Needs a complete rewrite

Rewriting the constitution

As Trump gears up for 2020, Paul Demarty asks why America needs a president at all

As the post-election situation settles in, it is time to take stock of where things stand in the United States.

The immediate political situation is pretty clear. We are plunged headlong into the next electoral season already, and we know very well who will be the Republican nominee for president in 2020. Donald Trump’s replacement of Jeff Sessions as attorney general plainly raises the prospect of winding up Robert Mueller’s fishing expedition into the president’s cronies. No Republican senator or congressman will dare oppose it, after the Grand Old Party’s perfectly respectable midterm performance dispelled any idea that Trump is electoral kryptonite.

The Democrats, meanwhile, get a toehold in the American constitutional landscape. This is something of a relief after two years marginalised in both Congress and the White House, but it poses its own dilemmas. If they use the powers of the House to go in hard after Trump, they risk a backlash, just as the Republican hounding of Bill Clinton worked out in his favour in 1996; if they soft-pedal it, they risk alienating activists increasingly impatient with the political emptiness of the machine types, but with very inchoate alternatives at best for now.

Sharpening the knives of critique means looking at a wider canvas - both at Trump’s place in American history and America’s place in world history. In both cases, we must deal decisively with the one thing the USA has bequeathed to the world, of which more or less its whole political class is unambiguously proud - the constitution. Needless to say, from our point of view, the record is a little more complicated than that; and coming to terms with pax Trumpiana means confronting the historical reality that made it possible, as well as its obvious perversity.

What is Trump doing to America? We should start with the final significant controversy of the campaign. Trump declared his intention to suspend citizenship rights for babies born in the USA to illegal immigrant parents, and there was a great outcry. Not the least part of this outcry is the implication that Trump proposes, by executive order, to nullify a provision of the 14th amendment, which begins:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This seems, at first blush, to rule out Trump’s scheme from the get-go. If you are born in the United States, you are a citizen, and that is that - this presumably augurs well for a tasteful resolution to this piece of demagogy. Yet there is a White House case to be made, which hinges on the meaning of the phrase “subject to the jurisdiction thereof”: intended to exclude foreign diplomatic staff and the like, it is now proposed that the children of undocumented migrants shall fall outside of such “jurisdiction” as well.

I make no claim to expertise in American jurisprudence; but say that the case is pretty watertight against Trump. It is nonetheless a fairly safe move for him. Either the case, pursued to the supreme court, is won there by a strenuous act of artificial reasoning on the part of its newly-minted conservative majority, setting an ominous precedent in the south-west for immigrant communities and in Washington for ‘progressive’ lawmakers; or else he can wax further demagogic about the elites and their contempt for the ordinary (white) American working man.

14th amendment

It seems a little too much of a coincidence that it should be the 14th amendment, of all the options, that so exercises America’s current commander in chief. For, though its citizenship definition has popped up in many immigration related cases in recent decades, we have to turn back exactly 150 years in history to meet the occasion of its passing. The purpose of the amendment was to stop the defeated southern states from nullifying the abolition of slavery. At that time, at the sharp end of reconstruction, this was no small matter. And, while only a qualified majority of states are required to assent to an amendment, the Republican government was not shy of coercion, and ratification was a condition of the readmission of a rebel state’s representatives in Congress.

The south regrettably succeeded, in the end, in breaking the resolution of the north in imposing reconstruction, and making a mockery of the 14th, and so began the Jim Crow era - the denial of elementary civil dignity to black Americans, lynchings and extreme exploitation. Our amendment, however, continued its picaresque course through history, surfacing through various immigration cases, and even in the landmark Roe v Wade (1973) that enshrined abortion rights, and 2015’s Obergefell v Hodges, which guaranteed the right of same-sex couples to marry.

It is hardly surprising that Trump can raise a few snarls from the far right by going after it then. The neo-confederates pass on racist folk tales of the indignities of reconstruction. Anti-migrant crusaders hate its implicit guarantees of citizenship. Evangelical culture warriors set their sights on Roe v Wade and Obergefell v Hodges. Yet things are stranger than that, for it surfaced improbably as the legal basis for corporate personhood in the service of railway robber barons in 1886 - a doctrine which more or less makes an overmoneyed mountebank like Trump possible in the first place, and which is highly controversial at every other layer of American society except its pliant juristocracy.

In this short legal document and the battles over its meaning, then, we find more or less the whole of American history in embryo. Back to its origins, a more small-R republican and democratic impulse did battle with an ‘English’ aristocratic conservatism - there were even plans to crown George Washington king. The slavery issue posed things more sharply yet, encumbering the infant republic with a commitment to denying humanity to many of its children. That could only be settled with a second revolutionary war, which pitched a motley army of radical exiles of the 1848 vintage and fire-breathing Protestant revivalists against the slaveholders and their ‘poor white’ neighbours. Southern ‘Jim Crow’ and the intensification of capitalist exploitation elsewhere frosted over the promise of the 1860s.

Over the course of all this history, the fundamental shape of the American constitution - its mechanical arrangement - has remained pretty consistent. And it, too, embodies this compromise. There is a very good reason why all the good stuff in the Bill of Rights - freedom of speech, arms, protection from warrantless search - is in the first tranche of amendments, not in the 1789 document itself. Virulent anti-democrats like Alexander Hamilton, latterly of Broadway stardom, did not want that kind of material in there, because they despised the mob. It was down to democratic anti-federalists to push the cause for a charter of fundamental citizens’ rights.

The result is a monstrous mish-mash. An elected king, called a president, emerges from a mathematically baffling process with extraordinary powers on the world stage and total discretion over government appointments. A legislature divided between approximately equally-sized constituencies in one house and two representatives per state in the other is destined for paralysis. A supreme court with members appointed by the above increases the inertia, yet spends most of its time discussing those fundamental rights laid out in the amendments.

It is the objective of American national chauvinism to make of this contradiction a smoothly-carved fetish called The Constitution. And there is something beautifully traditional about the whole thing. Perhaps it was to America Walter Bagehot looked when he discerned in the English constitution a “dignified” and an “efficient” part, for the division is almost comically clear. Amendments 1 through 10, plus your favoured seasoning of later ones, are the “dignified” part, in this case; it is they that are recited reverentially. The “efficient” part is what looks inefficient - the way in which popular initiative is frustrated by a separation of powers that hands the decisive instruments to the servants of the capitalist class - be they lawyers (the supreme court, Congress) or professional politicians (Congress, the presidency). The bare mathematics of the electoral system, meanwhile, favours small states over large, and country over town; thus an atomised mass is brought into being against the inherent tendency to political collectivity that obtains among the urban population and especially the urban proletariat.Shouting

The result of such a contradictory process may be presented in schematic fashion as follows. The chauvinist backslapping intensifies; meanwhile, so does exploitation. The paralytic character of the constitution resists attempts to overthrow its worst features; its tendency to prevent free associations from arising, meanwhile, breeds impotent resentment. In response, there arise demagogues who promise to ‘drain the swamp’ and sweep away the corrupt elites. Only they can do it, of course. They cannot do so, however, since corruption is built into capitalist society, and in any case most of their number are quite as extravagantly corrupt as their supposed enemies (whoever can comrade Demarty mean?); perhaps the ‘sensible’ representatives of the establishment will scrape back in at next time of asking, and the merry cycle can repeat.

The way out, then, means leaving capitalism behind, and its humble and obedient servants. But it also means carving up its constitutions. The American left might profitably reacquaint itself with anti-federalism, with organised mistrust of judges, with small-R republicanism. In time, perhaps it might reconcile itself to the second amendment, which it tosses away in understandable revulsion at the multiplication of nihilistic massacres - with, however, no chance thereby of tackling the nihilism.

It must, above all, recognise that the ‘separation of powers’ is no beautiful human achievement, but a calumny against democracy: an attempt - unfortunately successful - to politically expropriate the masses. The presidency must be abolished; the supreme court denuded of its right to nullify legislation and subjected to regular election; the Senate must be scrapped; and the House must become a proportional chamber, no longer the plaything of two corrupt, complacent machine-parties.

That would be an ‘amendment’ worth shouting about. But it is no more than the routine common sense of an earlier generation of American socialists, who had not yet been humbled by our lifetime of defeats.