass loyalty/security tests. The new FBI building in Washington devotes 35,000 linear feet to domestic intelligence files. The rest of the FBI's work takes up 23,000 linear feet, Jerry Fresia wrote in 1988.
Despite Constitutionally-guaranteed power, the American press, too, operates with restraint, much of it executed voluntarily. Rather than provide adversarial commentary and news coverage, it finds little reason to go beyond a mildly adversarial role and, instead protects private power at the expense of its readers. Like the CIA, the Pentagon and other non-elected agencies, the corporate-run mass media here is less a voice of the people than a conduit for the private power, occasionally taking issue with bits and pieces of policy while supporting an overall framework of order characterized by governmental repression and capitalist and Third World exploitation.
There are several reasons for this. First, control of most major media here lie in the hands of corporations and by necessity cater to these elements on which the government relies to keep the economy afloat. Underhanded brainwashing is required to ensure that public discontent does not shatter the stronghold on public policy enjoyed by a private sector driven solely by profit and public relations. Reportage and opinion of news of the day is tailored to either keep the public in the dark or manipulate the way they see a world that very often serves as a playground for U.S. corporations and elite power at the expense of millions who suffer daily.
The latest outrage among public policy organizations and activists is that the Federal Communications Commission has made it easier for media companies to own additional media outlets. But the trend towards a media monopoly has been accelerating for more than 20 years, with more and more companies controlling much of what news consumers read. This consolidation necessarily locks out dissenting views, particularly those pushing for economic justice and radical changes in American foreign policy.
The Constitution and discrimination against the poor
How do the Courts deal with the Constitutional scheme that promotes the interest of the wealthy over the poor? While the Supreme Court generally looks out for "discrete and insular minorities" like African-Americans, women and others who would otherwise have their rights trampled by majority rule, the Court has not deemed discrimination against the poor to violate the Equal Protection Clause. This issue came before the Supreme Court in the 1970's, when activists challenged taxation policies that unfairly impacted poor homeowners and a law that prohibited public financing of abortion, restrictions that forced people on public assistance to scramble to pay for these services. As Justice Potter Stewart wrote in upholding the taxation laws, "The method of financing public schools in Texas, as in almost every other State, has resulted in a system of public education that can fairly be described as chaotic and unjust. It does not follow, however, and I cannot find, that this system violates the Constitution of the United States." This is what lawyers call "outcome-determinative" reasoning -- where the court decides the result first and then devises reasoning to support that result. According to "The Bretherin," an insider's account of the Supreme Court written by investigative journalist Bob Woodward, Justice Stewart was privately concerned that a contrary result in the school financing case would undermine the capitalist system.
However, the Equal Protection Clause, like nearly every other part of the Constitution, is written broadly and vaguely. The courts devise ways to interpret those provisions and reams of case law containing intricate judicial reasoning line American law offices. No one argues a case solely by citing a broad provision of the Constitution. Lawyers instead argue from case law that focuses on a particular legal issue. For this reason, Supreme Court rulings are really exercises in political science. The Court tackles a problem over civil liberties by weighing the government's interest against that of the private citizen. If the governmental interest is strong and the private citizen's interest is (to the Court) relatively marginal, the government may win.
Of course, the Constitution says nothing about how the Court should decide cases or whether broad provisions of that document should be interpreted strictly and without any regard for nuances. So the Court has the opportunity from time to time to expand upon Constitutional rights. It did so in the 1950's in broadening the scope of the First Amendment to protect dissenters and in ordering school districts to integrate. It did so again in the 1970's when the Court held that "due process" requires certain the government to respect procedural mechanisms in depriving citizens of certain rights, i.e., a fair hearing, right to counsel, etc. Recently the Supreme Court held that states cannot criminalize sodomy, holding broadly that consensual sex among gay men cannot be criminalized by the state. But when the Supreme Court had the chance in the 1970's to take a firm stand against discrimination against the poor, it failed to do so, implying-- as the Founding Fathers would have suggested --that the rich and powerful are entitled to certain advantages that the common man can only dream about.
The broad freedom enjoyed by the Supreme Court to resolve cases in an intellectually honest manner means that the Court, with a different lineup, could have adopted the dissenting opinion of Justice Marshall, at the time the only African-American Justice on the Court and one of the few members of the Court who had regularly represented poor people as a private lawyer. He wrote: "The Court today decides, in effect, that a State may constitutionally vary the quality of education which it offers its children in accordance with the amount of taxable wealth located in the school districts within which they reside. The majority's decision represents an abrupt departure from the mainstream of recent state and federal court decisions concerning the unconstitutionality of state educational financing schemes dependent upon taxable local wealth. n1 More unfortunately, though, the majority's holding can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens. The Court does this despite the absence of any substantial justification for a scheme which arbitrarily channels educational resources in accordance with the fortuity of the amount of taxable wealth within each district."
Since that case was decided five-four, one Justice could have made the difference in the outcome, which could have altered the social landscape in this country. Yet, public discussions about the Supreme Court almost never make reference to the leeway it has granted the government to discriminate against the poor. The media adopts various social issues like abortion, affirmative action and freedom of speech to the exclusion of other issues which are equally important. This makes sense from the point of view that our educational system and social institutions avoid any serious discussion of class and the structural protections our system of government provides the wealthy. There is no broad-based social movement to change the Supreme Court's philosophy in this area, and when the President nominates new Justices to the Court, Congress does not bother to ask nominees any questions about their stance on these issues. In large part, that is the consequence of a capitalist-driven media and a Constitution itself that does not stand in the way of discriminatory policies that disparately impact the poor. This is probably what the framers of the Constitution wanted.++
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