Future generations, if there are any, will date the second American Revolution, if there is one, from the passage of California’s Proposition 13 in 1978, which obliged the managers of that gilded state to reduce by more than half the tax on real estate. Historically, this revolt was not unlike the Boston Tea Party, which set in train those events that led to the separation of England’s thirteen American colonies from the crown and to the creation, in 1787, of the First Constitution. And in 1793 (after the addition of the Bill of Rights) of the Second Constitution. And in 1865 of the Third Constitution, the result of those radical alterations made by the Thirteenth, Fourteenth, and Fifteenth amendments. Thus far we have had three Constitutions for three quite different republics. Now a Fourth Constitution—and republic—is ready to be born.
The people of the United States (hereinafter known forever and eternally as We) are deeply displeased with their government as it now malfunctions. Romantics who don’t read much think that all will be well if we would only return, somehow, to the original Constitution, to the ideals of the founders, to a strict construction of what the Framers (nice word) of the First Constitution saw fit to commit to parchment during the hot summer of 1787 at Philadelphia. Realists think that an odd amendment or two and better men in government (particularly in the Oval Office, where too many round and square pegs have, in recent years, rattled about) would put things right.
It is taken for granted by both romantics and realists that the United States is the greatest country on earth as well as in the history of the world, with a government that is the envy of the lesser breeds just as the life-style of its citizens is regarded with a grinding of teeth by the huddled masses of old Europe—while Africa, mainland Asia, South America are not even in the running. Actually, none of the hundred or so new countries that have been organized since World War II has imitated our form of government—though, to a nation, the local dictator likes to style himself the President. As for being the greatest nation on earth, the United States’ hegemony of the known world lasted exactly five years: 1945-1950. As for being envied by the less fortunate (in a Los Angeles Times poll of October 1, 1980, 71 percent of the gilded state’s citizens thought that the United States had “the highest living standard in the world today”), the United States has fallen to ninth place in per capita income while living standards are higher for the average citizen in many more than eight countries.
Although this sort of information is kept from the 71 percent, they are very much aware of inflation, high taxes, and unemployment. Because they know that something is wrong, Proposition 13, once a mere gleam in the eye of Howard K. Jarvis, is now the law in California and something like it has just been enacted in Massachusetts and Arkansas and several other states. Our ancestors did not like paying taxes on their tea; we do not like paying taxes on our houses, traditionally the only form of capital the average middle-class American is able to accumulate.
Today, thanks to the efforts of the National Taxpayers Union, thirty state legislatures have voted in favor of holding a new constitutional convention whose principal object would be to stop the federal government’s systematic wrecking of the economic base of the country by requiring, somewhat naïvely, a balanced federal budget and, less naïvely, a limitation on the federal government’s power to print money in order to cover over-appropriations that require over-borrowing, a process (when combined with a fifteen-year decline in industrial productivity) that has led to double-digit inflation in a world made more than usually dangerous by the ongoing chaos in the Middle East from which the West’s oil flows—or does not flow.
Even the newspapers that belong to the governing establishment of the republic are beginning to fret about that national malaise which used to trouble the thirty-ninth Oval One. Two years ago, The New York Times printed three articles, more in sorrow than in anger, on how, why, where, when did it all go wrong? “The United States is becoming increasingly difficult to govern,” the Times keened, “because of a fragmented, inefficient system of authority and procedures that has developed over the last decade and now appears to be gaining strength and impact, according to political leaders, scholars and public interest groups across the country.”
Were this not an observation by an establishment newspaper, one would think it a call for a Mussolini: “difficult to govern…inefficient system of authority….” Surely, We the People govern, don’t we? This sort of dumb sentiment is passed over by the Times which notes that “the national political parties have continued to decline until they are little more than frameworks for nominating candidates and organizing Congress and some state legislatures.” But this is all that our political parties have ever done (honorable exceptions are the first years of the Republican Party and the only years of the Populists). The Framers did not want political parties—or factions, to use their word. So what has evolved over the years are two pieces of electoral machinery devoted to the acquiring of office—and money. Since neither party represents anything but the interests of those who own and administer the country, there is not apt to be much “choice” in any election.
Normally, The New York Times is perfectly happy with any arrangement of which the Times is an integral part. But a series of crazy military adventures combined with breathtaking mismanagement of the economy (not to mention highly noticeable all-out corruption among the politicos) has thrown into bright relief the failure of the American political system. So the thirty-ninth Oval One blames the people while the people blame the lousy politicians and wish that Frank Capra would once more pick up the megaphone and find us another Gary Cooper (not the second lead) and restore The Dream.
Serious establishment types worry about the Fragmentation of Power. “Our political system has become dominated by special interests,” said one to the Times, stars falling from his eyes like crocodile tears. After all, our political system is—and was—the invention of those special interests. The government has been from the beginning the cosa nostra of the few and the people at large have always been excluded from the exercise of power. None of our rulers wants to change this state of affairs. Yet the heirs of the Framers are getting jittery; and sense that something is going wrong somewhere. But since nothing can ever be their fault, it must be the fault of a permissive idle electorate grown fat (literally) before our eyes which are television. So give the drones less wages; more taxes; and put them on diets.
But the politician must proceed warily; if he does not, that 71 percent which has been conned into thinking that they enjoy the highest standard of living in the world might get suspicious. So for a while the operative word was “malaise” in political circles; and no effort was made to change anything. Certainly no one has recognized that the principal source of all our problems is the Third Constitution which allows the big property owners to govern pretty much as they please, without accountability to the people or to anyone else, since for at least a century the Supreme Court was perhaps the most active—even reckless—part of the federal machinery, as we shall demonstrate.
There is more than the usual amount of irony in the fact that our peculiar Constitution is now under siege from those who would like to make it either more oppressive (the Right-to-Lifers who want the Constitution to forbid abortion) or from those sly folks who want to make more and more money out of their real-estate shelters. But no matter what the motive for change, change is now very much in the air; and that is a good thing.
This autumn, the Counsel to the President, Mr. Lloyd N. Cutler, proposed some basic changes in the Constitution.1 Although Mr. Cutler’s approach was tentative and highly timid (he found no fault at all with the Supreme Court—because he is a partner in a Washington law firm?), he does think that it is impossible for a president to govern under the present Constitution because the separation of powers has made for a stalemate between executive and legislative branches. Since “we are not about to revise our own Constitution so as to incorporate a true parliamentary system,” he proceeded to make a number of suggestions that would indeed give us a quasi-parliamentary form of government—president, vice president, and representative from each congressional district would all be elected at the same time for a four-year term (Rep. Jonathan Bingham has such a bill before the House); half the Cabinet to be selected from the Congress where they would continue to sit—and answer questions as in England; the president would have the power, once in his term, to dissolve the Congress and hold new elections—and the Congress would have the power, by a two-thirds vote, to call for a new presidential election; et cetera. Mr. Cutler throws out a number of other notions that would involve, at most, amendments to the Constitution; he believes that a new Constitutional convention is a “non-starter” and so whatever change that is made must originate in the government as it now is even though, historically, no government has ever voluntarily dissolved itself.
Mr. Cutler also suffers from the malaise syndrome, contracted no doubt while serving in the Carter White House: “The public—and the press—still expect the President to govern. But the President cannot achieve his overall program, and the public cannot fairly blame the President because he does not have the power to legislate and execute his program.” This is perfect establishment nonsense. The president and the Congress together or the president by himself or the Supreme Court on its own very special power trip can do virtually anything that they want to do as a result of a series of usurpations of powers that have been taking place ever since the Second Constitution of 1793.
When a president claims that he is blocked by Congress or Court, this usually means that he does not want to take a stand that might lose him an election. He will then complain that he is stymied by Congress or Court. In 1977, Carter could have had an energy policy if he had wanted one. What the president cannot get directly from Congress (very little if he knows how to manage those princes of corruption), he can often obtain through executive order, secure in the knowledge that the House of Representatives is not apt to exercise its prerogative of refusing to fund the executive branch: after all, it was nearly a decade before Congress turned off the money for the Vietnam war. In recent years, the presidents have nicely put Congress over a barrel through the impounding of money appropriated for projects displeasing to the executive. Impounded funds combined with the always vast Pentagon budget and the secret revenues of the CIA give any president a plump cushion on which to rest his Pharaonic crook and flail.
Obviously, a president who does not respect the decent opinion of mankind (a.k.a. The New York Times) can find himself blocked by the Court and impeached by Congress. But the Nixon misadventure simply demonstrated to what extremes a president may go before his money is turned off—before the gates of Lewisberg Federal Penitentiary, like those to Hell or Disneyland, swing open.
Carter could have given us gas rationing, disciplined the oil cartels, encouraged the development of alternative forms of energy. He did none of those things because he might have hurt his chances of re-election. So he blamed Congress for preventing him from doing what he did not want to do. This is a game that all presidents play—and Congress, too. Whenever the Supreme Court strikes down a popular law which Congress has been obliged to enact against its better judgment, the Supreme Court gets the blame for doing what the Congress wanted to do but dared not. Today separation of powers is a useful device whereby any sin of omission and commission can be shifted from one branch of government to another. It is naïve of Mr. Cutler to think that the president he worked for could not have carried out almost any program if he had wanted to. After all, for eight years Johnson and Nixon prosecuted the longest and least popular war in American history by executive order. Congress’s sacred and exclusive right to declare war was ignored (by Congress as well as by the presidents) while the Supreme Court serenely fiddled as Southeast Asia burned. Incidentally, it is startling to note that neither Congress nor the Court has denied the principle of executive order, even in the steel seizure case.
What was the original Constitution all about? I mean by this what was in the document of 1787 as defended in the Federalist Papers of 1787-1788 by Madison, Hamilton, and Jay. Currently, Ferdinand Lundberg’s Cracks in the Constitution is as good a case history of that Constitution (and its two successors) as we are apt to get this troubled season. Lundberg is the latest—if not the last—in the great line of muckrakers (TR’s contemptuous phrase for those who could clean with Heraclean zeal the national stables which he, among others, had soiled) that began with Steffens and Tarbell. Luckily for us, Lundberg is still going strong.
The father of the country was the father if not of the Constitution of the convention that met in May, 1787, in Philadelphia. Washington had been troubled by the civil disorders in Massachusetts in particular and by the general weakness of the original Articles of Confederation in general. From Mount Vernon came the word; and it was heard—and obeyed—all around the states. Quick to respond was Washington’s wartime aide Alexander Hamilton, who knew exactly what was needed in the way of a government. Hamilton arrived at Philadelphia with a scheme for a president and a senate and a supreme court to serve for life—while the state governors would be appointed by the federal government.
Although neither John Adams nor John Jay was present in the flesh at Philadelphia, Jay’s handiwork, the constitution of New York State (written with Gouverneur Morris and R.J. Livingston), was on view as was that of John Adams, who wrote nearly all of the Massachusetts state constitution; these two charters along with that of Maryland were the basis of the convention’s final draft, a curious document which in its separation of powers seemed to fulfill not only Montesquieu’s cloudy theories of separation of powers but, more precisely, was a mirror image of the British tripartite arrangement of crown, bicameral legislature, and independent judiciary. Only the aged Franklin opted for a unicameral legislature. But the other Framers had a passion for England’s House of Lords; and so gave us the Senate.
Lundberg discusses at some length just who the Framers were and where they came from and how much money they had. The state legislatures accredited seventy-four men to the convention. Fifty-five showed up that summer. About half drifted away. Finally, “no more than five men provided most of the discussion with some seven more playing fitful supporting roles.” Thirty-three framers were lawyers (already the blight had set in); forty-four were present or past members of Congress; twenty-one were rated rich to very rich—Washington and the banker Robert Morris (soon to go to jail where Washington would visit him) were the richest; “another thirteen were affluent to very affluent”; nineteen were slave owners; twenty-five had been to college (among those who had not matriculated were Washington, Hamilton, Robert Morris, George Mason—Hamilton was a Columbia drop-out). Twenty-seven had been officers in the war; one was a twice-born Christian—the others tended to deism, an eighteenth-century euphemism for agnosticism or atheism.
All in all, Lundberg regards the Framers as “a gathering of routine politicians, eyes open for the main chance of a purely material nature…. What makes them different from latter-day politicians is that in an age of few distractions, many—at least twenty—were readers to varying extents in law, government, history and classics.”
Lundberg does not accept the traditional American view that a consortium of intellectual giants met at Philadelphia in order to answer once and for all the vexing questions of how men are to be governed. Certainly, a reading of the Federalist Papers bears out Lundberg. Although writers about the Constitution like to mention Locke, Hume, Montesquieu and the other great savants of the Enlightenment as godfathers to the new nation, Montesquieu is quoted only four times in the Federalist Papers; while Hume is quoted just once (by Hamilton) in a passage of ringing banality. Locke is not mentioned. Fans of the Framers can argue that the spirit of Locke is ever-present; but then non-fans can argue that the prevailing spirit of the debate is that of the never-mentioned but always felt Hobbes. There is one reference each to Grotius, Plato, and Polybius. There are three references to Plutarch (who wrote about great men) and three to Blackstone (who showed the way to greatness—or at least the higher solvency—to lawyers). God is mentioned three times (in the Thank God sense) by Madison, a clergyman’s son who had studied theology. Jesus, the Old and New Testaments, abortion, and women’s rights are not alluded to. The general tone is that of a meeting of the trust department of Sullivan and Cromwell.
Lundberg quotes Merrill Jensen as saying, “Far more research is needed before we can know, if ever, how many men actually voted for delegates to the state conventions [which chose the Framers]. An old guess that about 160,000 voted—that is, not more than a fourth or fifth of the total adult (white) male population—is probably as good as any. About 100,000 of these men voted for supporters of the Constitution and about 60,000 for its opponents.” It should be noted that the total population of the United States in 1787 was about three million of which some 600,000 were black slaves. For census purposes, each slave would be counted as three-fifths of a person within the First Republic.
The Framers feared monarchy and democracy. In order to prevent the man who would be king from assuming dictatorial powers and the people at large from seriously affecting the business of government, the Framers devised a series of checks and balances within a tripartite government that would, they hoped (none was very optimistic: they were practical men), keep the people and their passions away from government and the would-be dictator hedged ’round with prohibitions.
In the convention debates, Hamilton took on the romantic notion of the People: “The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to [the rich and wellborn] a distinct, permanent share in the government.” The practical old Tory Gouverneur Morris took the same view though he expressed himself rather more serenely than the fierce young man on the make: “The rich will strive to establish their dominion and enslave the rest. They always did. They always will. The proper security against them is to form them into a separate interest.” Each was arguing for a Senate of lifetime appointees, to be chosen by the state legislatures from the best and the richest. It is curious that neither envisioned political parties as the more natural way of balancing economic interests.
Since Hamilton’s dark view of the human estate was shared rather more than less by the Framers (“Give all power to the many, they will oppress the few. Give all power to the few, they will oppress the many”), the House of Representatives was intended to be the principal engine of the tripartite government. Like the British Parliament, the House was given (in Hamilton’s words) “The exclusive privilege of originating money bills…. The same house will possess the sole right of instituting impeachments; the same house will be the umpire in all elections of the President….” And Hamilton’s ultimate defense of the new Constitution (Federalist Paper No. 60) rested on the ingenious way that the two houses of Congress and the presidency were chosen: “The House of Representatives …elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.”
This was disingenuous: the electoral franchise was already so limited in the various states that only the propertied few had a hand in electing the House of Representatives and the state legislatures. Nevertheless, this peculiar system of government was a success in that neither the mob nor the dictator could, legally at least, prevail. The turbulent “democratic” House would always be reined in by the appointed senators in combination with the indirectly elected president and his veto. The Constitution gave the oligarch, to use Madison’s word, full possession of the government—the object of the exercise at Philadelphia. Property would be defended, as George Washington had insisted that it should be. (Since Jefferson’s teeth were set on edge by the word property, the euphemism “pursuit of happiness” had been substituted in the Declaration of Independence. Much pleased with this happy phrase, Jefferson recommended it highly to the Marquis de Lafayette when he was Rights of Maning it in France.)
The wisest and shrewdest analysis of how the House of Representatives would evolve was not provided by the would-be aristo Hamilton but by the demure James Madison. In Federalist Paper No. 59, Madison tried to set at ease those who feared that popular gathering in whose horny hands had been placed the national purse. Madison allowed that as the nation increased its population, the House would increase its membership. But, said he with perfect candor and a degree of complacency, “The people can never err more than in supposing that by multiplying their representatives beyond a certain limit they strengthen the barrier against the government of the few. Experience will forever admonish them that…they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic” because “the greater the number composing [a legislative assembly] the fewer will be the men who will in fact direct their proceedings.” Until the present—and temporary—breakdown of the socalled lower House, this has proved to be the case.
By May 29, 1790, the Constitution had been ratified by all the states. The need for a bill of rights had been discussed at the end of the convention but nothing had been done. Rather than call a second convention, the Bill of Rights was proposed—and accepted—as ten amendments to the new Constitution. A principal mover for the Bill of Rights was George Mason of Virginia, who had said, just before he left Philadelphia, “This government will set out [commence] a moderate aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical [oppressive] aristocracy: it will most probably vibrate some years between the two, and then terminate in the one or the other.” The words in brackets were supplied by fellow Virginian—and note-taker—Madison. As the ancient Franklin observed brightly, sooner or later every republic becomes a tyranny. They liked reading history, the Framers.
But the wild card in the federal apparatus proved not to be the predictable Congress and the equally predictable presidency whose twistings and turnings any reader of Plutarch might have anticipated. The wild card was the Supreme Court.
Lundberg calls attention to the following language of Article III of the Constitution.
“The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
The preceding twelve words [he continues] are emphasized because they are rarely alluded to in discussions about the Court. They bring out that, under the Constitution, the Supreme Court is subject to regulation by Congress, which may make exceptions among the types of cases heard, individually or by categories. Congress, in short, is explicitly empowered by the Constitution to regulate the Court, not vice versa.
Certainly, the Court was never explicitly given the power to review acts of Congress. But all things evolve and it is the nature of every organism to expand and extend itself.
In 1800, the outgoing Federalist President John Adams made a last minute appointment to office of one William Marbury. The incoming Republican President Jefferson ordered his secretary of state Madison to deny Marbury that office. Marbury based his right to office on Section 13 of Congress’s Judiciary Act of 1789. Federalist Chief Justice John Marshall responded with marvelous cunning. In 1803 (Marbury v. Madison) he found unconstitutional Section 13, the work of Congress; therefore, the Court was unable to go forward and hear the case. The partisan Jefferson was happy. The equally partisan Marshall must have been secretly ecstatic: he had set a precedent. In passing, as it were, Marshall had established the right of the Supreme Court to review acts of Congress.
The notion of judicial review of the Executive or of Congress was not entirely novel. Hamilton had brought up the matter in 1787 (Federalist Paper No. 78). “In a monarchy [the judiciary] is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and representations of the representative body.” But the other Framers did not accept, finally, Hamilton’s view of the Court as a disinterested umpire with veto power over the legislative branch. Yet Hamilton had made his case most persuasively; and he has been much echoed by subsequent upholders of judicial review.
Hamilton believed that the judiciary could never be tyrannous because it lacked real power; he does admit that “some perplexity respecting the rights of the courts to pronounce legislative acts void because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void must necessarily be superior to the one whose acts must be declared void.” Since this is true and since the Constitution that Hamilton is defending does not give judicial review to the Supreme Court, Hamilton does a most interesting dance about the subject. The Constitution is the “fundamental law” and derives from the people. If the legislative branch does something unconstitutional it acts against the people and so a disinterested court must protect the people from their own Congress and declare the act void.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both, and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.
This is breathtaking, even for Hamilton. He has now asserted that a court of life appointees (chosen from the rich and wellborn) is more interested in the rights of the people than the House of Representatives, the only more or less democratically elected branch of the government. But Hamilton is speaking with the tongue of a prophet who knows which god he serves. The future in this, as in so much else, was what Hamilton had envisaged, constitutional or not. Characteristically, by 1802, he had dismissed the Constitution as “a frail and worthless fabric.”
Marshall was most sensitive to the charge of judicial usurpation of congressional primacy; and during the rest of his long tenure on the bench, he never again found an act of Congress unconstitutional. But Marshall was not finished with republic-shaping. Although he shared the Framers’ passion for the rights of property, he did not share the admittedly subdued passion of certain Framers for the rights of the citizens. In 1833, Marshall proclaimed (speaking for a majority of his Court in Barron v. City of Baltimore) that the Bill of Rights was binding only upon the federal government and not upon the states. In order to pull off this caper, Marshall was obliged to separate the amendments from the Constitution proper so that he could then turn to Article VI, Paragraph 2, where it is written that this Constitution (pre-Bill of Rights) “shall be the supreme law of the land…any thing in the Constitution or laws of any state to the contrary notwithstanding.” Apparently, the first ten amendments were not an integral part of “this Constitution.”
The result of Marshall’s decision was more than a century of arbitrary harassment of individuals by sheriffs, local police, municipal and state governing bodies—to none of whom the Bill of Rights was held to apply. As for the federal government, the Supreme Court was only rarely and feebly willing to enforce the rights of citizens against it. It is startling to think that the Supreme Court did not seriously begin to apply the Bill of Rights to the states until the 1930s despite the Fourteenth Amendment (1868) which had spelled out the rights of all citizens. Gradually, over the last thirty years, an often grudging court has doled out to the people of the United States (including Mr. Brown) most of those rights which George Mason had wanted them to have in 1793.
Fifty-four years after Marbury v. Madison, the Supreme Court found a second act of Congress unconstitutional. In order to return property to its owner (the slave Dred Scott to his master Dr. Emerson), the Supreme Court declared unconstitutional the Missouri Compromise; and made inevitable the Civil War. It was ironic that the Court which Hamilton had so Jesuitically proposed as a defender of the people against a wicked legislature should, in its anxiety to protect property of any kind, have blundered onto a stage where it had neither competence nor even provenance. (Article IV: “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States….”) But the wild card had now been played. Judicial review was a fact. The Court was now ready—give or take a Civil War or two—to come into its unconstitutional own.
In 1864, the Court struck down the income tax, denying Congress its absolute power to raise revenue; and not until the passage of the Sixteenth Amendment (1913) did Congress get back its right, in this instance, to raise taxes—which it can never not have had, under the Constitution. But as Lundberg says, “The Court had gained nearly eighteen years of tax-free bliss for its patrons although it was shown to be out of harmony with the thinking of the country as well as that of the framers, previous courts, and legal scholars—and the Constitution.”
From March 9, 1865 (when the management of the reigning Republican Party became almost totally corrupt), to 1970, ninety acts of Congress were held void in whole or in part. Most of these decisions involved property, and favored large property owners. As of 1970, the Court had also managed to overrule itself 143 times. Plainly, the Constitution that the justices keep interpreting and reinterpreting is a more protean document than the Framers suspected. “The trouble with the Constitution of the United States,” wrote the London Chronicle a century ago, “is that nobody has ever been able to find out what it means.” Or, put another way, since everybody knows what it means much trouble must be taken to distort the meaning in order to make new arrangements for the protection of property.
Lundberg takes the position that, by and large, the Court’s behavior is the result of a tacit consensus among the country’s rulers: that two percent of the population—or one percent, or sixty families, or those active members of the Bohemian Club—which owns most of the wealth of a country that is governed by the ruler’s clients in the three branches of government. On those occasions when their Congress is forced by public opinion to pass laws that they do not want enacted, like the income tax of 1864, they can count either on their president’s veto or on the Court’s invocation of the Constitution to get Congress off the hook. The various courts are so devised, Lundberg writes, as to “rescue the legislatures and executives from their own reluctant acts.”
Except for the passing of the Sixteenth Amendment, Congress has made only two serious attempts to reclaim its constitutional primacy over the Court (as opposed to a lot of unserious attempts). The first was in 1868. The House Judiciary Committee, fearful that the Court would strike down a number of reconstruction acts, reported a bill requiring that two-thirds of a court’s judges must concur in any opinion adverse to the law. This bill passed the House but died in the Senate. In the same year, the House did manage to pass a law (over presidential veto) to limit certain of the Court’s appellate powers. On March 19, 1869, the Court unanimously bowed to Congress, with a sideswipe to the effect that although the Constitution did vest them with appellate powers, the clause that their powers were conferred “with such exceptions and under such Regulations as Congress shall make” must be honored.
This is one of the few times that Congress has asserted directly its constitutional primacy over a Court that for the next seventy years took upon itself more and more the powers not only to review any and all acts of Congress but to make law itself, particularly when it came to preventing the regulation of corporations or denying rights to blacks. During the last forty years, although the Court has tended to stand aside on most economic matters and to intervene on racial ones, the Court’s record of self-aggrandizement has been equaled only by that of the Johnny-come-lately wild card, the president.
The first eighteen presidents adjusted themselves to their roomy constitutional cage and except for an occasional rattling of the bars (the Alien and Sedition Acts) and one break-out (the Louisiana Purchase) they were fairly docile prisoners of Article II. In 1860, the election of the sixteenth president caused the Union to collapse. By the time that Abraham Lincoln took office, the southern states had organized themselves into what they called a confederacy, in imitation of the original pre-Constitution republic. As Lincoln himself had declared in 1847, any state has the moral and, implicitly, every constitutional right to govern itself. But permissive Congressman Lincoln was not stern President Lincoln. Firmly he put to one side the Constitution. On his own authority, he levied troops and made war; took unappropriated money from the Treasury, and suspended habeas corpus. When the aged Chief Justice Taney hurled the Constitution at Lincoln’s head, the president ducked and said that, maybe, all things considered, Congress ought now to authorize him to do what he had already done, which Congress did.
Lincoln’s constitutional defense for what he had done rested upon the oath that he had sworn to “preserve, protect and defend the Constitution” as well as to see to it “that the law be faithfully executed.” Lincoln proved to be a satisfactory dictator; and the Union was preserved. But the balances within the constitution of the Second Republic had been forever altered. With the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments extending the vote to blacks (and, by 1920, to women and by 1970 to eighteen- to twenty-year-olds) while ensuring, yet again, that no state can “deprive any person of life, liberty, or property without the process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” the Bill of Rights was at last, officially at least, largely applicable to the people who lived in the states that were again united.
Needless to say, the Supreme Court, often witty if seldom wise, promptly interpreted the word “person” to mean not only a human being but a corporate entity as well. During the next fifty years, the Court continued to serve the propertied interests against any attack from the other branches of government while ignoring, as much as possible, the rights of actual persons. Any state that tried to curb through law the excesses of any corporation was sure to be reminded by the Court that it had no such right.
But the Third Republic had been born; the electorate had been expanded; and civil rights were on the books if not engraved in letters of fire upon the hearts of the judiciary. Although the presidents pretty much confined themselves to their constitutional duties, the memory of Lincoln was—and is—a constant stimulus to the ambitious chief magistrate who knows that once the nation is at war his powers are truly unlimited while the possibilities of personal glory are immeasurable.
At the turn of the century Theodore Roosevelt nicely arranged a war for his president, McKinley, who did not particularly want one. In 1917 Wilson arranged a war which neither Congress nor nation wanted. Since then the presidents have found foreign wars irresistible. With the surrender of Japan in 1945, the last official war ended. But the undeclared wars—or “police actions”—now began with a vengeance and our presidents are very much on the march. Through secret organizations like the CIA, they subvert foreign governments, organize invasions of countries they do not like, kill or try to kill foreign leaders while spying, illegally, on American citizens. The presidents have fought two major wars—in Korea and Vietnam—without any declaration of war on the part of Congress.
Finally, halfway through the executives’ war in Vietnam, the sluggish venal Congress became alarmed—not to mention hurt—at the way they had been disregarded by Johnson Augustus. The Senate Committee on Foreign Relations began to ask such questions as, by what inherent right does a president make war whenever he chooses? On March 8, 1966, the president (through a State Department memorandum) explained the facts of life to Congress: “since the Constitution was adopted there have been at least 125 instances in which the President has ordered the armed forces to take action or maintain positions abroad without obtaining prior Congressional authorization, starting with the ‘undeclared war’ with France (1798-1800)….” Congress surrendered as they had earlier when the inexorable Johnson used a murky happening in the Tonkin Bay to ensure their complaisance to his war. It was not until many thousands of deaths later that Congress voted to stop funds for bombing the Indochinese.
How did the president break out of his cage? The bars were loosened by Lincoln, and the jimmy that he used was the presidential oath, as prescribed by the Constitution: “I do solemnly swear that I will faithfully execute the Office of president of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.” Lincoln put the emphasis on the verb “defend” because he was faced with an armed insurrection. Later presidents, however, have zeroed in on the verb “execute”—as broad a verb, in this context, as any president on the loose could wish for. From this innocuous-seeming word have come the notions of inherent executive power and executive privilege, and that astonishing fact with which we have been obliged to live for half a century, the Executive Order.
Congress and Court can be bypassed by an executive order except on very odd occasions such as Truman’s unsuccessful seizure of the steel mills. When Wilson’s request to arm merchant American ships was filibustered to death by the Senate in 1917, Wilson issued an executive order, arming the ships. Later, still on his own, Wilson sent troops to Russia to support the czar; concluded the armistice of 1918; and introduced Jim Crow to Washington’s public places. In 1936 Franklin Roosevelt issued a secret executive order creating what was later to become, in the Second War, the OSS, and then in peacetime (sic) the CIA. This vast enterprise has never been even moderately responsive to the Congress that obediently funds it. The CIA is now the strong secret arm of the president and no president is about to give it up.
For all practical purposes the Third Republic is now at an end. The president is a dictator who can only be replaced either in the quadrennial election by a clone or through his own incompetency, like Richard Nixon whose neurosis it was to shoot himself publicly and repeatedly in, as they say, the foot. Had Nixon not been helicoptered out of the White House, men in white would have taken him away. The fact that we are living in an era of one-term presidents does not lessen, in any way, the formidable powers of the executive.
The true history of the executive order has yet to be written. As of December 31, 1975, the presidents had issued 11,893 executive orders. The Constitution makes no allowances for them. In fact, when an order wages war or spends money, it is unconstitutional. But precedents can always, tortuously, be found for the president to “execute his office.” In 1793, Washington proclaimed that the United States was neutral in the war between England and France, in contravention of the treaty of 1778 which obliged the United States to come to France’s aid. In 1905 the Senate declined to approve a treaty that Theodore Roosevelt wanted to make with Santo Domingo. Ever brisk and pugnacious, TR made an agreement on his own; and a year later the Senate ratified it. In 1940 Franklin Roosevelt gave England fifty destroyers that were not his to give. But three years earlier, the Supreme Court had validated the principle of the executive agreement (US v. Belmont); as a result, the executive agreement and the executive order are now for the usurper president what judicial review has been for the usurper Court.
Law by presidential decree is an established fact. But, as Lundberg notes, it is odd that there has been no effective challenge by Congress to this usurpation of its powers by the executive. Lundberg quotes the late professor Edward S. Corwin of Princeton, a constitutional scholar who found troubling the whole notion of government by decree: “It would be more accordant,” wrote Corwin in Court Over Constitution,2 “with American ideas of government by law to require, before a purely executive agreement to be applied in the field of private rights, that it be supplemented by a sanctioning act of Congress. And that Congress, which can repeal any treaty as ‘law of the land or authorization’ can do the same to executive agreements would seem to be obvious.” Obvious—but ignored by a Congress more concerned with the division of the contents of the pork barrel than with the defense of its own powers.
Between a president ruling by decrees, some secret and some not, and a Court making policy through its peculiar powers of judicial review, the Congress has ceased to be of much consequence. Although a number of efforts were made in the Congress during the Fifties to put the president back in his cage and to deflect the Court from its policy-making binges, nothing substantive was passed by a Congress which, according to Lundberg, “is no more anxious to restrict the president than it is to restrict the Supreme Court. Congress prefers to leave them both with a free hand, reserving the right at all times to blame them if such a tactic fits the mood of the electorate.” When Congress rejected Carter’s energy program, it was not blocking a president who might well have got around it with an executive order. Congress was simply ducking responsibility for a gasoline tax just as the president had ducked it by maliciously including them in the process. Actually, Congress does, from time to time, discipline presidents, but it tends to avoid collisions with the principle of the executive order when wielded by the lonely Oval One. So does the Supreme Court. Although the Court did stop President Truman from seizing the steel mills in the course of the Korean (by executive order) War, the Court did not challenge the principle of the executive order per se.
Since the main task of government is the collection of money through taxes and its distribution through appropriations, the blood of the Third Republic is the money-labor of a population which pays taxes to support an executive establishment of some ten million people if one includes the armed forces. This is quite a power base, as it includes the Pentagon and the CIA—forever at war, covertly or overtly, with monolithic communism. “Justice is the end of government,” wrote Madison (Federalist Paper No. 52). “It is the end of civil society. It ever has been and ever will be pursued until it is obtained, or until liberty be lost in the pursuit.” Time to start again the hard pursuit.
It was the wisdom of Julius Caesar and his heir Octavian to keep intact the ancient institutions of the Roman republic while changing entirely the actual system of government. The new dynasty reigned as traditional consuls, not as kings. They visited regularly their peers in the Senate—in J.C.’s case once too often. This respect for familiar forms should be borne in mind when We the People attend the second constitutional convention. President, Senate, House of Representatives must be kept as familiar entities just as their actual functions must be entirely altered.
Thomas Jefferson thought that there should be a constitutional convention at least once a generation because “laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him as a boy, as a civilized society to remain ever under the regimen of their barbarous ancestors.” Jefferson would be amazed to see how the boy’s jacket of his day has now become the middle-aged man’s straitjacket of ours. The amended Constitution of today is roomier than it was, and takes into account the national paunch; but there is little freedom to move the arms because, in Herder’s words, “The State is happiness for a group” and no state has ever, willingly, spread that happiness beyond the group which controls it. The so-called “iron law of oligarchy,” noted by James Madison, has always obtained in the United States.
Ten years ago Rexford Guy Tugwell, the old New Dealer, came up with Version XXXVII of a constitution that he had been working on for some years at the Center for the Study of Democratic Institutions at Santa Barbara. Tugwell promptly makes the mistake that Julius Caesar and family did not make. Tugwell changes names, adds new entities. Yet the old unwieldly tripartite system is not really challenged and the result is pretty conventional at heart because “I believe,” said Tugwell, explaining his new arrangements, “in the two-party system.” One wonders why.
The Framers wanted no political parties—or factions. It was their view that all right-minded men of property would think pretty much alike on matters pertaining to property. To an extent, this was—and is—true. Trilateral Commissions exist as shorthand symbols of this meeting of minds and purses. But men are hungry for political office (Lincoln felt that if the United States was ever destroyed it would be by the hordes of people who wanted to be office-holders and to live for nothing at government expense—a vice, he added drily, “from which I myself am not free”).
By 1800 there were two political parties, each controlled by a faction of the regnant oligarchy. Today, despite close to two centuries of insurrections and foreign wars, of depressions and the usurpations by this or that branch of government of powers not accorded, there are still two political parties, each controlled by a faction of the regnant oligarchy. The fact that the country is so much larger than it was makes for an appearance of variety. But the substance of the two-party system or nonsystem is unchanged. Those with large amounts of property control the parties which control the state which takes through taxes the people’s money and gives a certain amount of it back in order to keep docile the populace while reserving a sizable part of tax revenue for the oligarchy’s use in the form of “purchases” for the defense department, which is the unnumbered, as it were, bank account of the rulers.
As Walter Dean Burnham puts it, “The state is primarily in business to promote capital accumulation and to maintain social harmony and legitimacy.” But expensive and pointless wars combined with an emphasis on the consumption of goods at the expense of capital creation has called into question the legitimacy of the oligarchy’s government. Even the dullest consumer has got the point that no matter how he casts his vote for president or for Congress, his interests will never be represented because the oligarchy serves only itself. It should be noted that this monomania can lead to anomalies. In order to buy domestic tranquillity, Treasury money in the form of transfer-payments to the plebes now accounts for some 79 percent of the budget—which cannot, by law, be cut back.
In the 1976 presidential election 45.6 percent of those qualified to vote did not vote. According to Burnham, of those who did vote, 48.5 percent were blue collar and service workers. Of those who did not vote, 75 percent were blue collar and service workers. The pattern is plain. Nearly 70 percent of the entire electorate are blue collar and service workers. Since only 20 percent of this class are unionized natural interest requires that many of these workers belong together in one party. But as 49 percent of the electorate didn’t vote in 1980, the “two-party system” is more than ever meaningless and there is no chance of a labor party—or of any party other than that of the status quo.
The regnant minority is genuinely terrified of a new constitutional convention. They are happier with the way things are, with half the electorate permanently turned off and the other half mildly diverted by presidential elections in which, despite a semblance of activity, there is no serious choice. For the last two centuries the debate has been going on as to whether or not the people can be trusted to govern themselves. Like most debates, this one has been so formulated that significant alternative ideas are excluded at the start. “There are nations,” said Herzen, “but not states.” He saw the nation-state as, essentially, an evil—and so it has proved most of the time in most places during this epoch (now ending) of nation-states which can be said to have started, in its current irritable megalomaniacal form, with Bismarck in Germany and Lincoln in the United States.
James Madison’s oligarchy, by its very nature, cannot and will not share power. We are often reminded that some 25 percent of the population are comprised of (in Lundberg’s words) “the superannuated, the unskilled, the immature of all ages, the illiterate, the improvident propagators, the mentally below par or disordered” as well as “another 25 percent only somewhat better positioned and liable at any turn or whirligig of circumstance to find themselves in the lower category.” As Herzen, in an unhappy mood, wrote, “Who that respects the truth would ask the opinion of the first man he meets? Suppose Columbus or Copernicus had put to the vote the existence of America or the movement of the earth?” Or as a successful movie executive, in a happy mood, once put it: “When the American public walks, its knuckles graze the ground.”
The constant search for external enemies by the oligarchy is standard stuff. All dictators and ruling groups indulge in this sort of thing, reflecting Machiavelli’s wisdom that the surest way to maintain one’s power over the people is to keep them poor and on a wartime footing. We fought in Vietnam to contain China, which is now our Mao-less friend; today we must have a showdown with Russia, in order to…. One has already forgotten the basis for the present quarrel. No. Arms race. That’s it. They are outstripping us in warheads, or something. On and on the propaganda grinds its dismal whine. Second to none. Better to die in Afghanistan than Laguna. We must not lose the will….
There are signs that the American people are beginning to tire of all of this. They are also angry at the way that their money is taken from them and wasted on armaments—although they have been sufficiently conned into thinking that armaments are as good as loafers on welfare and bureaucrats on the Treasury teat are bad. Even so, they believe that too much is being taken away from them; and that too little ever comes back.
Since Lundberg began his career as an economist, it is useful to quote him at length on how the oligarchy operates the economy—acting in strict accordance with the letter if not the spirit of the three constitutions.
The main decision that Congress and the President make that is of steady effect on the citizenry concerns appropriations—that is, how much is to be spent up to and beyond a half-trillion dollars and what for. The proceeds are supposed to come from taxes but here, in response to citizen sensitivity, the government tends to understate the cost. Because the government has taken to spending more than it takes in, the result is inflation—a steady rise in the prices of goods and services.
The difference between what it spends and what it takes in the government makes up by deviously operating the money-printing machine, so that the quantity of money in circulation exceeds the quantity of goods and services. Prices therefore tend to rise and money and money-values held by citizens decline in purchasing value….
All that the government has been doing in these respects is strictly constitutional. For the constitution empowers it, first, to lay taxes without limit (Article I, Section 8, Paragraph 1). It is empowered in the very next paragraph to borrow money on the credit of the United States—that is, the taxpayers—also without limit…. As to inflation, Paragraph 5 empowers the government, through Congress and the President, not only to coin money but to “regulate the value thereof.” In other words, under the Constitution a dollar is worth whatever Congress and the President determines it to be by their fiscal decisions, and for nearly three decades officials, Republican and Democratic alike, have decreed that it be worth less….
When Congress and president over-appropriate, the Treasury simply prints
…short-term notes and bonds and sends these over to the Federal Reserve Bank, the nation’s central bank. In receipt of these securities, the Federal Reserve simply credits the Treasury with a deposit for the total amount. The Treasury draws checks against these deposits. And these checks are new money. Or the Treasury may simply offer the securities for sale in the open market, receiving therefore the checks of buyers.
Since there is no legal way to control either president or Congress under the current system, it is inevitable that there would be a movement for radical reform. The National Taxpayers Union was organized to force the federal government to maintain a balanced budget. In order to accomplish this, it will be necessary to change the Constitution. So the National Taxpayers Union has called for a new constitutional convention. To date, thirty state legislatures have said yes to that call. When thirty-four state legislatures ask for a new convention, there will be one. As Professor Gerald Gunther of Stanford Law School recently wrote:
The convention delegates would gather after popular elections—elections where the platforms and debates would be outside congressional control, where interest groups would seek to raise issues other than the budget, and where some successful candidates would no doubt respond to those pressures. Those convention delegates could claim to be legitimate representatives of the people. And they could make a plausible—and I believe correct—argument that a convention is entitled to set its own agenda….3
Those who fear that Milton Friedman’s cheerful visage will be swiftly hewn from Dakota rock underestimate the passion of the majority not to be unemployed in a country where the gap between rich and poor is, after France, the greatest in the Western world. Since the welfare system is the price that the white majority pays in order to exclude the black minority from the general society, entirely new social arrangements will have to be made if that system is to be significantly altered.
Predictably, the oligarchs and their academic advisers view with alarm any radical change. The Bill of Rights will be torn to shreds, they tell us. Abortion will be forbidden by the Constitution while prayers will make resonant the classrooms of the Most Christian Republic. The oligarchs think that the people are both dangerous and stupid. Their point is moot. But we do know that the oligarchs are a good deal more dangerous to the polity than the people at large. Predictions that civil rights would have a rocky time at a new convention ignore the reality that the conglomeration of groups attending it will each have residual ethnic, ideological, religious, and local interests whose expression they will not want stifled. It is by no means clear that civil liberties would be submerged at a new convention; and there is no reason the delegates should not decide that a Supreme Court of some sort should continue to act as protector of the Bill of Rights—a better protector, perhaps, than the court that recently separated Snepp from his royalties.
The forms of the first three republics should be retained. But the presidency should be severely limited in authority, and shorn of the executive order and the executive agreement. The House of Representatives should be made not only more representative but whoever can control a majority will be the actual chief of government, governing through a cabinet chosen from the House. This might render it possible for the United States to have, for the first time in two centuries, real political parties. Since the parliamentary system works reasonably well in the other industrially developed democracies there is no reason why it should not work for us. Certainly our present system does not work, as the late election demonstrated.
Under a pure parliamentary system the Supreme Court must be entirely subservient to the law of the land which is made by the House of Representatives; and judicial review by the Court must join the executive order on the junk-heap of history. But any parliamentary system that emerged from a new constitutional convention would inevitably be a patchwork affair in which a special niche could, and no doubt would, be made for a body to protect and enforce the old Bill of Rights. The Senate should be kept as a home for wise men, much like England’s House of life-Lords. One of the Senate’s duties might be to study the laws of the House of Representatives with an eye to their constitutionality, not to mention rationality. There should be, at regular intervals, national referenda on important subjects. The Swiss federal system provides some interesting ideas; certainly their cantonal system might well be an answer to some of our vexing problems—particularly, the delicate matter of bilingualism.
The First Constitution will be two hundred years old in 1987—as good a date as any to finish the work of the second constitutional convention which will make possible our Fourth Republic, and first—ah, the note of optimism!—civilization.
February 5, 1981