Lazar, D. (2006, February). Democracy in a straightjacket: American Constitution above
debate. Le Monde Diplomatique.
In a few weeks the US primaries will have eliminated most of the presidential hopefuls. But money and fame
count more than statements of policy. The economy is experiencing the longest period of growth in its history
- at the price of an equally historic trade deficit. Yet the basic problems (political corruption, record number of
prison sentences and executions, deepening of inequality) are absent from the debate. The constitution, seen
as sacred and unchangeable, contributes to the general apathy.
As Al Gore, Bill Bradley, George W. Bush, and numerous other presidential candidates take to the
campaign trail they will debate everything from taxes to gays in the military. One thing they will not debate,
however, is the US Constitution.
This is both strange and understandable. It is strange because, at 212 years of age, the US Constitution
is the oldest such document on earth, and among the most resistant to change. It is therefore seemingly most
in need of a democratic overhaul to bring it in line with the needs of modern society, in other nations a
constitution is something the people fashion in order to create a new framework for democratic politics. In
America the people are something that the constitution has created, shaped, and molded in its own image in
order to maintain the outlines of an 18th-century Jeffersonian republic. It is no more natural under such
circumstances for an American to question the constitution than it is for a medieval vassal to criticize his
sovereign ford.
This is at the root of what is known as "American exceptionalism," a phrase that originated in the US
Communist Party in the 1920s, but which has since been adopted by sociologists and political theorists across the
political spectrum. Initially, it referred to the theory that US capitalism was so strong that it was exempt from the
usual cycle of booms and busts - an idea that proved spectacularly wrong in 1929. Since then bourgeois academics
have seized on it to describe a view of American politics and society as intrinsically different from those of other
countries because of some essential difference in American character or structure1. If it is indeed the case that
American politics are altogether unique, it is because they are largely based on the framework of the constitution.
This framework also deserves more careful scrutiny because of the exceptional breakdown in American
democracy. With the possible exception of Japan, American politics are now the most corrupt in the advanced
industrial world. To quote Republican presidential candidate John McCain, they are "nothing less than an elaborate
influence peddling scheme in which both parties conspire to stay in office by selling the country to the highest
bidder"2. Not surprisingly, American voters are perhaps the most demoralized and apathetic in the world. The 1996
presidential election was the first in which a majority of eligible Americans did not vote - which did not stop
thousands of commentators speaking of its great significance.
If the constitution is responsible for all the good things that happen in America (which President Clinton terms
the "indispensable nation"), is it also responsible for the bad - political corruption, crushing weight of religion,
fragility of public liberties and social protection?
This, of course, is heretical in a society that views its constitution as hardly less than divinely inspired. Yet a
more rigorous and unsentimental analysis than the constitution is usually accorded suggests something quite
different: rather than an instrument of democratic self-government, it is a melange of democratic and pre-democratic
beliefs, a document filled with awkward compromises and glaring contradictions.
Perhaps the most basic concerns the preamble, the famous introductory paragraph beginning with the phrase,
"We the People...", These three words alone would seem to place the constitution at the forefront of a new age of
popular sovereignty that was beginning to unfold in the 1770s and 1780s. Yet the founding fathers were actually of
two minds concerning popular power. On the one hand, they recognized that the people were the only possible
source of authority in a new republic. On the other, they were so frightened by the new force they were calling into
being that they felt obliged tie it down, Gulliver-style, with numerous restrictions and limitations. They were so leery
of a plebeian House of Representatives, for instance, that they created a quasi-aristocratic Senate to more or
less cancel it out, (As the modern saying has it, "The Senate kills the bad bills, the House kills the good.) The
founders created a proto-Bonapartist presidency to offset the legislature and a lifetime judiciary to offset both
Congress and the president. As if this was not enough, they left huge powers (including education and justice)
in the hands of the individual state governments so that they would serve as a further check on federal power.
Because political power was inherently dangerous, the only way to preserve liberty was to fragment
authority and somehow turn it against itself. As John Trenchard and Thomas Gordon, authors of the highly
influential "Cato's Letters," put it in the 1720s, "Power and sovereignty ... [must be] so qualified, and so
divided into different channels, and committed to the discretion of so many different men ... [that] their
emulation, envy, fear, or interest... [make] them spies or checks upon one another."3 Or, as James Madison,
the "Father of the Constitution", put it in a letter to Thomas Jefferson in 1787: "Divide et impera [divide and
conquer], the reprobate axiom of tyranny, is under certain conditions, the only policy, by which a republic can
be administered on just principles.”4
This is the central principle of the US constitution and hence of American politics. The problem is that
sovereignty is by definition whole and unlimited. Thus Madison was attempting to divide the indivisible, to
turn the people against themselves so that they would nullify their own power at every turn. The result was
supposed to be a republic of the Golden Mean; one that would discourage extremism and promote
moderation and compromise. But the reality has been the opposite, a deeply neurotic form of politics
constantly veering back and forth between periods of stagnation and hysteria.
By surrounding slavery with legal guarantees that were all but impossible to remove, the constitution led
directly to a civil war between New England Puritans and Virginia Cavaliers. In 1861-65 that was in many
ways a replay of the English civil war of the 1640s, The Americans may have avoided a period of Jacobin
terror. In the 18th century, in fact all they did was put it off for a century, when 600,000 died as Union forces
tore through the South. Once the war was over, the federal government returned to its original lassitude,
capitalist robber barons rushed to fill the vacuum, strikes were crushed, and Southern blacks were forced into
a form of serfdom in some respects worse than the slavery they had just escaped. If Franklin D, Roosevelt
succeeded in expanding federal authority during the unparalleled emergency of the 1930s and 1940s, he did
not succeed in making it more efficient or comprehensible.
Since then federal politics have grown ever more incoherent due to the crippling problem of "gridlock". As
the party system has disintegrated, the days are long gone when a single party could control the entire federal
government. Instead, with the Democrats controlling one branch and the Republicans controlling another, politics
since the 1970s have degenerated into a form of long-term trench warfare in which the two sides grapple for control
of the third, i.e. the Supreme Court.
In the 1980s this led to the Iran-Contra (Irangate) scandal in which the Reagan administration seeking to bypass
a Democratic-controlled Congress, set up a secret office in the White House basement under the control of Colonel
Oliver North to sell missiles to Iran and funnel arms to right-wing guerrillas in Nicaragua.5 In 1995-96 the federal
government briefly shut down when the two parties were unable to agree on a budget. A few years later
Republicans got their revenge for Irangate when the special prosecutor Kenneth Starr, a US-style grand inquisitor,
caught Clinton in a lie about his sexual relations with Monica Lewinsky.
The results have helped undermine the very notion of democratic self-government. As the normal legislative
process has ground to a halt, deal making has moved off-stage into hundreds of committees and subcommittees in
which lobbyists and wealthy political contributors hold sway. As corruption has mushroomed, the political process
has grown more and more opaque, which is why tens of millions of American voters have essentially dropped out of
the political system. Yet in the name of freedom of expression (the First Amendment), the Supreme Court has
opposed any constraint on electoral funding.
The situation is not much better in the area of civil liberties. Because political power is seen as inherently
tyrannical, US constitutional theory holds that civil liberties can be safeguarded only by elevating them above
ordinary politics. Thus the Bill of Rights (as the first ten amendments to the constitution have been known since their
adoption in 1791) is regarded as even more sacred and untouchable than the original document of which the
amendments are nominally a part.6 Yet as democracy has decayed, so has the basis for civil liberties. As a rightwing
offensive has intensified, the Supreme Court has grown increasingly cautious in interpreting the Bill of Rights, while
politicians have learned to win election by persuading the middle class that civil liberties must be narrowed if crime
is to be reduced.
In New York, a city that once prided itself on being abrasive and outspoken, the result is an increasingly
repressive atmosphere in which even the mildest demonstrations now meet with lines of helmeted, riot-clad police.
When "Sensation," a collection of provocative art works owned by the British advertising mogul Charles Saatchi,
opened at a local museum in October 1999, Mayor Rudolph Giuliani, a classic 1930s-style strong man, assailed it
as anti-Catholic and moved to punish the museum by cutting off city funds. As a result Giuliani's approval rating
rose even higher.
"I would trade any day 10% of my civil liberties for a 5% decrease in crime", one resident told a reporter a
couple of years ago in Washington Square, a once-rowdy park in Greenwich Village where video surveillance
cameras now keep watch 24 hours a day for drug dealers and drunks.7 But why stop at 10%? Why not
surrender all your civil liberties in exchange for perfect peace?
In 1999 the US prison authorities executed 98 people, a third more than the year before, and all
indications are that the tally this year will be even higher. George W. Bush has personally presided over 112
executions since becoming governor of Texas in 1995, while his brother, John Ellis (Jeb), governor of Florida,
has pledged to speed up executions there as well.
Rather than the glue holding democracy together, the US constitution seems a hollow faith tearing it
apart. The more it is elevated above the reach of ordinary politics, the more democratic politics are lowered.
And the older it grows, the more heavily it weighs on society. Thanks to an arcane amending process, as few
as 13 states representing just 5% of the population can veto any constitutional change desired by the other
95%. And the problem threatens to get worse as the gap widens between demographic giants such as
California (population 33 million) and depopulated Rocky Mountain states such as Wyoming (population
481,000).
As long as internet stocks keep rising and 30-year-old cyber-entrepreneurs find themselves worth
hundreds of millions of dollars, Americans believe they have found the economic Holy Grail. They see
themselves as the envy of the world, a light unto the nations. But if the Wall Street bubble deflates, they may
find that they are not the most modern society on earth - but constitutionally among the more backward.
* Journalist, author of The Frozen Republic: How the Constitution Is Paralyzing Democracy (Harcourt
Brace, New York, 1996).
(1) See Seymour Martin Upset, American Exceptionalism: A Double-Edged Sword, Norton, New
York, 1966.
(2) Cited by The New York Times, 1 July 1999.
(3) In Richard Beeman, Stephan Botein and Edward Carter, Beyond Confederation: Origins of the
Constitution and American National Identity, University of North Carolina Press, Chapel Hill, 1987, p,
76,
(4) Isaac Kramnick, Republicanism and Bourgeois Radicalism, Cornell University Press, Ithaca,
1990, p, 263.