Full of checks and balances against democracy

A central driver

The unchanging constitution no longer ensures stability: quite the reverse. As shown by the January 6 attempted coup, it brings instability. Daniel Lazare defends his long held position

James Creegan criticises me on multiple counts in his recent article dealing with the January 6 attack on the US Capitol (‘Drivers that led to January 6’ Weekly Worker February 18).

He says I exaggerate in describing the uprising as an “attempted coup [that] was all too real” and which had “a significant chance” of plunging the country into “the depths of authoritarianism”. He says I underestimate “the legitimacy elections confer upon capitalist rule” and hence the ruling class’s attachment to the constitutional status quo. He takes issue with my description of the two bourgeois parties as equally mendacious and argues that Donald Trump’s lies were in fact “more numerous and blatant”. He says I do not appreciate the role that the loss of “white status” played in fuelling the January 6 insurrection and in particular the tendency of white-male rioters to view guns as “an emblem of masculinity, and gun control [as] an act of legal castration”.

More fundamentally, he says I exaggerate the role of the US constitution in general. Creegan agrees that institutions like the Senate and Electoral College are racist and undemocratic. (What Marxist would say otherwise?) But, as for my contention that the constitution is a central driving force in the growing American political crisis, he says my arguments

… tend to lead the logical, not to mention the Marxist, mind to a series of overwhelming questions. Has the constitution, being rigid as it is, changed substantially since Lazare wrote his book about it, The frozen republic, nearly a quarter century ago, when the legal and social order was presumably more stable and less exhausted? If not, what has led us from this condition of relative stability to the near-terminal crisis conditions Lazare claims are now upon us? He surely would not argue that this transformation has come about as a result of tighter ballot restrictions or increased voter suppression. And why have the Republicans morphed from the middle-of-the-road party of Dwight Eisenhower into the far-right party of Donald Trump?

How can an unchangeable constitution, in other words, generate such tumultuous political change? Creegan goes on:

If Lazare wishes to argue that social contradictions have lately become too acute to be contained within the constitutional framework, the explanation must lie in the contradictions, and not the static framework.

Regardless of whether one accepts Lazare’s assertions that we are on the verge of total meltdown, logic would seem to suggest that we must look to other variables as the locus of explanation for a change as dramatic as the one he claims we have experienced in the last several decades. This underscores why Marxists are more inclined to look to such things as economic developments and the relation of class forces, rather than laws and constitutions, when they seek to account for major developments in society.

This is not the first time Creegan has made such an argument, by the way. He said more or less the same thing last March when he asserted that the current structure is so stable that is “highly unlikely in my view that even newly arisen authoritarian figures - Viktor Orbán, Andrzej Duda, Trump - will conduct a frontal assault on electoral democracy] …” He added:

The age of bourgeois-democratic revolution is long gone … a major conflict involving legal-juridical questions in and of themselves is difficult to imagine in a country with a developed economy and a formally democratic constitution.1

None of which says much for comrade Creegan’s powers of prognostication, since January 6 represented nothing if not “a frontal assault on electoral democracy” - not to mention a major conflict over legal-juridical questions that are supposedly safely in the past.

Creegan’s strategy is clear. Since he wishes to play down the question of constitutional structure, he feels he must denigrate the importance of January 6. Since I described it a few days after the event as “America’s most serious constitutional breakdown since the Civil War”,2 he must portray it as less: ie, “something in between a riot and a coup attempt”. Since the constitution is secondary, other factors must be primary - most notably race, sex and Trump himself.


All of which involve questions of vital importance. So let us start with the basics. The constitution was a 4,400-word document – 27 amendments have since expanded it to more than 7,000 - hammered out by a group of 55 merchants, lawyers and slave-owners in Philadelphia over a four-month period in 1787.

Several things about it stand out. One is its extraordinary age, dating as it does from the age of Louis XVI, Catherine the Great and Joseph II of the Holy Roman Empire. Another is its comprehensiveness: the fact that it has defined the boundaries of American law, politics and even philosophy ever since. A third is the obvious contradiction between the preamble and the amending clause set forth in article V. Where one says that “we the people” can do anything they want “in order to form a more perfect union”, up to and including tossing out old constitutions and installing new ones in their place, the second says the opposite: the same people are maximally constrained, when it comes to modifying a plan of government devised in their name.

Indeed, considering that the constitution is more than twice as difficult to amend today as it was in the 18th century, this means that a supposedly all-powerful demos is growing more powerless by the year. A fourth thing that stands out, meanwhile, is the text’s elasticity - the fact that judges and politicians have been able to shape and twist it in countless different ways despite its built-in aversion to change.

In terms of formal logic, the results were a mess, which is why the constitutional machinery would collapse 74 years later over a slavery question that it was unable to resolve. But the document gained a new lease of life thanks to the Civil War, the expropriation of the southern slaveholder class and the addition of three amendments between 1865 and 1870 that strengthened government, nationalised citizenship and installed a free-labour system from coast to coast. A vast industrial republic was thus born in blood and iron, not unlike Bismarck’s Germany. By 1900, it would displace Britain in terms of iron, steel and coal production and would possess half the world’s manufacturing capacity overall.

But the point is clear. However much Creegan prefers to concentrate on other factors, constitutional politics were as central to the industrialisation process as the Bessemer converter or the standardisation of rail gauges. The new order cleared away all enemies of the new order, it was 100% pro-capitalist, and it commanded the loyalty of virtually 100% of the population to boot. It was ideal from a bourgeois perspective and therefore what enabled capitalist expansion to take flight.

But another history lesson, if I may. The constitution gained a further lease of life during the great depression. With Republican jurists striking down one ‘new deal’ reform after another, Roosevelt threatened in 1937 to do to the Supreme Court what Asquith had proposed to do to the House of Lords in 1911: pack it with pro-administration liberals. If FDR’s court-packing scheme failed, it was mainly due to the court’s strategic reversal in a case involving a minimum-wage law that conservatives had long opposed. The constitution remained unchanged.

But with a previously hidebound Supreme Court suddenly emerging as a force for political change, the results were very different. The climax was the epic Brown v Board of Education desegregation ruling in 1954, which amounted to nothing less than “the ideological rebirth of America”, according to one legal scholar.3 It was proof - or so it was claimed - that bourgeois democracy could tackle the most fundamental political problems via a highly conservative concept known as the rule of law.

This, too, was central to an industrialisation process that was by now infinitely more extensive and complex. It was also central to “the volcanic eruption of American imperialism” that Trotsky had noted in 1940, since the effect was now to provide America with a mission civilisatrice, as it sought to impose US-style rule of law on the world at large. As Ran Hirschl of the University of Toronto noted in 2004,

Around the globe, in more than 80 countries and in several supranational entities, constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries … An adversarial American-style rights discourse has become a dominant form of political discourse in these countries. The belief that judicially affirmed rights are a force of social change removed from the constraints of political power has attained near-sacred status in public discussion … To paraphrase Alexis de Tocqueville’s observation regarding the United States, there is now hardly any moral or political controversy in the world of new constitutionalism that does not sooner or later become a judicial one.4

This turn to “juristocracy”, as Hirschl calls it, represents US imperialism’s export of the constitution’s most distinguishing characteristics - judicial review, separation of powers, democracy that is simultaneously all-powerful and powerless, and so forth. Once again, it is a process as central to globalised industrial production as the internet and container ships.

Socialists have spent the ensuing decades wrestling with the consequences, which have not been pretty. Needless to say, the transformation that Hirschl describes did not lead to a new democratic flowering, but the opposite: ie, an assault on labour organisations, from unions right up to the deformed or degenerated workers’ states of the former Soviet bloc; to new military offensives in the oil-rich Middle East; to the gutting of the welfare state; and to growing economic polarisation as well. By pitting bourgeois law against political democracy, the goal was to tie down political democracy Gulliver style, while legally entrenching global free-market capitalism.


None of this has been the least bit peripheral to either capitalist accumulation or the concomitant impoverishment of the working class. The same can be said for the constitutional breakdown that has been gathering speed in Washington since the mid-1990s: its role is central too. The breakdown has taken several forms:

The last has led to wars of interpretation over gerrymandering, campaign financing, gay rights and - most important of all - the second-amendment right to bear arms. Pace the American Civil Liberties Union, this is not the result of conservatives distorting the plain meaning of the text. On the contrary, it is the result of liberals trying to turn a pre-democratic plan of government into an instrument of modern reform.

So if Creegan wants to know how it is that “Republicans [have] morphed from the middle-of-the-road party of Dwight Eisenhower into the far-right party of Donald Trump”, this is a big part of the reason. With the miracle of reinterpretation running out of steam, the advantage has shifted to a right wing calling for a return to ‘original intent’. The ‘ancient constitution’, to use the Old Whigs term, has emerged as yet another means of tying political democracy down - indeed, of doing it so thoroughly that it never rises again.

This leads to what might be called the paradox of rigidity: the question, as Creegan puts it, of how a “condition of relative stability”, as far as the constitution is concerned, can lead “to the near-terminal crisis conditions Lazare claims are now upon us”.

The answer is obvious. Constitutional stasis is destabilising. As Engels noted in his critique of the German Social Democrats’ Erfurt programme in 1891, the workers’ movement, in “outgrow[ing] the old social order”, has no choice but “to burst this old shell by force, as a crab breaks its shell, and … smash the fetters of the still semi-absolutist, and moreover indescribably confused, political order”. Failure to burst the old shell, similarly, leads to a reversal of the process in the form of social regression and decay.

Jefferson said much the same thing in 1816, when he wrote:

… laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilised society to remain ever under the regimen of their barbarous ancestors.

Or as this writer put it in 1996,

It is impossible to forge ahead in the late 20th century using governmental machinery dating from the late 18th. Urban conditions can only worsen, race relations can only grow more poisonous, while the middle class can only grow more alienated and embittered. Politics will grow more irrational and self-defeating, while the price of the good life - that is, a nice home, good schools, a quiet street in a safe neighbourhood - can only continue its upward climb beyond the reach of all but the most affluent … Eventually every other society caught up in such a bind has snapped. Soon or later, the United States will as well. The stays have already begun to fray.5

All are variations on the same theme. Attempting to freeze modern society causes it to unravel all the faster. Efforts to ward off change guarantee that it will be all the more tumultuous, when it finally arrives. If ‘socialism or barbarism’ is ultimately the choice facing bourgeois society, then the failure to advance towards one all but ensures regression in the direction of the other.

This is not to say that industrial or economic factors are any less important. To the contrary, it means that they are combining with such issues as the constitutional breakdown, climate change, over-reliance on fossil fuels, etc in ways that are ever more explosive. The result is a perfect capitalist storm: a multi-dimensional disturbance that is proving to be even greater than that of the 1930s and 40s by virtue of being deeper and more complex.


As for Creegan’s other complaints, they derive from his fundamental misconception of the nature of the capitalist crisis. An example is his description of the January 6 uprising as “a haphazard affair that, although partly prepared for in advance, lacked a concerted tactical plan and had zero chance of success, because it was opposed by powerful state institutions, especially the armed forces”.

Political dynamics suggest otherwise. Since repeated court challenges had gone nowhere, January  6 emerged as Trump’s last-ditch effort to overturn the election results and gain a second term - and, based on the available evidence, he had a generally good idea of what that meant. A mob would descend on Capitol Hill, invade Congress and physically halt certification of the Electoral College vote. Whether a mob chanting “Hang Mike Pence” would actually string the vice-president up was unknown. But Trump was plainly unconcerned. When House Republican leader Kevin McCarthy telephoned to say that rioters were breaking into his office, this is why he reportedly replied, “Well, Kevin, I guess these people are more upset about the election than you are.” If a few office windows were of no consequence next to overturning an election, then a few bodies would not be either.

The goal, as I pointed out a few days after the uprising, was clear: to disrupt the proceedings, throw members of Congress off balance and create a vacuum of power, into which the president might step.6 Creegan scoffs at the idea that military leaders who had “pledged themselves to respect the election results” might surrender to “a ragtag mob of 5,000 without a central command - some of whom appear to be armed and determined, but more of whom seem to enjoy preening in front of TV cameras and taking selfies”.

But the brass would not have had to surrender. With Trump, house speaker Nancy Pelosi and Senate majority leader Chuck Schumer issuing conflicting commands, all it would have had to do was waver or hesitate, at which point the game of winning over the military to one side or the other would have been on. Creegan presumably believes that Democrats would still have had the advantage. But that does not matter, since the very fact that military was in play for the first time in US history meant that it would be in a position to determine who would rule. This would have amounted to a quasi-coup in itself.

Besides, what if Pelosi and Schumer had won the tug-of-war? Since all Marxists know that seizing power is one thing and wielding it quite another, what would they have done next? Would they have ordered the military to surround Congress with troops, so certification could proceed? Would they have cut Trump’s access to the internet and the airwaves and placed him under house arrest? The mind reels at the possibilities. But the idea that the president might come out on top amid the general shock and confusion should not be dismissed out of hand. After all, if there is one thing we know about Trump, it is that his political skills are not to be underestimated.

Breakdowns and coups march hand in hand because, the deeper one goes, the greater the likelihood of someone grabbing the reins in the hope of restoring order. Since it is usually unclear who has proper authority in such circumstances (or whether proper authority exists at all), any such effort usually raises more questions than it can resolve. Washington dodged a bullet on January 6 by getting its house back in order again in a relatively short period of time. But, the more the constitutional crisis intensifies, the greater the likelihood that outright constitutional collapse will ensue and hence political authoritarianism as well.

Wider perspective

Three of Creegan’s other arguments warrant attention at this point. One involves fascism, which I supposedly believe is imminent - “even though,” as he puts it, “the working class is not ‘on the march’, and the American bourgeoisie has no need of fascists to break its power”. But I never said any such thing. While noting that the political crisis is generating “quasi-, neo- or proto-fascists” in growing numbers, even though there is no revolutionary working class threat at hand, I specified that such elements are not truly fascist, since “The ultra-right has not yet adopted an expressly anti-democratic position”. But, I said, that will follow, “the more the larger system breaks down”.

All this means is that the sequence has changed from the 1920s and 30s and that, if successful, Trump’s coup would have amounted to an authoritarian takeover, in which semi-fascist elements play no more than an ancillary role. But, since the crisis would no doubt have continued to escalate, fascism would have continued to grow, both in quantity and quality. As for the military, given that it would then face a Hobson’s choice between kowtowing to Trump or rebelling against him, the possibility cannot be dismissed that it would eventually acquiesce.

Another Creegan argument that warrants attention is that of white male “status anxiety”. The point is completely off-base. Certainly, some individuals may view guns as “an emblem of masculinity”. But if Creegan really wants to know why ultra-rightists “defend their second amendment right to bear arms” so fervently, then why not start with the second amendment itself? Indeed, a copious academic literature has taken shape since the 1980s, arguing two points:

  1. that it confers a more copious right to bear arms than liberals have been willing to admit; and
  2. that its 27 words imply a concept of participatory government very different from the representative government, with which the constitution is usually identified.

The issue is of growing importance. Just as ordinary citizens should not limit themselves “to casting ballots once every two or four years for those very few individuals who will actually make the decisions”, but, rather, should also fulfil the duties of citizenship in between elections, then the theory holds, as one constitutional scholar puts it, that “so should ordinary citizens participate in the process of law enforcement and defence of liberty rather than rely on professionalised peacekeepers, whether we call them standing armies or police”.7

This is a concept of neighbourly, face-to-face government going back to the New England town meeting and the embattled farmers who fired “the shot heard round the world” in Concord, Massachusetts, in 1775 - a shot, by the way, fired in defence of a communal arsenal against British advocates of gun control. What the right to bear arms represents, therefore, is less white-male sexual assertion than a localist, organic concept of government that views with askance the ‘tyranny’ emanating out of distant Washington. Storming the Capitol in the name of the people - defined as white male property-owners, just as they were in the 18th century - is the logical outcome.

Finally, there is Creegan’s third argument: that of Trump’s special malignancy. This is yet another example of building up one factor in order to downplay another. Yes, the former president has a casual attitude toward the truth. Yes, he has raised liberal-baiting to an art form. Yes, his public comments have grown increasingly authoritarian, as the political crisis has progressed. But, while Creegan continues to reject the theory of ‘lesser-evilism’, his belief that “Trump’s lies … were more numerous and blatant than those of the Democrats”, and that “his open appeal to xenophobia and white racism” was even “more pernicious”, amount to more or less the same thing: ie, that Democrats are the lesser evil after all.

But the situation looks very different if we step back and view it from a wider perspective.

What, for instance, is the difference between lauding fine people on both sides in Charlottesville, Virginia, and handing out cookies to neo-Nazis in Kiev; or recommending that Arseniy Yatsenyuk, Washington’s hand-picked choice as Ukrainian prime minister, speak “four times a week” with Oleh Tyahynybok, leader of the fascist Svoboda Party and a man notorious for raging against “Muscovites, Germans, Jews, and other scum who wanted to take away our Ukrainian state”? What is the difference between defending Confederate monuments and defending the absolute autocracies of the Persian Gulf (something Obama did as much as Trump and something that Joe Biden is now doing as well)? What is the difference between making nice to David Duke and engaging in stepped-up sword-rattling vis-à-vis Russia and China? Between advising the Proud Boys to “stand back and stand by” and allowing the Persian Gulf oil monarchies to arm Al Qa’eda and Islamic State on Washington’s behalf?8

The point is that, while Democrats make liberal noises at home, they are every bit as reactionary and bellicose abroad - if not more so, thanks to Biden’s vows to get tough with Russia. Creegan concedes that “Democrats hugely exaggerated claims of Russian interference in the 2016 election and promoted bogus accusations of collusion between the Trump campaign and Putin.” But he fails to mention that Russiagate dominated the news cycle for two and a half years and was clearly aimed at driving Trump out of office. So it is not a case of one lie versus many, but of a classic destabilisation campaign versus countless fibs that, for Trump, were little more than a verbal tic.

So Democrats are not the lesser evil after all. Creegan’s truncated view of the US crisis is driving him deeper and deeper into reformist territory.

One could go on, but the point is clear. The structural crisis is real and profound. Given the way US imperialism is imposing American-style constitutionalism on the world at large, it is no longer one country’s problem, but that of the globe in general. Late capitalism has created a hyper-legalistic international environment whose purpose is to check political democracy whenever it infringes on free markets. The more such markets advance, the more crippled democracy must become.

But socialists should not avert their eyes, now that the structure is finally beginning to crumble. Rather, they should study and analyse it in order to prevail in the coming struggle for power.

  1. ‘Overdrawn lessons’ Weekly Worker March 26 2020.↩︎

  2. ‘Trump’s “march on Rome”’ Weekly Worker January 14 2021.↩︎

  3. Austin Sarat, quoted in R Hirschl Towards juristocracy: the origins and consequences of the new constitutionalism Cambridge, Mass 2004, p149.↩︎

  4. Ibid p1.↩︎

  5. D Lazare The frozen republic: how the constitution is paralyzing democracy New York 1996, p5.↩︎

  6. ‘The meaning of January 6’ Weekly Worker February 4 2020.↩︎

  7. S Levinson, ‘The embarrassing second amendment’ Yale Law Journal No99 (1989): digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=7254&context=ylj.↩︎

  8. Secretary of state John Kerry told a group of pro-rebel Syrian exiles in September 2016 that the US goal was to use IS as a lever with which to remove Bashar al-Assad. As he put it, “Daesh was threatening the possibility of going to Damascus and so forth, and that’s why Russia came in, because they didn’t want a Daesh government and they supported Assad. And we know this was growing. We were watching. We saw that Daesh was growing in strength, and we thought Assad was threatened. We thought, however, we could probably manage, that Assad might then negotiate. Instead of negotiating, he got … Putin in to support him. So it’s truly complicated” (youtube.com/watch?v=e4phB-_pXDM&t=1575s).↩︎