We the Elites — -Why the U.S. Constitution Serves the Few — -Robert Ovetz, Pluto Press 2022
Can We Use the Constitution to Change Society?
Is the U.S. a Democracy?
This is a very comprehensive and thorough analysis of the U.S. Constitution in history and theory. The basic thesis is that the purpose of the Constitution was to protect the position of the upper class, who the author calls the elites. It denied democracy and protected property. It was as the late great historian Howard Zinn argued the basis for a new American Empire. Critics of the Constitution are often familiar with its anti-democratic provisions: Electoral College, Senate that represents territory not people, Presidential Veto, Judicial Review, Separation of Powers etc. Ovetz discusses these but puts more emphasis on protection of property.
Was the Constitution Counter-Revolutionary?
“The elite also wanted a functioning national economy. State tariffs and separate state treaties with foreign nations was getting in the way of that. This was compounded by the post-war Depression.”
Historians have debated: Was the Constitution a counter-revolution or consolidation of the leadership of the revolution? The author argues strongly that it was a counter-revolution that snuffed out attempts at political and economic democracy. He goes through many examples of the frustration of elite interests at the state level. Thwarting debt collection was an important issue. Elected judges and justices of the peace often refused to prosecute people for failure to pay debts, or slowed down the process severely. The constitution rectified this by prohibiting anything that would “impair the security of contract”. It created a Federal court system and the Federal Supremacy clause that would defend creditors.
The enforcement of debts was also an international problem. Under the Treaty of Paris which ended the Revolutionary War, Loyalists and British subjects were supposed to be able to pursue their claims in courts in the U.S. This was often prevented by mass opposition. This led to capital flight from the U.S. with investors unwilling to invest. The result was a severe economic contraction which the elite wanted to overcome.
The debtor/creditor issue was complicated because some of the elites were debtors or at least debtors and creditors. However, overall, their interests were on the side of creditors. The author points out that who the debtors were was most important. The elite wanted to make sure that the “People Out of Doors” could not skirt their debts. (“People Out of Doors” was the term the elite used for the poor because they worked outside).
The elite also wanted a functioning national economy. State tariffs and separate state treaties with foreign nations was getting in the way of that. This was compounded by the post-war Depression.
The Founders had to go outside the system set up by the Articles of Confederation. Under the Articles, only unanimity of all the states would allow amendments. The Convention in Philadelphia in 1787 was strictly illegal. The Federalists were willing to compromise divisions within the elite in order to get their general interests consolidated. The Anti-Federalists were more divided. Subsistence farmers opposed the Constitution. Mechanics (petit bourgeois artisans and working class) sympathized with democracy and debtor issues. The mechanics came around to support the Constitution because they thought it would increase economic opportunity. Upper class Anti-Federalists often bailed out at the end and came over to the Federalist side. Commercial farmers near the cities were more likely to support the Constitution than subsistence farmers. The Anti-Federalists were doomed by division but the author thinks they were unlikely to win in any case in part because the ratification process was so undemocratic.
Did the Constitution Build a Capitalist Society?
“The Revolution and Constitution consolidated a Merchant Capital/ Slaveocracy alliance as the new ruling class.”
Ovetz sees the Constitution as building a capitalist economy. The American Revolution is often described as the first stage of the bourgeois revolution in the U.S. with the Civil War as the second phase. This seems like an accurate description. However, the U.S. was not a predominantly capitalist society in 1787. The wage labor working class was a tiny minority. The majority in the North were subsistence and small-scale commercial farmers. In the cities, there were more artisans than wage workers. Merchant, not industrial capital, dominated in the North. In the South, slaves and slaveowners made up a large portion of the population with small farmers making up most of the rest. The Revolution and Constitution consolidated a Merchant Capital/ Slaveocracy alliance as the new ruling class. This class wanted to develop the market economy which ultimately led to an industrial capitalist economy.
As is often the case, classes other than the industrial capitalist class led the bourgeois revolution. This is based on what Neil Davidson called the “consequentialist “view of bourgeois revolution. Under that view, what matters is not who led it, but what economic system it promoted.
The U.S. in 1787 was still in flux politically and economically. The ruling classes had needed the masses to oust the British. They could not put the genie back in the bottle immediately. During a revolutionary period, the ruling class can lose control of the state apparatus. This is what happened during the Revolution and post-revolutionary period. The Constitution was the economic ruling class’s way of re-consolidating its political power. The specific constitutional provisions were important in carrying out this counter-revolution. However, once the counter-revolution was solidified, the particular provisions became less important. Once the ruling class had re-established its power, it was less reliant on constitutional articles.
Why Has the Constitution Changed? Is It More Democratic Now?
“The ruling class learned over time that its rule was less dependent on specific constitutional provisions. It could still rule effectively without them.”
Over the course of history, the Constitution has changed. Though it still defends the power of the ruling class, certain undemocratic provisions have been dropped: The Senate is now elected rather than appointed by the legislatures as before; Women, Black people, and Native Americans can vote; property qualifications were dropped. In spite of these changes, the Constitution still gives a legal framework for capitalist class rule.
Why has the ruling class allowed these changes? The ruling class learned over time that its rule was less dependent on specific constitutional provisions. It could still rule effectively without them. Secondly, these changes were forced on the rulers by mass movements. As with other reforms, they calculated that their rule was more secure after granting the reform than it would be by denying it. There is another important reason: The growth of industrial capitalism has disciplined government. Each government must create a “good business climate” to attract capital. Even governments run by Labor parties are forced to defend the interests of the capitalist class. Marx’s statement about private capitalists being forced to follow the drive of capital accumulation applies to states as well:
“Competition makes the immanent laws of capitalist production to be felt by each individual capitalist, as external coercive laws”
In 1787, when capitalism was not yet dominant, this disciplining factor was less prevalent. The rulers had to rely on directly political provisions to defend their interests.
Despite the chaos of the revolutionary period, the economic dominance of the upper classes finally led to their political dominance. The demands of an emerging market economy required a government that promoted commerce. The pressure of capital flight forced the reassertion of creditor rights. The usual historical pattern of the economic ruling class becoming the political ruling class reasserted itself. The alternative to the reassertion of political power by the rising ruling class would have been what Marx called “the mutual ruin of the contending classes”.
How Central Is the Constitution to Prevention of Social Change?
“The problem is Bourgeois Democracy in general not the U.S. Constitution in particular. In a class divided society, the state rises to maintain order in the interests of the economic ruling class.”
Debunking the Constitution is a great service! However, the author goes a little overboard. Instead of seeing the Constitution as an expression of ruling class control he sees it as the main cause of that control. His unstated implication is that American society would be fundamentally different without the current Constitution. He sees it as the root cause of the problems in the U.S. In fact, the root cause is the power of the ruling class in a class divided society. This ruling class political power is the outgrowth of capitalist economic power.
The problem is Bourgeois Democracy in general not the U.S. Constitution in particular. In a class divided society, the state rises to maintain order in the interests of the economic ruling class.
Ovetz accepts this to an extent in denouncing all constitutions as cementing the rule of elites. However, he also states that the U.S. Constitution is the root cause of elite domination. This leads to a disagreement he has with Howard Zinn:
“many agree with historian Howard Zinn that “the Constitution is of minor importance compared with the actions that citizens take , especially when those actions are joined in social movements” . It turns out the Constitution matters a whole lot.” (165–6)
Ovetz is correct that particular constitutional principles have often been barriers to social change. However, these impediments are primarily the methods used by the ruling class because this is what the rulers have available to them. In other countries, they use other methods to the same ends. In Britain for example, the House of Lords can exercise a veto over legislation, even though Britain has no written constitution. Zinn was correct that the most important question is the balance of class forces, not the particular constitutional provisions. — — If the movement is strong enough it can win gains in spite of the Constitution. The struggle against undemocratic aspects of the Constitution is important in that it can help change the balance of class forces and win reforms.
Revolutionary Strategy
“a victory will require the elimination of that constitutional state, not just somehow getting around it as Ovetz implies in his advocacy of decentralized revolt.”
The author’s focus on the Constitution as a barrier to change leads him to put the cart before the horse. In the concluding chapter, he goes through several scenarios for overcoming the Constitution. He evaluates the prescribed process of a new constitutional convention under the current rules compared to a process outside the rules which he favors. He implies that transformation of the constitutional order has to precede any fundamental change. We cannot protect the environment, have decent health care, education, workers’ rights, liberation of the specially oppressed etc. until we get rid of the current Constitution.
He is right that any revolutionary movement will have to get rid of the current Constitution. This will be one aspect of the fundamental transformation necessary. The question is should it be the first or primary part of that process? Will the issue of constitutional transformation motivate more radical action than struggles over ecology, oppression, exploitation, poverty etc.? Will people come to see the need for overthrowing the Constitution through other struggles or will they come into struggle primarily over constitutional issues?
The author’s stress on the primacy of the Constitution leads to vague explanation of fundamental social change. He favors a more radical version of Murray Bookchin’s “libertarian municipalism” (169) and an anarchist vision of revolts breaking out and linking up rather than a concentrated organized attack on the state apparatus (courts, police, prison, army etc.). This is contradictory to his main emphasis on the Constitution itself being a key barrier to social change. If the Constitution and the constitutional order is a key impediment, doesn’t it have to be confronted directly? The implementation of the current constitutional order relies on what Marx, Engels and Lenin called the “special bodies of armed men”, the core of the state apparatus. Without that apparatus, the Constitution would have no power. To overthrow that order, the movement needs to eliminate that apparatus. Though the working class will come to see the need to smash the state through fighting against exploitation and oppression, a victory will require the elimination of that constitutional state, not just somehow getting around it as Ovetz implies in his advocacy of decentralized revolt.
Unfortunately, the author’s central emphasis on the Constitution as the major problem gets in the way of an effective solution. Socialist revolution will eliminate the Constitution but this will be only one aspect of a fundamental transformation which will be focused on oppression, exploitation and ecology. The revolution will sweep away the Constitution as a byproduct of sweeping away capitalist society. It will eliminate the state that carries out the constitutional order and defends capitalism. In doing so, it will create a new “constitution” based on the power of the working class.
This book is an important contribution to debunking liberal constitutionalism. Too many movements are constrained by liberal politics that rely on the current constitutional order and at most want to reform it. The author explains well that devotion to the constitution gets in the way of effective movements. He rightly excoriates the dominant obsession with lesser-evilism which only aims at minor reforms of the status quo. These are all important additions to debates on the Left in the U.S.
Despite its limitations, this book is well worth reading!
