Blame the Constitution for political 'dysfunction'

There is a predictable pattern in U.S. politics: Ambitious legislation gets watered down or blocked, while the courts use judicial review, which isn’t in the Constitution, to throw out new laws. Emboldened presidents then go around Congress by issuing executive orders.

When new laws are blocked by legislators, the majority is told to compromise with the minority, who are outnumbered and do not want change, in order to get anything done. Nothing seems to work like it should. Or does it?

Every crisis, from climate catastrophe to income inequality, has continued for decades without resolution. We blame everything for these big problems except the cause — the Constitution.

If nothing seems to change, it is because, as I show in my new book "We the Elites: Why the US Constitution Serves the Few," the Framers designed the Constitution to resist change that serves the economic majority.

In the Federalist Papers, Alexander Hamilton spoke for his fellow elites, the economic minority who owned most of the wealth at the time. “If a majority be united by a common interest, the rights of the minority will be insecure,” he warned. Years before the Constitution was even written, many other “Founding Fathers” (I prefer Framers) including George Washington and James Madison, were already bemoaning the dangers of majority rule.

During the Revolutionary War, nearly all the state governments wrote new, more democratic constitutions in response to organized pressures from below. While modestly more democratic, elites called the states anarchic, tyrannical and dangerous. The reason? They gave more opportunity to everyday people to vote, get elected to local and state office, and to change the laws to serve the interests of the economic majority.

As a result, many states passed debt relief, issued paper money that could be used to pay debts and taxes and attacked price gouging. The Framers, in turn, denounced these changes as threats to property by a tyrannical majority.

The Revolution emboldened many ordinary small farmers, laborers, Indigenous people and enslaved people to take militant political action. The elites answered these threats by replacing the decentralized Articles of Confederation with the Constitution in 1787.

Despite what we learn in school, the Constitution’s “checks and balances” empower the minority to check the majority. Because those who want to enact change have to win at every step in the legislative, judicial and administrative process it means that a single loss can defeat the effort.

In effect, elites win by using what I call “minority checks” to block change. The 55 wealthy white Framers wrote the Constitution to serve elite interests by making it easy to block any change that threatens their interests. They also made it nearly impossible for the economic majority to make change because, as John Jay wrote in an 1810 letter, “Those who own the country are the most fit persons to participate in the government of it.”

Beginning with slavery, property is well-protected — both directly and indirectly — in the Constitution. Any change to the economy is automatically unconstitutional unless, as the Fifth and 14th Amendments require, due process and just compensation for property are provided.

These minority checks assure that no systemic changes that threaten the fundamental protections for property can occur.

It is not possible to make lasting change when the rules of the system are designed to constrain political democracy and prevent economic democracy.

The Constitution is written to be nearly impossible to amend. Only 27 of about 10,000 proposed amendments — or one-fourth of 1% — have ever been ratified.

Pressures from disruptive organized movements from below have periodically forced elites to make reforms. But those reforms are usually designed to serve elite interests, such as heavily regulating worker organizing and all but banning strikes, watered down or later reversed.

Making change requires that we go outside and around the system and design a new system controlled by the economic majority who owned little to no wealth at the time.

If democracy is to survive, we must change both our political and economic systems. Because the Constitution protects property and prevents economic justice, it’s time to get past the Constitution.