Donald Trump’s second term has generated a constitutional crisis. In the span of just two years, Trump has won immunity for essentially all presidential acts, including attempted election-rigging; pursued a series of more-or-less explicit quid pro quo corruption schemes on a scale and transparency once unimaginable (the inauguration fund, the alleged sale of presidential pardons, the slush-fund crypto empire, to name just a few); unleashed squadrons of poorly-trained, masked goons in unmarked cars who are effectively encouraged to murder people in the streets to generate viral content for executive branch social media accounts; launched a war against Iran without Congressional approval, which he openly describes as mere semantics; implemented an overly politicized domestic anti-terrorism strategy against his political enemies that has already resulted in hundreds of years of prison sentences for conduct as innocent as moving leftist literature; and withheld billions in Medicaid funding from Democrat-controlled states on spurious fraud claims. The list could go on. Any one of those outrages could have constituted the moment episode of a “normal” presidency. Yet Trump appears unlikely to slow down.
Equally shocking has been the established order’s failure to withstand Trump. Civics education in the United States generally instructs students that the Framers designed the Constitution’s “checks and balances” to prevent exactly this kind of megalomaniacal executive. That understanding frames the resistance to Trump of everyone from the “never Trump Republicans” of The Bulwark crowd to Elizabeth Warren-style progressives.
Given everything that has taken place, how should socialists understand the Constitution? Is it a covenant with heaven handed down to us from posterity? Are Trump’s excesses punishment for our insufficient belief in and practice of the Framers’ creation? Or does the document enable the plutocratic order whose pro-oligarchy policies are the substantive core of Trump’s presidencies?
As Marxists, we recognize that the truest foundation and most explanatory feature of any social order is its mode of production and the relationships between the classes—defined by their positions vis-à-vis the means of production—who constitute that order. But analysis of the social order does not end there. The political order in the United States is built also on a legal order defined by the structures outlined in the Constitution. Given its centrality in the construction of the social order, the Constitution’s transformation amounts to a sine qua non of democratic revolution.
This article introduces the United States Constitution as a central site of struggle for democratic government—of the people, by the people, and for the people. It also identifies which parts of the Constitution are the greatest obstacles to a better world.
The Constitution’s Structural Provisions
When they hear the word “Constitution,” many Americans, including many socialists, think of the rights enshrined in the Bill of Rights—the rights to free speech and assembly, the right to be free of unlawful searches and seizures, the right not to testify against oneself, the right to due process, etc. These rights are vital and are critical demands of any socialist project. However, this focus overlooks the Constitution’s structural provisions, which define how our government works, including and especially how American politics convert, or fail to convert, popular policy preferences into government action.
The Constitution’s structural provisions impede democratic decision-making, shelter important policymakers from accountability, and unfairly empower the nation’s smallest, least demographically representative states. These characteristics are neither inadvertent nor value-neutral; instead, they provide socio-economic elites multiple tools to veto policy favored by popular majorities, exactly as the Framers intended. At the same time, these elites have developed mechanisms to push reactionary policy through aspects of the system that are especially anti-democratic, such as the Electoral College, presidential veto, executive order power, and judicial review.
Article I addresses the Legislature, Article II the Executive, and Article III the Judiciary. Each of these three structural articles contains critical limitations on democratic governance while providing elites with tools to implement their own demands.
Article I: The Senate Gives Elites a Veto over Legislation
The Constitution’s first article provides for a bicameral legislature; that is, a legislature composed of two independent bodies with a shared responsibility to pass legislation. The United States is an outlier in this regard: two-thirds of countries have just one national legislative body. Americans are taught that the oddity of providing two bodies with overlapping rulemaking powers is a product of the Framers’ genius checks-and-balances design. In fact, its purpose and effect are sinister and not salutary.
Historically, bicameralism has functioned as a check on the power of democratic majorities. Upper houses were generally appointed by the monarch or else consisted of positions held by nobility and passed on to their heirs. These bodies, such as the United Kingdom’s House of Lords, had the power to veto actions taken by their corresponding democratically elected “lower” houses (in Britain’s case, the House of Commons). As nations have democratized, most bicameral arrangements have evolved into true or pseudo-unicameral systems. Six of the eight bicameral states in Europe are weakly bicameral, in the sense that the upper chamber has lost its power to veto the lower chamber’s actions. This happened, for example, when the House of Lords lost parity with the Commons in 1911.
In our context, bicameralism serves the same anti-majoritarian purpose as it once did in constitutional monarchies. But also has a more idiosyncratic purpose: giving small states disproportionate power over national decision-making. Unlike most of those constitutional monarchies, however, American bicameralism has not evolved in the pseudo-unicameral direction. Rather, the Senate retains not only its power to veto actions taken by the House but also retains special privileges—such as the power to confirm judicial and executive branch nominees and to decide impeachment—that the House does not have and over which it exercises no control.
How does our bicameral system work? Article I provides that, while representation in the House is proportional to the population (i.e., each representative represents roughly the same number of citizens), representation in the Senate is determined at the state level: each state is entitled to two senators, regardless of its population. Thus, Wyoming’s 600,000 residents have the same number of senators as California’s 40 million. This arrangement gives each resident of Wyoming about seventy votes in the Senate for each Californian’s one vote.
The structural imbalance of apportioning power based on states rather than people consistently creates anti-majoritarian Senates. Almost a quarter of the Senate is elected by twelve states whose combined population is less than 5% of the national population. Between the 65th and 99th Congresses, seven out of thirty-four Congresses contained senatorial majorities composed of senators representing a minority of American citizens. In other words, Congress is patently non-majoritarian more than 20% of the time.
This unrepresentative arrangement is not policy-neutral. Fifteen out of twenty-five least populated states are reliably Republican, two are swing states, and eight are more or less reliably Democratic. This means that Republicans are structurally favored by the disproportionate representation afforded to less populated states. This arrangement is also wildly unfair from a racial standpoint, as small states in the United States are disproportionately white compared to the national population.
In addition, small-state senators generally have smaller, more uniform constituencies with strongly aligned political interests. Thus, they exercise outsized authority over issues of interest to them. While New Yorkers, for example, have a strong interest in national agricultural policy, a senator from Iowa exercises far greater control over agricultural issues than does a New York senator because agricultural issues are disproportionately more important to Iowans than to New Yorkers. An Iowa senator can trade away their vote on urban issues, which are of less significance to their voters, while a New York senator must account for urban issues while also trying to win favorable agricultural policy.
If the Senate were merely a ceremonial body like the House of Lords, its anti-democratic nature would be a historical curiosity. Unfortunately, no bill can become law unless it is approved by the Senate in the same form as the House. In other words, the Senate has a veto over the House’s actions. To say this has real-world implications is to undersell its centrality to all national policymaking. To take a recent example, the House passed the Build Back Better program, which contained substantial social investments: universal pre-K, paid family and medical leave, and free community college, among others. The bill died in the Senate and was reworked into the Inflation Reduction Act, which consisted primarily of tax breaks and investment incentives to accelerate green investment and contained none of Build Back Better’s social programs.
The Senate also has exclusive authority to approve presidential nominations to executive offices and judicial seats and to approve treaties. The House plays no role whatsoever in approving these appointments, leading to lasting damage. For example, Clarence Thomas was appointed to the Supreme Court in 1991 after the Senate voted 52 to 48 to approve his nomination. The 48 votes against Thomas’ nomination represented 52% of the US population. With this undemocratic appointment, the Republicans stole one of just nine Supreme Court seats for more than thirty Years. Not only does the Constitution establish the Senate as a profoundly undemocratic body, but it prohibits the population from ever remedying this situation. Article V, which provides the process for amending the Constitution, contains an exception to the process for constitutional amendments: “No State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” In other words, Wyoming shall be entitled to Senate representation equal to California’s, regardless of their disproportionate populations, unless Wyoming decides to allow California to be fairly represented in the Senate (i.e., to have more Senators than Wyoming). We should not hold our breath.
Article II: The Imperial Presidency
Perhaps no aspect of the Constitution has experienced “mission creep” to quite the degree as the Presidency. American presidents have exploited Article II’s vague language creating the executive branch to greatly expand the scope and nature of Presidential power. Article II’s anti-democratic provisions fall into two categories: the undemocratic manner of electing the President via the Electoral College and the President’s ill-defined and potentially unlimited powers.
The Electoral College is perhaps the most peculiar aspect of the United States Constitution. No other nominally democratic system has anything like it. The US President is neither directly elected by the population, as, for example, the President of France, nor chosen by members of the representative legislative body, as is the Prime Minister of the United Kingdom. Instead, the President is chosen by a group of electors, called the Electoral College, who are chosen through processes that differ from state to state. If no candidate wins a majority of the Electoral College votes, the matter is decided by the House of Representatives, but on a one-state, one-vote basis.
This process frustrates majoritarian rule in multiple ways. First, states are allotted Electoral College electors based on their Congressional representation (i.e., by adding the state’s number of Senators to its number of Representatives in the House). As in the Senate, this system undemocratically favors small states, which are disproportionately whiter and more conservative. Only five states have Electoral College allotments proportional to their share of the national population—the 45 other states are either over- or underrepresented. Next, except in Nebraska and Maine, every state awards all its Electoral College votes to whichever candidate wins the popular vote in that state. Thus, votes for the losing candidate in a state are, in effect, uncounted; this phenomenon is well-known to voters and has the effect of depressing turnout, which depresses overall political engagement, an especially important consideration for progressive causes whose supporters are less reliable voters than are conservatives. In a political system in which presidential elections are many voters’ only engagement, this winner-takes-all, first-past-the-post arrangement demobilizes large segments of the population, favoring reactionary policies favored by the older, whiter, and wealthier voters who are the nation’s most reliable voting demographic.
These aspects of the Electoral College system have repeatedly resulted in anti-democratic presidential elections. For example, Republicans have won three of the past six presidential elections; in two of those, they lost the popular vote but won the Electoral College, as happened in 2016 when Trump won the Electoral College but lost the popular vote by more than three million. Indeed, 20 of 46 US presidential elections (43%) have been won by a candidate who either lost the popular vote, won a plurality but not a majority, or was appointed by the House of Representatives. In 2000, for example, Al Gore won New Mexico and earned five electoral college votes. He lost Wyoming, Alaska, and North Dakota, losing a combined nine electoral votes despite New Mexico’s having a larger population than the other three states combined.
If neither candidate wins a majority, the House chooses the President, voting on a one-state, one-vote basis instead of its representative basis. This happened in 1800 and 1824. It almost happened in 1992, when Ross Perot attracted nearly enough votes to deprive both Clinton and Bush of a majority.
Once elected in this anti-majoritarian manner, the President enjoys significant and ill-defined powers. Prominent among these are the right to veto legislation, to drive the nation’s foreign policy, to issue executive orders, to oversee the executive branch’s implementation of Congressionally-passed legislation, to nominate judges and heads of executive agencies, to pardon federal crimes, and, most troublingly, to do virtually anything they decide is necessary to respond to so-called “emergencies,” which the President has unilateral and unchecked power to declare.
Article II empowers the President to veto legislation passed by Congress, which veto can be overturned only by a supermajority of both houses. The presidential veto has been used frequently—2,584 times in American history (by comparison, SCOTUS has invalidated just 160 laws)—and is almost always effective: only 112 (4%) of these 2,500-plus vetoes have been overridden. That’s a 95% success rate for the veto of the legislation that manages to slip past the anti-democratic Senate. Among countries with an executive veto, only Cyprus has a higher veto success rate, and that’s because Cyprus doesn’t have an override procedure.
Not only can the President unilaterally prevent the passage of legislation, but they can also take pseudo-legislative actions through the issuance of executive orders. Presidential records identify 14,036 such executive orders, but historians estimate that as many as 50,000 have been issued in total. Illustrative examples of executive orders include the order interning Japanese-Americans in concentration camps during World War II and Trump’s ban on Muslim travel and immigration to the United States.
Presidents also have the unbridled and irreversible power to pardon violations of federal law. This power has been used repeatedly to evade consequences for some of the most anti-democratic behavior in US history. Gerald Ford pardoned Richard Nixon for crimes related to the Watergate scandal, which was an effort to undermine the Democratic Party’s presidential campaign that involved breaking into the Democratic Party’s headquarters (Nixon was reelected). H.W. Bush pardoned high-ranking officials involved in the Iran-Contra scandal, in which the CIA and others circumvented Congress’ explicit prohibition against further aiding the anti-Sandinista Contra rebels in Nicaragua (some of the most bloodthirsty reactionaries in the history of Central America). Trump pardoned Paul Manafort, Michael Flynn, Roger Stone, and other members of his coterie for offenses they committed while serving his campaign and administration—including multiple counts of lying to investigators and Congress during investigations of Trump and his administration. Each of these represents a major setback for the prospects of real accountability for misbehavior at the highest levels of our government, weakening democratic control and accountability.
The President nominates not only positions within the executive bureaucracy but also federal judges at every level. Both require approval by only the Senate; the House plays no role in these processes. Presidents, especially Trump, have also found ways to circumvent even the Senate’s approval by making recess appointments (i.e., appointments while Congress is in recess) and “interim” appointments, both of which allow the appointee to exercise the powers of an approved leader without Senatorial oversight. Trump has become notorious for this practice, at times employing an upper-level executive branch composed primarily of appointees circumventing Senatorial confirmation.
The Constitution provides almost no limits on the President’s foreign policy powers. Presidents have circumvented the provision giving Congress the exclusive right to declare war by intervening without formally declaring war, which Congress has not done since World War II. The United States has intervened, either militarily or politically, to effect or attempt regime change in at least the following countries without Congress’ having declared war: Korea, Guatemala, Iran, Syria (multiple times), Vietnam, Cambodia, Laos, Haiti (multiple times), Ecuador, Congo, Chile, Lebanon, Iraq (multiple times), Grenada, Libya (multiple times), Nicaragua, Somalia, Afghanistan, Egypt, and Pakistan. And this is just the post-World War Two list. Presidents from both parties have used the vague Authorization for the Use of Military Force, passed in the wake of 9/11, as justification to bomb dozens of countries, spending $8 trillion in the process.
Similarly ill-defined is the open-ended notion that the reference in clause 1 of section 1 of Article II to “the executive power,” which is not defined anywhere in the Constitution, grants the President the power to do whatever they deem necessary (to what end is unclear) in times of exigency or emergency. This provision gives the President carte blanche to undertake whatever actions they unilaterally deem necessary to respond to the emergency they themselves declared, and which no one can countermand. This threat is not theoretical: Jefferson acknowledged his Louisiana Purchase was unconstitutional and explicitly justified it by referencing his alleged executive prerogative; Lincoln used a similar justification to suspend habeas corpus at the outset of the Civil War; and Bush’s attorneys used it to justify the government’s torture program, which violated binding treaties that the US has signed. Given the level of rhetoric about the alleged border crisis, it is likely only a matter of time before a President takes clearly unconstitutional actions under the guise of addressing the “emergency” at the border.
Scarier still, the President is essentially beyond recall. In many other democratic states, the executive is subject to recall by a parliamentary majority. This is why Liz Truss lasted less than two months as UK Prime Minister. In the United States, by contrast, the only mechanism for removing an incompetent or unpopular President is the impeachment process, which requires not just a majority vote in the House but a supermajority vote in the Senate. No American President has been removed via this process—not Andrew Johnson, Richard Nixon, or Donald Trump. Remember that Trump led the January 6 insurrection, an attempted coup, while in office and yet wasn’t removed via the impeachment process.
Article III: The Supreme Court As Dictatorship-by-Council
Article III provides the framework for the federal judiciary, and its provisions for the judiciary are rather limited: it provides for the creation of a Supreme Court of undefined size, empowers Congress to create lesser federal courts (i.e., district and Circuit courts), provides for lifetime appointment of federal judges, and empowers Congress to recall judges via the impeachment process. While the Constitution does not explicitly grant the Supreme Court (“SCOTUS” for short) this power, SCOTUS awarded itself the power to review and invalidate state and federal laws, regulations, and actions soon after ratification of the Constitution, rendering SCOTUS the ultimate arbiter of all Constitutional questions.
The first anti-democratic aspect of the federal judiciary is its membership. Judges are nominated by the President, who is not democratically elected, and approved by the unrepresentative Senate. Fully 24% of the federal judiciary, including three of the nine SCOTUS justices, was nominated by Trump during a term in which he lost the popular vote. Four of nine current Supreme Court justices—Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were confirmed by a Senate majority that collectively won a minority of the popular vote in Senate elections and represented less than half of the American population. By contrast, many state judges are popularly elected in regularly recurring elections. Five SCOTUS judges—Gorsuch, Kavanaugh, Barrett, Alito, and Roberts—were nominated by presidents who lost the popular vote (while Alito and Roberts were nominated by George Bush during his second term, it’s unlikely he would have won the 2004 election without the incumbency advantage he “won” in the 2000 election).
Once appointed via this undemocratic process, federal judges serve for life, subject only to the near-impossible standard of impeachment. Lifetime appointments lead to judges who remain on the bench until they are literally on their deathbeds—more than 90% of district and circuit court judges die within a year of full retirement. And the problem is getting worse: before 1971, the average tenure for SCOTUS judges was around 10 years. The average tenure for SCOTUS judges between 1971 and 2005 was 26 years. Justice Thomas was appointed in 1991, more than thirty years ago. Moreover, presidents are becoming ever more open about appointing judges to solidify their grip on power and policy, leading to the selection of younger and younger judges: Amy Coney Barrett was appointed at 48, Brett Kavanaugh at 53, and Neil Gorsuch at 50. By contrast, Thurgood Marshall was 59, and Earl Warren was 62. Combined with the longer average life span, Trump’s appointees could end up serving for four decades (or they’ll time their departures to ensure their replacement by another conservative Republican). Nor is impeachment a real threat: no SCOTUS justice has been successfully impeached, and only eight federal judges (out of thousands) have been removed from the bench.
While judicial review is not explicitly provided for in the Constitution, SCOTUS granted itself the power to demand or reject government action, including legislation, as unconstitutional in its 1803 Marbury v. Madison decision. This power is essentially unlimited: couched as authoritative interpretations of the Constitution, SCOTUS’ decisions are essentially beyond review except by subsequent iterations of the Court itself (as explained below, amending the Constitution to reverse a SCOTUS decision is essentially impossible).
Judicial review, within the context of the American system, renders SCOTUS, in essence, a college of bishops beyond democratic control who can cite the holy scripture, the Constitution, to invalidate the will of the majority on any given issue. Their reasoning is obscure and beyond practical challenge; they work by interpreting pithy, often vague language passed to us by long-dead authors and robe themselves in an aura of timeless wisdom and erudition. SCOTUS has recently begun abandoning any pretense at accountability, increasingly deciding matters without so much as providing the reasoning supposedly informing the decisions, via the opaque “shadow docket.”
SCOTUS decisions have affected and prevented some of the most important changes in American history. The Lochner Era, as the jurisprudential era immediately preceding the New Deal is commonly known, illustrates this dynamic. Before the New Deal, and especially before the Civil War, the role of the federal government was extremely limited. During the Lochner Era, the Supreme Court invalidated a series of laws passed by Congress to improve the lives of the working class. Starting with invalidating the US’s first income tax, SCOTUS rejected both state and federal laws on issues such as limits on the hours of work in a day; prohibition on yellow dog contracts (i.e., requiring employees, as a condition of employment, to sign an agreement that they would not join a union); limits on child labor; a law exempting unions from anti-monopoly laws; minimum wage legislation; and various anti-monopoly laws.
The Lochner court’s extreme application of laissez-faire principles ended only when President Roosevelt threatened to pack the court with appointees more favorable to his legislation. While all of these decisions have been overturned, they remain frightening: the Constitution and interpretive principles applied by the Lochner Court are materially identical to the current Constitution and Supreme Court practice. Other than subsequent SCOTUS precedent, there is nothing to prevent SCOTUS from returning to Lochner Era principles. As we have seen from the Dobbs decision, which overturned Roe, the current iteration of SCOTUS has little compunction about overturning long-established precedent.
In recent years, the Court has issued many far-reaching and structurally impactful decisions that strike at the heart of the already-limited democratic aspects of American society and government. For example, in 2010, SCOTUS built on an earlier decision (Buckley v. Valeo) which held that political donations constituted free speech, and issued the Citizens United decision that invited essentially unlimited money into American elections. The $14 million spent by a single Zionist Political Action Committee to replace Jamaal Bowman with an empty suit is a direct result of this decision.
As expected before Citizens United, these decisions have facilitated an explosion in political spending by unaccountable and unidentified elites. In contrast to traditional political action committees (PACs), so-called “Super PACs” can spend unlimited money, so long as it isn’t directly coordinated with a candidate’s campaign. While Super PACs have to disclose their donors, many of those donations come from “dark money groups,” which are not required to disclose their donors. Thus, the donor could be identified as “Americans for Ayn Rand Thought” and be funded by a single individual, say Elon Musk. The Super PAC would identify “Americans for Ayn Rand Thought” in its disclosures, but Americans for Ayn Rand Thought would not need to disclose its donors. Thus, we would have no idea where the Super PAC’s money actually came from. Dark money spending exploded in Citizens United’s wake: from less than $5m in 2006 to more than $300m in 2014. Between 2010 and 2018, Super PACs spent $2.9B on federal elections. The overwhelming majority of this money, 78%, came from just 100 donors. There is simply no way for regular, working people to compete with this level of spending.
SCOTUS issued another devastating decision in its 2013 decision in Shelby County v. Holder, in which SCOTUS invalidated the Voting Rights Act’s pre-clearance requirement for states with a history of racialized disenfranchisement of voters. Under the VRA as it then existed, states that had historically engaged in widespread racialized voter disenfranchisement could not change their voting and elections rules (even federal elections are governed by state voting laws) without first having their proposals approved by the federal Department of Justice. Congress reauthorized the VRA in 2006, just seven years before Holder. Ignoring Congress’ recent reauthorization of the law, SCOTUS unilaterally concluded that the VRA’s pre-clearance requirement was no longer necessary as, in SCOTUS’s view, the affected states no longer engaged in voter disenfranchisement. Structurally, Holder exemplifies SCOTUS’ willingness to substitute its own judgment for that of the elected Legislature: it simply decided that Congress was wrong on the political question and vetoed Congress’ decision to reauthorize the law. Substantively, Holder was, in the words of Ruth Bader Ginsburg, the equivalent of throwing away one’s umbrella in a rainstorm because one had not gotten wet and, on that basis, concluded the umbrella was unnecessary.
The results have been dramatic. Within 24 hours of the ruling, Texas announced its intent to enforce a voter ID law, with Mississippi and Alabama following suit soon after that. Notably, enforcement of these laws had been blocked by the DoJ before Shelby County. Texas also pursued the implementation of redistricting maps that had similarly been prevented from enforcement by the DOJ approval. The Brennan Center for Justice has identified more than twenty-nine anti-voting laws passed by states previously covered by the VRA in the ten years since Shelby County. Note that the number twenty-nine understates the scope of the problem: many of these bills are omnibus, meaning they contain a collection of restrictions. This situation is about to get a lot worse—late last year, the Eighth Circuit invalidated the VRA’s private right of action provision—stripping private parties of the power to bring suits under the VRA. Since 92% of VRA suits are private suits, the decision, which is almost certain to be upheld by SCOTUS, is devastating to the protection of voting rights under the VRA. Of course, SCOTUS intervenes in US elections in multiple ways, including choosing the President in the 2000 election, and is likely to do so again.
SCOTUS’s bad decisions are not limited to the electoral realm. It also has a hideous record of infringing on union rights. In 2018, SCOTUS decided in Janus v. AFSCME that the agency fees public unions charge their employees they represent to fund the work they do on the employees’ behalf violate employees’ free speech rights. In other words, the decision allowed employees who benefit from the union’s negotiating and litigating on their behalf to do so without paying for that work. While the union is legally required to provide these benefits to all employees in their bargaining units, regardless of whether those employees choose to join the union, Janus means that employees may now opt out of paying for these services, dealing a significant blow to union finances.
In 2023, SCOTUS exacerbated the situation facing unions in Glacier Northwest, deciding that employers can sue striking unions for the losses caused by strikes. In that case, the employer sued the union to compensate the employer to recover costs associated with the value of concrete lost when workers went on strike while their concrete trucks were still spinning the concrete. Despite their taking reasonable steps to time the start of their strike so as to enable the employer to save the concrete, the employer wasn’t able to save all of it and sued the employees’ union for the money the employer lost. SCOTUS found in the employer’s favor, providing a vague standard that may render all unions liable for all losses incurred by employers as a consequence of strikes. Given that the very purpose of a strike is to impose economic consequences for an employer’s mistreatment of its employees, this decision could eviscerate the right of employees to strike.
Things are about to get much worse. Through organizations like the Federalist Society, reactionaries are pushing to reverse the limited social progress that American society has witnessed over the past fifty years and to exacerbate the neoliberal trend towards reduced regulation of business and increasing inequality. SCOTUS has introduced flimsy rationales, such as the Major Questions doctrine, to prevent regulatory agencies and other parts of the executive branch from implementing statutory law in anything but a literal manner. Given the unlikelihood of effecting significant change through Congressional legislation, this doctrine may suffice to render the federal government effectively non-functional.
SCOTUS has also pushed progressive amendments in a reactionary direction. A substantial and growing percentage of 1st Amendment cases involve business speech “rights” rather than those of individuals. As of 2015, 40% of First Amendment cases considered by SCOTUS involved corporate speech rights, such as arguments that required safety disclosures violate the First Amendment, requirements that corporations provide abortion care in their employee health care plans violate the religious rights of corporations, and other absurdities. In another arena, SCOTUS is perversely using the 14th Amendment’s guarantee of equal treatment by the government as a means to prohibit governmental action to remediate past racial discrimination. In 2023, in Students for Fair Admissions v. Harvard, SCOTUS invalidated the vestiges that remain of college affirmative action programs (except, of course, military academies) under the premise that they violate the 14th Amendment, the very amendment introduced to start the process of remedying the history of racial enslavement in this nation.
Article V: The Baby Must Be Thrown Out with the Bathwater
As if all of the above weren’t bad enough, there is essentially nothing that can be done about any of it. Our Constitution is the most difficult to amend in the world. It provides two avenues for change, both of which are practically impossible. The first option is for two-thirds of the House and Senate to agree to an amendment, followed by ratification by three-fourths of the states—either by their legislatures or via constitutional conventions. The second option is for two-thirds of state legislatures to agree to an amendment, followed by ratification by three-fourths of the states. This three-fourths requirement means that any constitutional amendment can be vetoed by a group of thirteen states. And remember that many of the states have similarly anti-democratic bicameral legislative bodies (gerrymandering is often worse at the state level, for example).
Of approximately 11,000 attempts to amend, only twenty-seven have been successful, the most recent in 1992 (and that was the ratification of an amendment first introduced in 1789 that relates to Congressional salaries). Even that number is somewhat misleading, as the majority of the most significant amendments passed in exceptional circumstances—the first ten are the Bill of Rights, introduced effectively simultaneously with the Constitution itself, and three more were passed in the immediate aftermath of the Civil War, when the former Confederate states were given no choice but to accede. Except for the 17th Amendment, which provided for direct election of Senators (who were originally selected by state legislatures), none of the other Amendments has changed any of the Constitution’s structural provisions.
Failed highly popular amendments highlight just how unlikely meaningful change through the amendment process is. The Electoral College has been wildly unpopular for decades. In 1969, the House voted 338-70 to introduce a Constitutional amendment to abolish it. Southern states filibustered in the Senate to kill the bill, and we’re stuck with the Electoral College to this day.
The Equal Rights Amendment, which proposes nothing more than the indisputable idea that citizens should have equal rights without regard to sex, has been pending since 1923. Over the course of the past 100 years, it has been ratified in thirty-eight states (six of which subsequently revoked their ratification) and debated multiple times. Highlighting the overlapping absurdities of our system, multiple federal courts have even concluded that the deadline for ratification passed in 1979.
As mentioned earlier, one aspect of the Constitution is beyond even this limited amendment provision: no state may be deprived of its equal representation in the Senate without its consent. This provision alone renders the Constitution irredeemably anti-democratic. The Senate is a lynchpin in the federal government: no bill may become law, no federal judge may be appointed, and no treaty may be ratified without its assent. Under this Constitution, residents of more populous states will never be fairly represented at the federal level. This means that the smaller, disproportionately white, and conservative states will exercise disproportionate power over the federal government, dragging it unfairly in a conservative direction, exactly as intended.
Socialists Must Consider the Constitution When Designing Strategy
I want to conclude by taking a step back to examine how these pieces fit together to create a government that is even more undemocratic than the sum of its parts. As discussed above, each structural Article of the Constitution exhibits deeply anti-democratic features. The Legislature is dominated by an unrepresentative Senate that enjoys parity with the House on legislative matters and special powers to approve presidential action and remove executive and judicial officials. The President is elected via an arcane and anti-democratic Electoral College, exercises vaguely defined and far-reaching powers, and is effectively beyond accountability. The federal judiciary is similarly chosen via a non-democratic process. Judges spend their lifetime exercising essentially unbridled discretion over issues of Constitutional interpretation, hemming the government in as they see fit while remaining less accountable than even the President.
Any realistic discussion of socialist strategy must account for the Constitution’s multiple anti-majoritarian veto points. Barring a sudden, major shift in favor of socialist policies in smaller, whiter states (and it’s difficult to imagine such a shift occurring anytime soon), no socialist legislative program is likely to be successful. Any such efforts will inevitably expend themselves before small-state resistance can be broken in the Senate. Even if socialists were somehow to seize control of the Senate, the upcoming strategically timed resignations of Clarence Thomas, Samuel Alito, and John Roberts will ensure a Republican majority on the Supreme Court for decades, granting reactionaries a veto over any socialist legislative program. If socialists actually want to build socialism in this country, their strategy must account for these realities.
Our government is celebrated as the genius of the “Founding Fathers,” who designed interlocking and interdependent branches into a system of checks and balances to ensure that no one branch could achieve dictatorial power. But this is a lie. The Framers designed the Constitution to obstruct the exercise of majoritarian rule, which they feared would result in the erosion of landholder privileges, deterioration of the racial caste system, and redistribution of wealth. While the people may elect the House on broadly democratic lines, it can do nothing without the Senate’s approval. If something offensive to elite interests should sneak past the Senate, the President can, and frequently does, veto it. If, by some miracle, such a bill evades presidential veto, the courts act as a final veto, which can be exercised whenever elites sufficiently dominate the Supreme Court.
In short, no policy sufficiently offensive to elite interest, as socialist demands must and will be, can be plausibly expected to survive in the current system. If we want to build a better society, socialists take the revolutionary road toward a democratic constitution.
Light & Air / Marxist Unity Group
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