The Duplicitous U.S. Constitution: How an autocratic legal document became a sacred and incontestable scroll

by Tim Scott

Also published at Dissident Voice

Civil government, so far as it is instituted for the security of property, is in reality instituted for the defense of the rich against the poor, or of those who have some property against those who have none at all — Adam Smith, The Wealth of Nations

We live in a nation founded within a prevailing story line that characterizes the United States as being an exceptional, enlightened and charitable nation. A nation that is a “beacon of light…in every corner of the globe,” generated by the ethos of the American Dream, based on the values and ideals of liberty, justice, fairness, equality and democracy for all.

We also live in a nation that was established to be an empire, whereby imperialism and settler colonialism are endlessly justified and promulgated by an underlying cultural narrative which ascribes whiteness to morality, and by extension a nation bestowed with a divine right to lay claim—at will—to the lands, resources and bodies of Black, Brown and Indigenous people. A nation where private property rights are akin to natural rights, therefore framing capitalism, no matter how brutal, with benevolent intent and thus inviolable. These structural foundations, which are rooted within the barbarism of chattel slavery and the brutality of gender oppression, constructed an enduring national culture defined by genocide, dispossession, white supremacy, anti-blackness, heteropatriarchy, misogyny, social inequity and wealth inequality. Over three centuries later, despite significant efforts by resistance movements to transform it, this underlying national culture persists; entwined within an era where mass surveillance, mass incarceration, unprecedented wealth inequality and unending militarism are perversely justified as imperatives to preserve freedom, democracy and the mythical “American Dream.”

The contradictions between the nation’s mythologies and actual practices are inherent to—and effectively serve to preserve—the cultural, political and economic foundations of the United States. They are indicative of a nation that was founded by an opulent minority of white men who believed that they alone had a God-given right to freedom and prosperity and thus constructed the structural means to protect their wealth and power from a dispossessed demos and to justify the subjugation and exploitation of entire groups of people. Their design for the new nation was based on what economist Joseph Stiglitz refers to as the “interplay between ideologies and particular interests.” As such, the white supremacist and patriarchal ideologies of the wealthy, slave-owning Christian men who founded the nation were fused with free market ideology, the engine for the emerging interests of industrial capitalism. Within this design and from the outset, the founders intended for government to serve as the executor of these violent and undemocratic ideologies and interests.

As many political, legal, and history scholars have acknowledged, the U.S. Constitution was constructed to be an ideological and legal document intended to secure the interests of the virtuous and enlightened gentry who—like royalty—considered themselves to be ordained with a natural right to rule the nation in perpetuity. The founders’ declarations and ensuing constitution promoted an overriding myth or “origin story” that defined the new nation as a unified whole, engaging in a virtuous republican mission whereby, according to John Adams, “all men, rich and poor, magistrates and subjects, officers and people, masters and servants, the first citizen and the last, are equally subject to the laws.” Democracy was therefore (falsely) equated with the ideology of republicanism, whereby the nation’s citizenry was promised equal rights under the law and the inalienable rights to liberty. It is within this context that individual sovereignty and private property were intended to be protected, according to John Adams, from the “tyranny of the majority” (i.e., the “mob rule” of a direct democracy).

In effect, the founders constructed the intersecting cultural, political and economic instruments that would permanently advance the interests of a wealthy white minority through institutionalized and impervious methods of domination and extermination. Thus, the origin story generated by the Declaration of Independence that “all men are created equal” and have “inalienable rights” to “life, liberty and the pursuit of happiness” were never intended to be all inclusive. This also holds true to Preamble of the U.S. Constitution, which states:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Instead, the civil and political rights within the U.S. Constitution were restricted to focus exclusively on individual and property rights—for some. This design sought to undermine the possibility for the establishment of universal and equal participation in all spheres of life (participatory parity), not only between the ruling elite, their agents and those they subjugated, but more importantly amongst and between subjugated groups. Thus, complex interdependencies, chains of democratic equivalences, meaningful deliberative processes and solidarities that could threaten the power of the ruling elite were intentionally defused. The founders’ discourse and origin story myths were intended to serve as empty signifiers, having very different meanings and values with regard to who they apply to and how they were to be operationalized. Thus, the discourse of republicanism was ascribed with the interests of the nation’s white male Christian aristocracy and to a lesser degree to their citizen agents who occupied the white middle-class. However, the narrative of life, liberty and equality was never intended to pertain to everyone else.

During the nation’s infancy, when disorder and uncertainty were widespread, the founders’ myths served to define in totality a positive and fully sutured national identity, establishing a foundation for social practices and ideological representations that were instrumental in the social construction of reality and subjectivity for the nation’s white citizen subjects. This set forth a process whereby socialization and identity formation were based on the ideological shaping of a cultural imaginary, constituted through what political theorist Chantel Mouffe referred to as the logic of equivalence, which is “to create specific forms of unity among different interests by relating them to a common project and by establishing a frontier to define the forces to be opposed, the ‘enemy.’” Initially this “common enemy” was the tyranny of the British monarchy, and subsequently took many forms—the tyranny of majority rule, the threat of the “savage Indian,” the emancipation of slaves, Blackness, Mexicans, recognition rights for women and notions of equity and equality in general. Over time and as the empire expanded, the enemy would include any group—or any idea—that posed a threat to the nation’s prevailing power structures.

Despotic ideologies such as this reject the historical conditions by which social relations are constructed, instead representing them as outside of history, as inevitable and natural, while disguising their underlying belief systems as common sense facts. According to Anne Makus, presenting events and practices as ahistorical truths allows problematic events to be framed as unproblematic and a “natural” consequence of society. By losing their postulational status, beliefs are transformed into narrative truths that are immune to differing accounts of events.

Ultimately, the ideological function of the founders’ origin story myths, cultural imaginaries and their corresponding discourse or “narrative truths” resulted in a what Cultural theorist Raymond Williams describes as a “complex interlocking of political, social and cultural forces” known as hegemony.

A Revolution for “Great and Overgrown Rich Men”

Historian Gary B. Nash documented how, for over a century prior to the American Revolution, an elite class of white male landowners, slaveholders and large-scale merchants dominated the political, economic and cultural landscape of the thirteen British settler colonies. In 1770, Boston’s top 1% of the population owned 44% city’s wealth. In the late 17th century the wealthiest 10% of all colonists owned approximately 47% of all the wealth; and by 1775 the wealthiest 10% owned roughly 65% of all the wealth. During the 18th century approximately 30% of all British colonists were free white men, with about 50% of those men owning land, though most of them did not own enough land to be considered wealthy. Approximately 20% of all colonists were Black slaves, and 50% were poor white indentured servants.

At the outset, the privatization of land in the British settler colonies occurred through the genocidal project that is settler colonialism and later through the transfer or privatization of state (“public”) land. According to historian Meyer Weinberg and economists Engerman & Gallman, seized land was often awarded to individuals and families based on their location to power and influence within seats of government and became the basis for commercial pursuits and further accumulation of private wealth. Increasingly during the 18th century, land acquisition and allocation was sold for profit and speculation.

As documented by historian Howard Zinn, the leaders of the Sons of Liberty, the first and second Continental Congress and Continental Army Officers primarily came from the landed gentry of British settler colonial society. With high unemployment and hunger fueling class upheaval following the French and Indian War (1754-1763), aristocratic colonial leaders faced the prospect of waging war against Britain, while also “maintaining control over” the discontented “crowds at home.” During the delegates elections for a convention to frame a Pennsylvania constitution in 1776, a Committee of Privates (composed of white working class enlisted militiamen), “urged voters to oppose ‘great and overgrown rich men” for “they will be too apt to be framing distinctions in society.” According to historians Young, Raphael and Nash, these sentiments led the Committee of Privates to draw up a bill of rights for the convention stating, “an enormous proportion of property vested in a few individuals is dangerous to the rights, and destructive of the common happiness, of mankind; and therefore every free state hath a right by its laws to discourage the possession of such property.”

According to Zinn, the populist discourse of the Declaration of Independence, which declared the right to “popular control over governments, the right of rebellion and revolution, indignation at political tyranny, economic burdens, and military attacks,” proved to unite large enough numbers of white settler colonists to actively rebel against Britain. This propaganda-based document was highly effective in shaping popular opinion by appealing to the yearnings of disenfranchised white settler colonists as a means to unite against a common enemy. Of course, large populations were left out of the populist cause elicited by the Declaration of Independence; namely Black slaves, Native people and in many regards white women. This reality would only become further institutionalized following the War of Independence. It would also turn out that the aristocratic founders were indeed “apt to be framing [class] distinctions in society” as many white working class militiamen had feared.

As Historian Gordon S. Wood explained, in 1776, immediately after issuing the Declaration of Independence from Great Britain, a committee of the Second Continental Congress was charged with drafting the first U.S. Constitution known as the Articles of Confederation and Perpetual Union. It was signed by Congress in 1777 and ratified by representatives from all thirteen states in 1781. The Articles established the U.S. to be a confederation of sovereign states, with appointed representatives from the thirteen states making up a national government. Under the Articles the national government was composed of a legislature consisting of one house in which states had equal voting power. There was not an executive branch or a general judiciary. This new national government was charged with overseeing domestic relations with Native tribes, international diplomacy and conducting the war with Britain.

According to Charles A. Beard, at the end of the War of Independence in 1783, establishing a cohesive economy and infrastructure overseen by common laws proved to be difficult under the decentralized system of government outlined by the Articles of Confederation. This was especially challenging during a time of economic instability due to immense war debt. Congress lacked the authority to tax and collect debt directly, to stabilize legal tender and regulate commerce since state legislatures were often unresponsive to these demands, operating without legal restrictions or judicial oversight.

For many former colonial noblemen known as Federalists—who made up a majority in most state legislatures and the Continental Congress—the Articles of Confederation were failing to secure the protection and advancement of their personalty or personal property (movable assets). Many southern plantation owners were also Federalists since their wealth was also largely held in personal property (including slaves) and therefore tied to the same economic interests as northern merchants and financiers. According to Beard, this aristocratic class of large-scale farm owners, merchants, shippers, bankers, speculators, and private and public securities holders believed that a more powerful federal government was required to protect their economic interests.

A minority coalition within the Continental Congress whose economic interests were primarily tied to real (landed) property were known as Anti-federalists. This group of white wealthy male freeholders, small business owners and middle-class, tenant and debtor settler farmers equated concentrated federal power with British rule and therefore preferred a weak central government that would not “tread” on individual rights and state sovereignty.

A Constitution for “The Minority of the Opulent”

As Michael Cain and Keith Dougherty documented, the eruption of Shay’s Rebellion in 1786 only strengthened the Federalist cause. This indebted settler farmer rebellion against the state of Massachusetts was fueled by high taxes and farm foreclosures in western Massachusetts, a mounting crisis that was sweeping across the new republic. Noah Brooks chronicled how General Henry Knox, a major public securities holder, wrote to George Washington in response to this “desperate debtor” rebellion of farmers, laborers and Revolutionary War veterans:

The people who are the insurgents have never paid any, or but very little taxes – But they see the weakness of government; They feel at once their own poverty, compared with the opulent, and their own force, and they are determined to make use of the latter, in order to remedy the former. Their creed is ‘That the property of the United States has been protected from the confiscations of Britain by the joint exertions of all, and therefore ought to be the common property of all. And he that attempts opposition to this creed is an enemy to equity and for justice, and ought to be swept from off the face of the earth.’ In a word they are determined to annihilate all debts public and private and have agrarian Laws, which are easily effected by means of un-funded paper money which shall be a tender in all cases whatever.

As Beard explained “the southern planter was also as much concerned in maintaining order against slave revolts as the creditor in Massachusetts was concerned in putting down Shays’ ‘desperate debtors.’” This proved to be a precarious time for the new nation’s elite, which was exalting the virtues of freedom, liberty and democracy while simultaneously taking action to establish new and improved systems of domination. Insurrection was indeed a clear and present danger to the post-war aristocracy within this decentralized and tumultuous landscape.

In 1787 the Federalists in Congress called on state legislatures to send delegates to a Convention in Philadelphia for a single and stated purpose of revising the Articles of Confederation. Members of Congress quietly went to Philadelphia, with a majority of them intent on constructing a federal government powerful enough to protect their class interests. The first order of business, according to Gerald J. Fresia and Robert W. Hoffert, was for the convention delegates to agree to a secrecy clause concerning their decision-making deliberations. As reported by Beard, the delegates were not only acting to protect their personalty interests from foreign competitors, but as importantly, against the threat the domestic unpropertied masses posed to their wealth and power.

James Madison receives endless accolades for his enlightened roles in the founding of the United States, including the title of “Father of the Constitution.” Like most of the founding fathers, Madison was explicit in his undemocratic aims for the new nation. As documented by Steve Coffman, during the construction of the U.S. Constitution, when deliberating over two of the pillars of a substantive democracy—universal suffrage and the equal distribution of resources— Madison argued, “if elections were open to all classes of people, the property of the landed proprietors would be insecure,” and “agrarian law would soon take place,” one that distributes land to the landless. Therefore, according to Coffman, Madison argued, “our government ought to secure the permanent interests of the country” through the protection of property rights. More explicitly, Madison went on to pronounce, “Landholders ought to have a share in the government, to support these invaluable interests” thus making the charge of government “to protect the minority of the opulent against the majority.”

According to the Yale University political theorist Robert A. Dahl and author Daniel Lazare, under the terms of the Articles of Confederation, which was the law of the land during the Philadelphia Convention, the 1787 Constitution was, in fact, an illegal usurping. The Articles were clear in stipulating that there had to be unanimous approval of all thirteen states to approve constitutional change. Yet those who attended the Philadelphia convention unilaterally changed the ratification rule to nine states, which was by no coincidence the number of states that initially ratified the Constitution of 1787. This strategic and unconstitutional move on the part of the Federalists in Congress was an attempt to work around the significant opposition from Anti-federalists. Lazare went on to claim, “the assertion that ‘We the People do ordain and establish this Constitution for the United States of America’ implies a right not only to create new frames of government but to abrogate old ones when they are no longer serving their purposes.”

Dahl and Beard point out that when it came to choosing delegates for the Philadelphia Convention, a large body of aristocrats were selected by state legislatures that were elected according to suffrage laws requiring “high property qualifications” relating to taxpayer status aligned with the amount or worth of one’s real property and/or personalty holdings. According to Beard, when delegates for the Convention were chosen, “representatives of personalty in the legislature were able by the sheer weight of their combined intelligence and economic power to secure delegates from the urban centres or allied with their interests.” Beard went on to explain, “Thus the heated popular discussion usually incident to such momentous political undertakings was largely avoided, an orderly and temperate procedure in the selection of delegates was rendered possible.” In essence, the majority of the new nation’s inhabitants and citizens were intentionally excluded from participating in the construction of the United States Constitution.

According to Coffman, when voting rights for citizens of the new nation were being decided, James Madison expressed his concern that if they were extended “equally to all…the rights of property or the claims of justice may be overruled by a majority without property.” John Jay, a Federalist “founding father” and a member of Congress who went on to become the first Chief Justice of the Supreme Court, is famous for making the intent of the Constitution even more explicit by boldly stating, “The people who own the country ought to govern it.” During deliberations on voting rights, James Madison expressed his belief that “freeholders of the country would be the safest depositors of republican liberty.” Within this context, Madison went on to caution his peers to consider the imminent rise of the industrial working-class and the threat they would pose to the nation’s “opulent” minority:

In future times a great majority of the people will not only be without landed, but any other sort of, property. These will either combine under the influence of their common situation: in which case, the rights of property & the public liberty, will not be secure in their hands.

Madison also expressed his concerns that if given suffrage rights, the ominous industrial masses could be coerced or bribed into doing the bidding of divergent ruling class political ambitions. As Madison put it, the unpropertied, “will become the tools of opulence & ambition.” Clearly one of Madison’s primary concerns was how the expansion of suffrage could undermine his desires to create a republican fiefdom.

Gouverneur Morris was an influential “founding father” and close ally of Madison who is often called the “Penman of the Constitution.” According to legal scholar Jennifer Nedelsky, Morris’s vision of the new nation was similar to his peers in that “public liberty” should not involve “direct participation in government.” Instead, according to Nedelsky, in Morris’s plan “the people… were not, in effect, to govern… they would choose their representatives and have the influence over them that frequent elections brought… [and] ‘in the course of things’ people would elect the great and wealthy as their representatives.”

An enthusiastic student of political economy, Morris was known for tirelessly working to ensure that the interconnected pillars of economic and political power of the new nation would be impermeable. In doing so, Morris envisioned and aggressively advocated for a market economy, one with a federal government that was constituted with the legal framework to ensure its permanency. Nedelsky went on to document how Morris was known for his “unqualified positions” that:

illuminate some of the most important and contested issues in American political thought: the status our Constitution accords… to private property, the relation between the values of republicanism and those of capitalism, and the distribution of economic and political power our system fosters.

While the Constitutional Convention’s secrecy clause conveniently provided cover for its authors’ anti-republican and anti-democratic intentions, Madison’s unapologetic and forthright style reveals how the Constitution was, in its own words, “a republican remedy for the diseases most incident to republican government.” Accordingly, Gordon S. Wood, explained, “the source of their difficulties came from too much local democracy, and that the solution was to limit this local democracy by erecting a more aristocratic structure over it.” The designers did allow for a semi-popular lower house of congress, yet counterbalanced with the advent of the U.S. Senate, which was to be elected by state legislatures with rotating terms of six years. The Senate should then be composed of, as Madison put it, “a portion of enlightened citizens whose limited number and firmness might seasonably interpose against impetuous councils.” According to Parenti, the founders often referenced the virtuous qualifications of “enlightened citizens” and “men of substance,” which served as code for those with the right race, gender, aristocratic breeding, wealth, education, and experience that bestowed one with a God given right to rule.

In all, seventy-four delegates were appointed by states to attend the Constitutional Convention while only fifty-five showed up, with many anti-federalists refusing to attend and a number leaving as it progressed, with others refusing to sign in protest. Rhode Island declined to send a delegate. Anti-federalists accused the Federalists of working to reproduce an order similar to the British Crown. In the end, this small group of opulent white men proceeded to draft the U.S, Constitution, which according to historian Gordon S. Wood, “was intrinsically an aristocratic document designed to check the democratic tendencies of the period.”

As documented by Wood, a number of Anti-Federalists agreed to ratify the U.S. Constitution only on condition that a bill of rights was included as a means to put limits on federal power. Federalists in Congress begrudgingly agreed, despite their opposition to the idea. Federalists were concerned that by making certain rights explicit “the people” would expect protections for those rights alone, thus limiting future interpretations of the Constitution. James Madison in particular felt that a declaration of such rights would be “parchment barriers” (superficial protections) and wanted to rely on the sturdier measures already in place. According to professor of political science Michael P Federici, by parchment barriers, Madison meant:

…the relationship between the written and unwritten constitutions. There are paper boundaries and limits, what the Framers called “parchment barriers”, and there are unwritten boundaries and limits that are not so much legal as they are cultural, ethical, and religious. The preservation of a constitutional order depends, to a great extent, on the preservation of the unwritten boundaries and limits.

From Madison’s perspective, the great protectors of the private rights of the opulent against an organized majority included the “extent of territory” spelled out in the Constitution which separated people geographically; along with the “multiplicity of interest” between the classes. To Madison these classes included, “those who are without property…those who are creditors, and those who are debtors… [a] landed interest, a manufacturing interest, a mercantile interest, a moneyed interest…actuated by different sentiments and views.” According to Madison:

If a majority be united by a common interest, the rights of the minority will be insecure…the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

Always the brilliant political operative, Madison took on the task of drafting a bill of rights with the belief that the disorderly demand for such rights was on the one hand a grave problem, yet also presented an opportunity for a strategic solution. His proposed amendments were jubilantly ratified in 1791, effectively thwarting Anti-Federalist efforts to alter the Constitution while successful garnering loyalty for the Constitution from “the great mass of the people.” According to the U.S. Constitutional scholar Robert A. Goldwin, by engendering a sturdy “national sentiment” in support of the Constitution, Madison:

…took the decisive step toward establishing an independent force in the society, a devotion to the Constitution powerful enough to restrain a malevolent majority. Madison saw that the proposed amendments could make the Constitution universally revered…he saw the Constitution itself, not the amendments, as the sturdy barrier to fend off majority oppression and defend private rights. A bill of rights added to the intact Constitution would bring to it the only thing it presently lacked – the support of the whole people.

Madison not only outwitted the Anti-Federalists, but more ominously, he constructed a highly effective hegemonic instrument whereby the Bill of Rights would be widely considered as a sacred and uncontestable scroll embodying the epic virtues of U.S. democracy.

A Government “Over the People”

According to Goldwin and Kaufman and Blau and Moncada at its core, the U.S. Constitution outlines all the things the federal government cannot do, known as negative rights. Paul Finkelman describes the difference between negative and positive rights as being “freedom from” versus “freedom to.” According to Charles Fried, “a negative right is a right that something not be done to one, that some particular imposition be withheld.”

Simply, the founders encoded negative rights into the U.S. Constitution to ensure that government would protect the property rights bestowed upon “the minority of the opulent” by divine authority. In doing so, according to Cass Sunstein, negative rights bolster the ideology and rule of law of free-market capitalism. In terms of the founders’ Constitution, Sunstein interprets the intent of negative rights in important ways:

Most of the so-called negative rights require governmental assistance, not governmental abstinence. Consider, for example, the right to private property. As Bentham wrote, “Property and law are born and must die together. Before the laws, there was no property: take away the laws, all property ceases.” As we know and live it, private property is both created and protected by law; it requires extensive governmental assistance. The same point holds for the other foundation of a market economy, the close sibling of private property: freedom of contract. For that form of freedom to exist, it is extremely important to have reliable enforcement mechanisms in the form of civil courts.

Cornell professor of law Laura Underkuffler also emphasized in 2003 that the “idea of the Constitution as a charter of negative rights – and of the right to the protection of property as simply one of those rights – is an entrenched feature of American political and legal discourse.” New Jersey Deputy Attorney General Gezim Bajrami confirmed in 2013, “Time and time again, the U.S. Supreme Court has ruled that the government has no affirmative constitutional obligations to the public.”

According to Finkleman, positive rights necessitate “affirmative obligations on the part of government to fulfill the right.” Therefore, positive rights enable a nation-state’s constitution to guarantee a political economy that prioritizes egalitarianism in the social, political, cultural, economic and environmental realms. Positive rights enable government to proactively intervene to ensure universal and equitable access to a living income, housing, holistic education, health care, nutritious food, clean water and a healthy and sustainable environment. Positive rights can empower (not hinder) government to forcefully protect individuals and groups of people from forms of domination and targeted violence. As CeÂcile Fabre emphasizes, a nation-state constituted by positive rights would need to guarantee “that a democratic majority should not be able to repeal these rights and that certain institutions, such as the judiciary, should be given the power to strike down laws passed by the legislature that are in breach of those rights.”

Instead, the founders constructed the U.S. Constitution to forever deter emancipatory strivings and collective interests that are inherent to egalitarian societies.

The Bill of Rights only reinforced negative rights based prohibitions on Congress concerning intervention in the press, speech, religion, assembly, bearing of arms, etc. By doing so, these purported “civil liberties” fortify the Constitution’s undemocratic foundations and its primary function of harnessing the majoritarian menace to further buttress, both legally and ideologically, the primacy of property rights. As Judge Richard Posner of the United States Court of Appeals stressed in 1983, “the Constitution is a charter of negative rather than positive liberties… The men who wrote the Bill of Rights were not concerned that Government might do too little for the people but that it might do too much to them.”

According to Daniel Lazare, the Constitution and its Bill of Rights assign responsibility for civil liberties to the Supreme Court, essentially relieving the semi-elected branches of government, chiefly Congress “institutionally irresponsible” and civil liberties “de-politicized.” Lazare went on to explain:

Thus was born the peculiar rhythm of American politics in which politicians or the people at large go on periodic rampages in which they lynch, terrorize, and generally trample democratic rights until they are finally brought up short by the courts. Then everyone involved congratulates themselves that the system has worked, that the abuse has been corrected, that the majority has been reined in— until some new eruption sets the cycle going again.

Furthermore, the rights of speech, press, assembly, etc., are the means by which the commercial and propertied class instills their ideological, political, economic and social agenda via a free-marketplace of ideas; whereby access is determined by one’s wealth, race, gender, religion and influence. Not coincidentally, the Bill of Rights only applies to federal and state government action, not to the actions of private business and its agents. All in all, “the commons” became the property of the opulent.

According to Michael Parenti, the U.S. Constitution created a form of government and a political system that prevented “the people” from finding horizontal cohesion and instead “was designed to dilute their vertical force, blunting its upward thrust upon government by interjecting indirect and staggered forms of representation.” To do so, according to historian Morton White, a system of checks was constructed to safeguard against Madison’s expressed fears of “agrarian attempts” and “symptoms of a leveling spirit” by “the proportion of those who will labor under all the hardships of life, and secretly sigh for a more equal distribution of its blessings.”

The Autocratic First Amendment

The First Amendment of the U.S. Constitution is widely heralded as the foundational gem of the Bill of Rights and the unambiguous signifier of “American Freedom and Democracy” It reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

However, it can also be regarded as one of the most duplicitous instruments of U.S. hegemony.

In 1799, Supreme Court Chief Justice Oliver Ellsworth made it clear that based on English common law, “this country remains the same as it was before the Revolution.” Eight years earlier, with this understanding, the founders applied English common-law when drafting the First Amendment, specifically in terms of the doctrine of “no prior restraint.”

In 1769 William Blackstone, the celebrated “compiler of English law” and major influence on the founding fathers, explained the doctrine of no prior restraint:

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity.

Thus, the First Amendment follows the directive of no prior restraint by prohibiting government from forbidding a “free man” from expressing the “sentiments he pleases before the public.” Yet, if the government determines such “sentiments” to be seditious libel after the fact, prosecution is permissible under the U.S. Constitution. As Howard Zinn put it, to this day the First Amendment under no prior restraint has an important caveat in that:

You can say whatever you want, print whatever you want. The government cannot stop you in advance. But once you speak or write it, if the government decides to make certain statements “illegal,” or to define them as “mischievous” or even just “improper,” you can be put in prison.

This little known yet significant twist on American freedom of expression not only criminalizes dissent after the fact, it also serves the purpose of having a powerful chilling effect in advance. Zinn goes on to explain how, “An ordinary person, unsophisticated in the law, might respond, ‘You say you won’t stop me from speaking my mind–no prior restraint. But if I know it will get me in trouble, and so remain silent, that is prior restraint.”

Yet, in the subsequent two centuries, the U.S. federal government (including the Supreme Court) has also successfully restricted freedom of expression in advance under the rationale of “national security,” most often relating to those who attempt to expose the nation’s nefarious covert and undemocratic activities around the globe. While the First Amendment is explicit in that “Congress shall make no law… abridging the freedom of speech,” just seven years after Congress passed the amendment, Congress turned around and did just that in 1798 with the Alien and Sedition Acts.

President John Adams and other Federalist leaders expedited the passage of the Alien and Sedition Acts under the rational that French and Irish revolutions would spark an egalitarian revolution at home, incited by French and Irish immigrant agitators and foreign spies. Feeding this narrative, a Federalist newspaper of the time claimed Jacobin (egalitarian) French tutors were attempting to corrupt America’s youth, “to make them imbibe, with their very milk, as it were, the poison of atheism and disaffection.” Long-time Massachusetts politician and Federalist Harrison Gray Otis declared in 1797 that he “did not wish to invite hordes of wild Irishmen, nor the turbulent and disorderly of all parts of the world, to come here with a view to disturb our tranquility, after having succeeded in the overthrow of their own governments” and landing in the U.S. “to cavil against the Government, and to pant after a more perfect state of society.”

The Alien Acts included “An Act Concerning Aliens” (enacted June 25, 1798, with a two-year expiration date) which authorized the president to deport any resident alien considered “dangerous to the peace and safety of the United States.” The Alien Acts also included “An Act Respecting Alien Enemies” (or Alien Enemies Act), which was enacted on July 6, 1798 (with no expiration date), authorizing the president to detain and deport resident aliens whose home countries were at war with the United States.

Enacted July 14, 1798, with an expiration date of March 3, 1801, the Sedition Act applied to U.S. citizens, authorizing the prosecution, imprisonment or large fine of any person who:

…shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government.

As Zinn pointed out, “the Sedition Act was a direct violation of the Constitution. But here we get our first clue to the inadequacy of words on [“parchment”] paper in ensuring the rights of citizens.”

The Alien Enemies Act of 1798 was revised and further codified by Congress with the passing of the Espionage Act of 1917. This reaffirmation of the duplicitous nature of the founders’ Constitution and governing structures was intended to stifle growing resistance against social conditions domestically and the expansion of U.S. imperialism, particularly on the eve of the U.S. entry into World War I. The Espionage Act of 1917 in part read:

Whoever, when the United States is at war, shall wilfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever when the United States is at war, shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or shall wilfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.

As a means to more effectively crush growing dissent domestically, in 1918 (after the U.S. entered WWI) the Sedition Act was passed as an amendment to the Espionage Act, further restricting free expression. It read in part:

Whoever, when the United States is at war… shall willfully make or convey false reports, or false statements… or incite insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct… the recruiting or enlistment service of the United States, or… shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States… or shall willfully display the flag of any foreign enemy, or shall willfully… urge, incite, or advocate any curtailment of production… or advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than 20 years, or both.

During World War I, federal prosecutors enacted the Espionage Act in over 2,000 cases. While no convictions resulted from charges of spying or sabotage, 1,055 convictions resulted from prohibitions on free speech under the Espionage and Sedition Acts, largely targeting labor leaders, civil rights activists, Black and leftist journalists and publishers, war critics, pacifists, anti-conscription activists, socialists, communists, anarchists and civil libertarians.

In 1919 the Supreme Court actively safeguarded the Espionage Act against constitutional challenges in Schenck v. United States. This case involved Charles T. Schenck, the secretary of the Socialist Party of America, who was convicted by a lower court under the Espionage Act after engaging in counter military recruitment activities by distributing leaflets that encouraged prospective military draftees to refuse military service. The first side of Schenck’s leaflet argued that the Conscription Act (the draft) violated the Thirteenth Amendment’s prohibition on involuntary servitude and was a “monstrous wrong against humanity in the interest of Wall Street’s chosen few.” It urged recipients to “petition for the repeal of the act” because the war was being spun by “cunning politicians and a mercenary capitalist press.” Schenck appealed his conviction to the Supreme Court, arguing that his First Amendment rights were violated. The Court ruled against Schenck, with Justice Oliver Wendell Holmes, Jr. stating:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic… The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Thus, the well-known legal rationale against “falsely shouting fire in a theatre” became a metaphor for the limits of free speech in America, namely serving as code against dissent that disrupts U.S. hegemony. Schenck went on to serve six months in a federal prison.

During the same period, the U.S. Supreme Court also upheld the conviction of labor leader and Socialist Party of America presidential candidate Eugene Debs, who was charged under the Espionage Act for making an anti-war speech in 1918. Debs was sentenced to ten years in prison. This was not the first time Debs had been imprisoned for his “un-American” activities, yet the Espionage Act served its purpose in making it easier to silence Debs (and other dissidents), hopefully once and for all.

The Supreme Court case of Stokes v. United States (1920) involved the prosecution of reproductive rights and labor activist Rose Pastor Stokes, who was given a ten year prison sentence for simply writing in a local newspaper, “No government which is for the profiteers can also be for the people, and I am for the people, while the government is for the profiteers.”

In 1917 Chandler Owen and A. Philip Randolph, the publishers of the Black political and literary magazine The Messenger, were arrested under the Espionage Act when they wrote:

Our claim is to appeal to reason, to lift our pens above the cringing demagogy of the times… Patriotism has no appeal to us; justice has. Party has no weight with us; principle has. Loyalty meaningless; it depends on what one is loyal to. Prayer is not one of our remedies; it depends on what one is praying for. We consider prayer as nothing more than a fervent wish; consequently, the merit and worth of a prayer depend upon what the fervent wish is.

Some Supreme Court decisions that reinforced the Espionage and Sedition Acts did not target radicals or dissidents. One such case involved the United States v. Nagler in 1918, which led to the conviction of the Assistant Secretary of State for the State of Wisconsin, Louis B. Nagler. Nagler was prosecuted after simply telling a group of YMCA or the Red Cross canvassers for the war effort who showed up at his office door, “I am through contributing to your private grafts. There is too much graft in these subscriptions. No, I do not believe in the work of the YMCA or the Red Cross, for I believe they are nothing but a bunch of grafters.”

In the case of the United States v. The Spirit of ’76, Robert Goldstein, the producer of the patriotic Revolutionary War movie The Spirit of ’76, was charged under the Espionage Act in 1917 for his film’s graphically unfavorable portrayal of Great Britain, which was America’s primary World War I ally. Federal prosecutors charged that Goldstein had deliberately made a pro-German movie to impugn America’s ally, incite disloyalty and obstruct military conscription. Goldstein who was Jewish (Anti-Semitism was rife in the U.S.) and of German descent, claimed that his intent in making the film was to make money and boost the patriotic mood of the country. He was given a ten-year prison sentence and fined $5,000.

The Sedition Act was repealed in 1921 while the Alien Enemies Act of 1798 and the Espionage Act of 1917 have endured into the 21st century. According to Emily Peterson, “The Espionage Act is so vague and poorly defined in its terms, that it’s hard to say exactly what it does and does not cover.”

Diluting the Impact of Popular Sentiments

The Constitution dictates that an Electoral College, not the general electorate or a majority of citizen voters, will choose the U.S. president. Within this undemocratic scheme, voters are actually casting a vote for presidential “electors” tied to the major elite political parties of each state, the numbers of which are based on the number of state Congressional seats. These electors are collectively known as the Electoral College. According to Article II of the Constitution, “Each state shall appoint, such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the state may be entitled in the Congress.” Translation: state legislatures, not citizens within a state, decide which presidential candidate will receive the state’s electoral votes. These appointed electors, who make up the anonymous Electoral College, are in essence political establishment insiders, who are subject to lobbying efforts, and in many states can roguely decide who they vote for, or if they will even vote at all. According to FairVote, for a presidential candidate to win an election within this system, one must receive over half of the Electoral College votes (in the 21st century, that would be 270 electoral votes out of the 538 national electors). The result is that presidential elections are largely symbolic exercises intended to keep the masses tied to the established order, where the democratic principle of one-person one-vote is prohibited.

As Dahl and Lazare point out, the U.S. Supreme Court was established to exist outside of any form of democratic deliberation and public scrutiny. Instead, imperious and impervious Supreme Court justices are appointed for life by a president and confirmed by a semi-aristocratic Senate (to this day), of which was chosen by state legislatures until 1913. The more popularly elected (yet also largely wealthy) House of Representatives were excluded from these deliberations. This leaves the Supreme Court—the least democratic branch of government—responsible for deciding if and how the rights of the masses are recognized and dispersed, while “elected” representatives stand idle. Accordingly Lazare notes, “rallying behind the Supreme Court” means “rallying behind the Constitution in toto” and “ignoring the constitutional system’s many unsavory aspects.”

The founders’ crafty and abstruse power-sharing arrangement made it difficult to determine where true authority lay, be it in Congress, the Presidency, the Supreme Court or the citizenry at the municipal, state or federal level. As Lazare put it, instead of having a form of government that would serve as “an instrument that ‘We the People’ would create and shape to further our own rule” the Constitution solidified a system of government intended to “create and shape the people in order to further its own rule.” Instead of being a government “of the people” it would be a government “over the people.” Parenti goes on to explain that in keeping with their desire to disenfranchise the majority, the founders included these “auxiliary precautions” that were “designed to fragment power without democratizing it.” Parenti goes on to explain:

In separating the executive, legislative, and judiciary functions and then providing a system of checks and balances among the various branches, including staggered elections, executive veto, Senate confirmation of appointments and ratification of treaties, and a bicameral legislature, they hoped to dilute the impact of popular sentiments. They also contrived an elaborate and difficult process for amending the Constitution.

Article 5 of the U.S. Constitution plays a crucial role in the founders’ undemocratic design by requiring a process whereby a proposed Constitutional amendment has to first pass a two-thirds majority in both the House and the Senate, or through a convention called by Congress based on a request from two-thirds of the states. If a proposed amendment successfully traverses its way through either pathway, it then has to be ratified by three-quarters of state legislatures. As University of Chicago Law School professor Eric Posner describes it, “Any proposal to amend the Constitution is idle because it’s effectively impossible… an amendment requires a supermajority twice—the pig must pass through two pythons.” Two hundred years later, after 11,539 proposed amendments, only 27 have been ratified. The 13th, 14th, and 15th amendments which expanded status rights to former slaves, passed only because the defeated and occupied South was strong-armed into ratifying them, yet as examined later, were not compelled to enforce them. Between 1870 and today only 12 amendments have been enacted, with the last one taking 203 years to be ratified. Posner goes to point out how this labyrinth has led to a reliance on begging the Supreme Court to interpret the Constitution in new ways by hiring “lawyers to formulate their proposals as already reflected in the Constitution rather than argue that the Constitution got the position wrong and so should be changed.” According to Gordon Wood, the very concept of democracy was hijacked and appropriated by the U.S. Constitution in that:

By the end of the debate over the Constitution, it was possible for the Federalists to describe the new national government, even with its indirectly elected president and Senate, as “a perfectly democratical form of government.” The houses of representatives lost their exclusive connection with the people. Representation was now identified simply with election; thus, all elected officials, and, for some, even those not elected, such as judges, were considered somehow “representative” of the people. Democracy rapidly became a generic label for all American government.

In addition to the undemocratic federal government, all 50 states would, in time, establish state constitutions modeled after the federal constitution (to varying degrees), with legislative and executive branches that are semi-popularly elected to develop and administer policies and laws; with state Supreme Courts that preside over legal appeals. State constitutions also establish mechanisms for local governance at the county, municipal or township level where voters popularly elect some variation of town or city managers and/or councils to make and administer local policies and ordinances. It is at the municipal level that the more direct forms of democracy were possible, at least for white men. The town meeting model, where all eligible voters meet to make local governance decisions and elect officials to implement their decisions, was a common form of local governance during the 18th and 19th centuries. State and municipal governments also have a sordid history concerning suffrage rights, often disenfranchising groups of people based on race, ethnicity, religion, class and gender.

The original Constitution left complete discretion to individual states in determining voter qualifications, rules on absentee voting, polling hours and election funding. In most states there is a lot of leeway given to counties in crafting their own ballots, designing and implementing their own voter education programs, deciding how they will handle overseas ballots, the ability to hire and train poll workers, choosing polling locations and in how to maintain their voter registration lists.

Over time (between 1870 to 1972), with the enactment of the 14th, 15th, 19th23rd, 24th and 26th Constitutional Amendments, various forms of legal discrimination were explicitly prohibited when establishing qualifications for suffrage. It is still legally permissible for states to deny the “right to vote” for other reasons and many have effectively done so as a means to continue to disenfranchise groups of people based on race, ethnicity and class. The 17th Amendment, which enabled U.S. Senators to be directly elected, did not result from popular democratic strivings. Instead, it resulted from pundit and legislator frustrations over corruption, instability, conflict and deadlock due to the indirect process hampering legislative efficiency. In her book Electoral Dysfunction: A Survival Manual for American Voters, Victoria Bassetti sums up suffrage rights this way:

The original document establishing our government acknowledges and weaves slavery deeply into our society. Women cannot vote. Two of the three major federal officers, President and Senator, are not voted on by the people. And there is not a right to vote in the Constitution. The word ‘vote’ appears in the Constitution as originally drafted only in relation to how representatives, senators, and presidential electors perform their duties. Representatives vote. But the people’s vote is not mentioned.

The Bill of Rights did not change this fact. Over two hundred years later the Supreme Court appointed George Bush to be president, and in the process reaffirmed this point in their decision by stating, “The individual citizen has no federal constitutional right to vote for electors for the President of the United States.” The double rub here is that the court was referring to a citizen’s rights to vote for Electoral College electors, not the right to vote directly for a presidential candidate.

While allowing citizens to feel as though they have a voice in the political system, the form of “democracy” outlined in the Constitution is clearly designed to impede the citizenry from determining both domestic and foreign policy. Ultimately, the founders crafted a system that allowed select groups of people to have the right to citizenship, privileging a smaller proportion of them to indirectly choose the best “men of substance,” filtered through narrowly prescribed partisan commitments as a means to preserve the wealth and power of the post-revolutionary ruling class. Within this constitutional framework, hegemonic cultural scripts tied to institutional authority perpetuate systemic inequities. In a constitutional republic without positive constitutional rights that mandate parity of political participation and economic redistribution, whilst remedying existing cultural prohibitions on recognition and representation rights; social equity and economic equality will persistently be denied, undermined and contested.

“Unfit to associate with the white race”

One can choose to believe the various cultural myths about how the freedom loving founders despised slavery, but did not work to end it based on a variety of factors, including: timing, not wanting to disrupt a widely accepted and profitable institution, and the need to accommodate the southern plantation system. No matter the rationale, the truth is that it was not in the founders’ political and economic interests to do so, nor is there evidence that they had the moral capacity to end one of the most horrific enterprises in human history. What is clear is that the U.S. Constitution was written to protect slavery while empowering slaveholders in numerous ways. This was demonstrated by General Charles Cotesworth Pinckney’s boastings in front of the South Carolina House of Representatives following the Constitutional Convention about how slavery was secured within the Constitution:

We have a security that the general government can never emancipate them [slaves], for no such authority is granted and it is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the several states.

As documented by Barbara Fields, the Constitution’s three-fifths clause, states were allowed to count three-fifths of their slaves in apportioning representation in the U.S. House of Representatives and the Electoral College. This effectively increased the political power of southern states and thus granted greater protections for the institution of slavery. This disproportionate political power through the Electoral College led to Thomas Jefferson’s 1800 presidential win. The Constitution also had a provision (fugitive slave clause) that aided slaveholders in recovering fugitive slaves, particularly those who sought sanctuary in “free” states and territories. It protected slave-owners rights to human property and made the act of aiding a fugitive slave a constitutional offense. The Second Amendment is also considered to have been, in part, a means to protect slave-owners from slave insurrections.

Another Constitutional provision focused on the highly lucrative enterprise that was the Atlantic slave trade. It read in part, “[t]he migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808.” It also allowed for “a tax or duty” to be “imposed on such importation…” for as long as the trade remained legal. This did not mean that slavery was to be abolished in 1808, but only that the import of new slaves would be discontinued.

As with settler colonialism, America’s domestic slave trade is the story of the founding of the United States. As many scholars have documented, including Du Bois, McInnis and Finkelman, the slave trade was a major economic engine, which fueled the prosperity of the new nation, with profits from enslaved people flowing to many locations in the North and South. Traders and slave owners throughout the South profited by selling human property while others profited from the forced labor it provided in the cotton and sugar fields. So did intermediary suppliers along with carriers in the steamboat, railroad and shipping industries. Naturally, northern capitalists profited as investors in banks in the exchange of money for people as did the companies that provided insurance for the owners’ investments in enslaved labor. So did foreign investors in Southern securities, some of which were issued on mortgaged slaves. The hub of the nation’s cotton textile industry was based in New England, where “enlightened” gentry enriched themselves from the misery of southern slave labor.

Following its Constitutional mandate, the Act of 1807 was the legislation that officially ended U.S. participation in the international slave trade, but not the domestic slave trade. It levied heavy fines and possible imprisonment on those who attempted to import slaves to the United States. This piece of legislation was underfunded and often not enforced, and when it was enforced, it was another source of revenue with its stiff fines and valuable legal merchandise. These realities enabled a smaller yet profitable human smuggling industry to exist in the U.S. until the middle of the 19th century. When illegal smugglers were caught, their human merchandise was seized and sold to U.S. slave owners (Du Bois, Fehrenbacher and Finkelman). The Constitution would continuously be used until the Civil War to defend the institution of slavery from federal intervention and actions taken by an increasingly militant abolition movement.

In 1857 the Supreme Court ruled on the Dred Scott v. Sanford case, based on Scott’s lawsuit to gain his and his family’s freedom in the slave state of Missouri after they had previously lived in a free state and territory. In delivering the majority decision against Scott, Chief Justice Roger Taney held that under the terms of the U.S. Constitution, Black people “could never be citizens of the United States.” Taney explained that when the Constitution was ratified, Blacks were “regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights that the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his own benefit.”

The standing of free Black Americans under the Constitution remained vague for decades to come. The Bill of Rights did not defend free Black Americans from municipal and state laws intent on depriving them of (parchment barrier) Constitutional rights. This cultural and legal reality set the stage for Jim Crow laws in the South and its manifestations nationwide into the 21st century.

In an 1852 Fourth of July speech, the formidable Fredrick Douglas called out the true nature of the institution of slavery in the United States:

What, to the American slave, is your Fourth of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciation of tyrants, brass-fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade and solemnity, mere bombast, fraud, deception, impiety, and hypocrisy-a thin veil to cover up crimes which would disgrace a nation of savages.

Conclusion

While the Bill of Rights and a few subsequent amendments have provided some democratizing effects, they have strictly been limited to affirmative remedies for injustices (instead of transformative remedies associated with dismantling). These tend to be reformist in nature and as Nancy Fraser frames such measures, are “aimed at correcting inequitable outcomes of social arrangements without disturbing the underlying framework that generates them.” Affirmative “remedies” are thus akin to negative rights and often come from state and private powers making limited and ultimately temporary accommodations to justice-seeking collective struggles, frequently through the utilization of disruptive tactics and strategies. In contrast, the inherently violent cultural, political and economic structures that are protected by the U.S. Constitution prohibit transformative remedies intended (analogous to positive rights) to eliminate the root causes of social inequity and economic inequality. According to historian Howard Zinn the American Revolution and its resulting Constitution, “was a work of genius” in that it “created the most effective system of national control devised in modern times, and showed future generations of leaders the advantages of combining paternalism with command.”

At its core, the U.S. Constitution was designed to safeguard a settler colonial society overseen by the supreme laws of capitalism, Christianity, white supremacy and heteropatriarchy. By doing so, it entrenched deep structural disparities in participation that subvert collective strivings for social, economic and political justice. This denial of the basic means and opportunities for all inhabitants of a society to directly contest and deliberate as equals violates the very nature of public reason, the principle by which liberal democracies define themselves (as the U.S. defines itself). Moreover, for a society to be authentically democratic—as an essential determinant of justice—parity of participation is required to serve as the idiom of public contestation and deliberation whereby status equality and the equitable distribution of wealth can be attained. This would require a constitutional framework derived from the principles and practices of participatory parity, where positive rights as well as equality of opportunity and equality of outcome are indisputable.

With the advent of the U.S. Constitution and its consolidation of cultural, political, and economic power; slave owners and “captains of industry” alike were made to feel more secure knowing that a state or territorial governor could rely on a swift federal response when domestic disturbances was beyond the control of local police and state militia (Beard).

With the arrival of the 19th century, mercantilism and the smaller agrarian economy of the settler colonies of the U.S. were quickly being toppled, largely influenced by the 1776 publication of Scottish economist Adam Smith’s An Inquiry into the Nature and Causes of the Wealth of Nations. Smith’s magnum opus became the recipe for free-market capitalism, and is said to have been enthusiastically embraced by the founders of the new republic, and became the ideological and structural framework for the U.S. political economy. In Wealth of Nations Smith affirmed, over a decade prior to the drafting of the U.S. Constitution, that a, “Civil government, so far as it is instituted for the security of property, is in reality instituted for the defense of the rich against the poor, or of those who have some property against those who have none at all.”

Decades after the drafting of the Constitution, Thomas Jefferson wrote to John Adams proudly declaring, “from 15 to 20 legislatures of our own, in action for 30 years past, have proved that no fears of an equalization of property are to be apprehended from them.” Indeed, the U.S. Constitution was serving its purpose in guaranteeing that inequality would remain the supreme law of the land—at an increasing rate—far into the future. In the decades ahead, as industrial capitalism flourished and the settler colonial empire expanded, so would U.S. nationalism, constructing a base and superstructure Jefferson and his peers could have only dreamed of; one that would perfectly buttress the despotic structures they deeply embedded within their beloved Constitution.