Checks and Balances

These are some loose reflections on the American War of Independence, The Declaration of Independence, the Constitution, the Civil War, and where my country is today. They should be treated as speculations, hypotheses even, that I would gladly modify should I read or talk to someone who has more wisdom than I do. Of course, these hypotheses are the result of my thinking, which in turn in based on my reading. I will give my bibliography at the end.

. . .

The “founders” were committing treason. They knew that. The United States was founded on an act of treason. I recall an exchange between Blackthorn and Toranaga in James Clavell’s Shogun:

Toranaga: There are no mitigating circumstances when it comes to rebellion against a sovereign lord.

Blackthorn: Unless the win.

Toranaga: Yes, Mr. foreigner with the impossible name, you named the one mitigating factor.

Well, the American rebels knew this; they knew that the cost of defeat was to die at the end of a rope with their fortunes confiscated.  But for public relations, it was nevertheless desirable to justify themselves. And the British Lockean liberal tradition gave them the means to do that. After all, this was not the first rebellion in British history: the natural right to life, liberty, and property. With a great sense of rhetoric, Thomas Jefferson made one little change: “life, liberty, and the pursuit of happiness.” After all, no one should think the whole rebellion was about property.

  And then inserted a “proposition” that was at most in the background of Lockean liberalism: “All men are created equal.” I will come back to this.

  Founding your states on natural rights – and the right to remove a government that violates them, if a sufficient number of people believe this to be the case – is a tricky business.

   Liberalism has its roots in the defense of property – a vague term – against the power of the state to take it away through confiscation or “taxation without representation” i.e. without the “consent of the governed.” A big part of the rebellion was the feeling of the propertied elite that their fortunes were not safe, that they were subject to the power of Parliament to tax it away: “taxation without representation” and being governed without consent were thus the big slogans.

   So the colonies became sovereign countries, but countries that manifestly could not survive alone. Most reasonable people of the time recognized that some form of union was necessary for the survival of all.

   So on what basis could the 13 colonies-become-countries form a “more perfect union”? The elites met – the free family farmer, the landless in search of land, the simple artisan (blacksmiths and such), and of course the slaves were not present at the founding. The signers of the Constitution were predominantly from the upper echelons of colonial society, with many being wealthy landowners, planters, lawyers, merchants, and financiers. The few who started life in modest circumstances (Benjamin Franklin, Roger Sherman) had made it big by that time. The majority were part of the colonial elite with significant economic interests in land, trade, and finance.

    I don’t want to appear cynical or too Howard-Zinn-ish. Some founders, though from the elite and even slaveholders, were genuine republicans (Madison, Jefferson). Many of the compromises necessary to form any kind of a union, much less a perfect one,  were like biting into a shit sandwich for such men. But the sine qua non (the essential condition – Latin phrases, a weakness of mine) of forming a more perfect union that was their property would be protected, legitimate, and hopefully open to increase. Southerners whose wealth was based on slaves did not want northern free farming or trade interests ganging up on them. And none of them wanted a truly democratic system in which the non-elites by control of the legislature could impose a progressive tax system on them or otherwise undermine their interests. They did not want the same kind of rebellion they had just made against their sovereign to happen to them from below. And yet their own rebellion made “consent of the governed” and “no taxation without representation” – and even “all men are created equal” – into principles that could not be ignored.

   The result of all this was the famous system of “checks and balances.” The one thing it prevented that everyone except the core MAGA cultists can agree on: it prevented power from being concentrated into the executive; it prevented an absolute monarch in the style of Louis XIV. (King George was never that kind of a monarch; Parliament governed Great Britain. He did not play a helpful role in the problems that led to the rebellion but he was not a Louis XIV.) They had to make him out to be like that as part of their war effort.) Rich and poor alike, I think – again excepting the Trump cult – can agree on that.

   Checks and balances.

 

I. Checks on Popular Sovereignty

    It gave “the people” – propertied males mostly – the right to vote, to express their preferences. But the electors elected the President: first, they were to exercise their own judgment; then according to party; only by the mid-1800s (in most states, not all) the electors voted in line with the popular majority of their state. From the point of view of democracy, the Electoral College is superfluous and never fails to disturb the democratic sensibilities of the people who have them (i.e. those other than Republicans) – especially when the candidate with a minority of the popular vote wins, as happens regularly these days (2000, 2016).  

  But the Electoral College still “balances” the former slave states against the more popular “free states,” even if the dividing issues are more in the head ow than in property. And it points to an important fact about the original Constitution: it established a union of states, states that gave some of their powers to the federal government but were still – this is ambiguous – the main source of loyalty. In fact, the framers did not have a uniform view on whether loyalty should primarily lie with the state or the union, and the Constitution reflects this tension. The document was intentionally crafted with enough flexibility and ambiguity to allow for different interpretations and to enable the balance of power between states and the federal government to evolve over time. While some framers prioritized state sovereignty, others emphasized the importance of a strong union, and the Constitution was designed to accommodate both perspectives. The Electoral College, which gives the southern and western states a disproportionate influence over elections contrary to the basic democratic principle of one-person-one vote, is part of the checks and balances designed, among other things, to protect property from democracy – to prevent the people from doing what the King could do: tax their property without their consent or even take it away.

 

II. Judicial Checks on Legislature, Executive, and Popular Sovereignty

   The principle of judicial review is not explicitly stated in the U.S. Constitution. Judicial review—the power of courts to declare laws or actions of the government unconstitutional—was established through judicial interpretation rather than explicit constitutional text. This was a check the court under Marshall arrogated to itself. The framers of the Constitution were rightly concerned about the potential for "majority tyranny," where the interests of the majority might infringe upon the rights of minorities, including property rights.  Property was seen as a fundamental right that needed protection from the potential excesses of democratic governance. Of course, this makes the Supreme Court a servant of the wealthy. It is one thing for a King to take away my farm, but quite another for the elite to block progressive taxation through the courts.  Federalists, like Alexander Hamilton, saw judicial review as a way to ensure that laws passed by the more "democratic" branches of government (i.e., Congress) did not violate the Constitution. This was particularly important in protecting property rights, which were seen as vulnerable to populist pressures. Hamilton would love the current conservative majority on the Supreme Court and its rolling back of democracy to protect the interests of “property” – today not land- and slave owners but billionaire speculators and enormous global corporations.

   Striking down Roe vs. Wade affects many people in their private lives, but in terms of the regime it was sideshow. The crucial decisions are these:

Dartmouth College v. Woodward (1819)

Significance: This landmark decision established that corporations have rights under the Contract Clause of the Constitution. The case involved the state of New Hampshire attempting to alter Dartmouth College's charter. The Court ruled that the charter was a contract and that the state could not interfere with it, thereby recognizing corporations as having rights similar to those of individuals regarding contracts. It arrogated to the courts a power not given it in the Constitution: judicial review. That power has mainly been used to protect the rich, protecting property in slaves before the Emancipation Proclamation, and protecting corporations, which previously under common law required the consent of the legislature because of the potential to amass so much capital that they could influence the State.

 

Santa Clara County v. Southern Pacific Railroad Co. (1886)

Significance: Although not officially part of the decision, the headnote of this case is widely cited for its recognition that corporations are "persons" under the Fourteenth Amendment, which provides equal protection under the law. This laid the groundwork for corporate personhood, a foundational concept for corporate rights.

 

Buckley v. Valeo (1976)

Significance: This case established the principle that spending money to influence elections is a form of constitutionally protected free speech under the First Amendment. This decision laid the groundwork for later cases, such as Citizens United, that significantly expanded corporate political power.

 

First National Bank of Boston v. Bellotti (1978)

Significance: In this case, the Court struck down a Massachusetts law that prohibited corporations from spending money to influence the outcome of referendum votes. The Court ruled that the First Amendment rights of corporations to engage in political speech were protected, expanding corporate influence in the political process.

 

Citizens United v. Federal Election Commission (2010)

Significance: The most corrupt and horrible decision regarding corporate power, Citizens United held that corporations (and unions) could spend unlimited amounts of money on political campaigns, arguing that such spending is a form of free speech protected by the First Amendment.

 

West Virginia v. Environmental Protection Agency (2022)

The  Court restricted the EPA's authority under the Clean Air Act to regulate polluting industries.

Now of course the Supreme Court has made the President in effect a King. This could be a double-edged sword. The President-King is not bound by law when it comes to furthering corporate interests but neither is President-King bound by law when opposing them, though no doubt the Court would revise their ruling should corporate cash and media dominance ever fail to make someone hostile to their interests President-King.

 

III. Legislature Checking the Executive

 

   Well, the legislature is not purely based on popular sovereignty. The less populated southern slave states only agreed to the Union if there was a balance of power in Congress. This was brought about by making slaves could as 3/5 of a person for representational purposes, and creating a second chamber, the Senate, in which the states would have two senators each, regardless of population, originally elected by the state legislatures, which the southern elites were confident they could control. Moreover, the President had veto power which only 2/3 majorities could override.

  This system ensures gridlock, at least on any policy that threatens enough interests to provoke resistance. It gives Congress the power to block any executive policy without the responsibility of putting an alternative policy in place. We often here the President is the most powerful person on earth. Actually the President if rather weak, completely dependent on a Congress controlled by all sorts of local and financial interests even to pass a budget.

   And the Supreme Court has made sure that money talks in the Legislative and Executive branches, very loudly indeed.

 

   A primary purpose of the design of the political process through the Constitution and its interpretation by the Supreme Court is to protect “property”. It is like the spider at the center of the web.

     Of course, I agree with the liberal tradition that we have a natural right to property – have a right not to have our homes confiscated; have a right not to be taxed without being able to elect our government. But it depends on the meaning of property. Are we talking about a family farm that has been in the family for generations, or slaves, or stocks in big pharmacies, big oil corporations, giant “hedge funds,” or Boeing? The property of family farms in America surely was not protected against Capital. Capitalism blurs the distinction, reducing everything to a commodity, to potential capital.

  The prime function of a political system cannot be to protect and further the interests of capital, of a corporate and financial elite over the common good. But that is what our political process was largely designed to do, by intention or not. Popular sovereignty exists only in a very attenuated form in America. And the people have been largely deprived of good advisors in the form of their government, at least on fundamental issues.

Some thoughts on the meaning of the Civil War next entry.