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, 19th 23rd, 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.
