Is the US Constitution an elitist rulebook designed to protect capitalism?
On this week’s WhoWhatWhy podcast, Robert Ovetz, a senior lecturer in political science at San José State University and the author of We the Elites, challenges the conventional wisdom about the US Constitution.
He argues that the Constitution, written by 55 wealthy white men and signed by only 39 of them, is not a framework for justice, but rather a rulebook written to protect the elites and private capital, i.e., capitalism.
Ovetz says that social movements have a misplaced faith in the Constitution as a framework for achieving justice. In his view, the document that emerged from the Constitutional Convention of 1787 was expressly designed to maintain the status quo and impede social change.
Indeed, many features of the US political system, from the structure of the bicameral legislature to the provisions for federal elections, are, in Ovetz’s view, intended to slow down change of any kind.
This suggests that In a rapidly evolving world with changing social, economic, and political needs, the Constitution — our basic “operating system” — may be seriously outdated.
It’s no accident, he says, that the incessant election cycles, staggered terms of office, and legislative sessions have kept social movements trapped in a failure loop.
Ovetz believes we need a new Constitutional Convention to grapple with these problems head-on.
Full Text Transcript:
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Jeff Schechtman: Welcome to the WhoWhatWhy Podcast. I’m your host, Jeff Schechtman. It’s often said that if our founders looked at America today, they would be appalled by what’s happened to the country and the system that they designed. We hear a lot about originalism and the literal interpretation of the Constitution, essentially the software on which we run the country. But what if we’re misreading all of this? What if the founders would be delighted at how the system is working? That it was designed of, by, and for those that were in power.
That the protection of the status quo was its highest and best purpose, and that it was designed especially so that radical attempts to change the system would be difficult at best, and impossible at worst. To put it another way, it’s the system, stupid. That our Constitution sometimes is seen as an almost sacred text codifies a system designed to prevent change. That it was meant to be exactly what George Washington said of the Senate, to be a cooling saucer. Everything about our system, the design of our legislature, the structure of our federal elections, are inherently there to slow down progress.
Is this a good thing? Has it enabled the stability, security, and economic prosperity that has made the country great, or is it not really relevant to a fast-moving world with the social, economic, and political needs often requiring more rapid attention? We’re going to talk about this today with my guest Robert Ovetz. He’s a senior lecturer in political science at San Jose State University. He’s the author of the previous book When Workers Shot Back and his newest work is We The Elites: Why The US Constitution Serves The Few. Robert Ovetz, thanks so much for joining us here on the WhoWhatWhy Podcast.
Robert Ovetz: Thanks for having me, Jeff.
Jeff: That’s great to have you here. One of the central premises you talk about is that the founders themselves, the framers of the Constitution, were themselves an elite group and that we shouldn’t be surprised that the fundamental design was to protect their interests.
Robert: Yes, absolutely. The framers, with almost no exception, were incredibly affluent members from across 12 different states at the time. There were a few people who I would say were the poor rich, but they left early. They didn’t really like what was going on there, and they ended up releasing their notes and becoming anti-Federalists. But for the most part, you had a coalition among the richest elites, who had a diversity of different propertied interests from across the 12 different states. There were those who owned large numbers of slaves, there were those who owned and speculated in land, [and] there were those who were merchants and bankers.
And so the folks that show up in Philadelphia, although they have their own conflicts between these different propertied interests, without exception, they are looking out for their shared elite interests.
Jeff: And talk about what those interests were at the time, so we can relate them to what interests might be today.
Robert: Well, slavery gets a lot of attention, of course, but slavery was the backbone of the country, if you will, under the Articles of Confederation but it wasn’t the only propertied interest that was well represented there. Perhaps a third of the framers, from the historical research, owned significant numbers of slaves or benefited directly from slavery. But there were also those, as I mentioned before, who were deeply invested in the huge tracts of land that had been expropriated through settler colonialism from the Native peoples. And those lands had been in dispute for quite a while, [and] in fact, it’s what held up the ratification of the Articles of Confederation.
These were Western lands that couldn’t be sold and there were several different land companies and a few states that were battling over who would control those lands. Among [the] framers who had vast land speculative interests were Robert Morris, George Washington, [and] Ben Franklin. So they had particular interests. Franklin was an abolitionist, as we know, but he was also a big land speculator and he realized land was valuable because slaves could work it. There were also those who were financiers.
They had speculated in the Revolutionary War debts to the states and Congress, which was a huge amount of money for the time that couldn’t be repaid because there wasn’t enough silver and gold to allow repayment in literal cold hard cash. And among those were a minority of the framers that had been holding on to those IOUs, if you will, and had been clamoring to be repaid, but it wasn’t a large amount of money. It wasn’t as extensive as a prominent historian [who] made [it] the focus of his book, An Economic Interpretation of the Constitution of the United States.
But it was significant enough that [Alexander] Hamilton focused on it as one of his primary activities once he became Secretary of the Treasury in the Washington administration. So creating a new financial system required paying off that debt. Then there were also those who were merchants and traders like Robert Morris and Gouverneur Morris who wanted to have a new national government that could regulate trade and commerce and protect merchants and bankers, and help the United States become a world economic power.
So all those different economic interests, if you will, they were battling, they were struggling at the Constitutional Convention, but ultimately, they kind of came to a consensus that they needed a new constitution rather than trying to fix the Articles that would protect everybody’s property interests.
Jeff: Was there ever any push at all for anything that even resembled any kind of a direct democracy?
Robert: Yes, that’s a really good question. And by direct democracy, I define it in the way that the Athenians did during a couple of centuries of Athenian democracy where the people can make decisions directly. In fact, the framers were almost without exception, on record in their letters, in the notes which had been smuggled out of the convention because they were under an oath of secrecy, in pamphlets, in the Federalist Papers, and so forth. I find that without exception, the framers were adamantly opposed to this kind of democracy where the ordinary person could have their hands on the lever of power.
At the time, they dismissed the ordinary people as essentially the unwashed masses. They referred to them as anarchic, as tyrannical majorities, and one of my favorites is that they call them the “people out of doors.” In other words, the people who are outside getting their hands dirty, working in the land, and making things. They had no place indoors where they could make decisions about how to govern the country, if you will, because they would be a threat to the propertied interests. So the framers, without exception, designed a system that would impede the ability of what I call the economic majority from having any say over the system, whether directly or indirectly.
Indirectly, they only got to elect one small part of the overall federal government. They got to have a direct vote for the House of Representatives, the Senate was appointed by the states, the president and vice president would be selected through the Electoral College, and judges would be appointed and confirmed by the president and the Senate. So only a small part where the representatives could be elected, but even then, the Constitution grandmothered in, if you will, the property requirements to vote and run for office that existed in every state at the time.
Now, in terms of direct democracy, you can look long and hard in the Constitution, and in the original Articles, you will only find one type of direct democracy, and that is jury trials in criminal cases. And that in itself was very controversial because nearly every state had jury trials for civil cases as well. And so this became a real contention point during the ratification debates in the states and it was one of the issues that almost killed ratification. So that gets added, of course, later in the amendments.
Jeff: Part of the argument, though, was that this system created a greater sense of stability, that a direct democracy, something that some of them considered mob rule, would create a degree of instability, which would have severe economic consequences.
Robert: Yes, absolutely. And ironically, this is still an underlying understanding of democracy that many people hold today. The idea that if the vast majority of the population was able to make decisions directly in a democratic manner, that that would lead to instability and change. But I actually see it the other way around. I see that when a small elite are able to design a system or get control over a system where only they get to make decisions, that actually creates instability. It creates conflicts, it can create class struggles, it creates turmoil, and of course, it creates wars and economic insecurity. And when that happens, people get organized, they protest, and if they’re locked out of the political system, they tend to take in an escalation of tactics that puts more and more pressure on the system.
So I would argue that elite-dominated systems, whatever form they take, are actually more conflictual. In fact, we see this very early on in the Constitution’s history. For example, after the Constitution is sent by Congress out to the states to be ratified, it takes a little while, but a movement emerges opposed to ratification and they’re called the anti-Federalists. And they lose the first few ratification votes, but they ended up voting down the Constitution in a few states. And so it looks kind of touch and go. Now, ultimately, we know that they lost, but they didn’t give up. In fact, they became a protest movement, the backbone of [a] protest movement against the denial of suffrage to all White men.
And that protest movement leads to the formation of the Democratic-Republican Party, which, famously, Jefferson leads into the White House. And in the first couple of decades, that leads to various protests: it leads to a movement taking over the state of Rhode Island for a little while, and then ultimately, the first protest movement that results in extending suffrage to White men. So that elite-dominated constitutional system that we started our country’s history with, as our second constitution, is already a source of conflict. And let’s not forget that over the next seven decades, there will also be increasing conflict around slavery, because slavery is so well protected in the Constitution even though the word “slave” or “slavery” doesn’t appear anywhere in the text.
Jeff: And yet the counterargument to that is that the system has worked for 234 years, and the changes have happened, significant changes, slavery being the most consequential, but the changes have happened within that 234 years within the structure the framers gave us.
Robert: Well, I would argue not enough changes have happened. And I think that the design of the Constitution actually set up the foundation for the country really tearing itself apart in a civil war. And that war, without having to go into that history, was a brutal, bloody mess in order to get rid of slavery that’s so well protected in the Constitution. And so I would argue that the first decades of our country’s history was one of great turmoil. And while the United States celebrates its system as incredibly stable, that we haven’t had coups- at least until the attempt of January 6th, 2021.
And we are the exception to the rule, if you will, of representative democracies. In my studies of representative democracies, and I teach about different representative democracies, I actually find that parliamentary systems are much more stable because they provide the opportunity for people with a wider variety of political perspectives to be able to vote for people who more closely match their interests. And if that party gets enough votes, they get into the parliament, and then ultimately, they can join in a government coalition, and then start to make those changes.
What we have instead is a system in which, since essentially before the Civil War, two dominant parties control our system and disenfranchise those who don’t see anything to choose on election day that matches their interest. And so I think that our system, because it also on top of that has built-in what I call minority checks that makes it so difficult to make change, which was the design of the framers, that a lot of people turn away in our system, they stay out of the electoral process, and they’re actually more likely to engage in protest movements and strikes and other forms of collective action because they see the system as locking them out.
Jeff: However, we see those collective actions and protest movements, even in parliamentary systems. We’re watching it play out in France right now.
Robert: Yes, absolutely. And I think France is, in some ways, evolving into a system that’s similar to the United States. And getting back to your earlier point about when change happens, change does happen in our system but it happens very infrequently. And we are long overdue for a new cycle of significant change. And the way that I see that change happens – because our system has many built-in minority checks that allow those who are opposed to change to be able to block that change – is that it often takes this build-up of mass movements who create enough disruption, that it gives the upper hand to those who are working inside the system, to see their proposed changes realized.
And we’ve seen those periods. White male suffrage, as I mentioned before, the abolition of slavery and Reconstruction, the rise of the union and socialist movements at the end of the 1800s to the first couple of decades of the 1900s, and then into the 1930s during the Great Depression, and then in the 1960s, with the power movements and the environmental movements. But we’re long overdue for that period of reform. It’s been my entire lifetime that we’ve had any significant change. And while we’re dealing with so many big crises, the opportunity for our system of government to address those crises are blocked by the system itself that gives the upper hand to those who just don’t want to get us off of oil and fossil fuels.
Jeff: Part of the problem also is demographic change. And we certainly see and history supports this around the world, that more homogeneous societies are better at doing democracy, that doing democracy within a really diverse population becomes infinitely more difficult.
Robert: Well, that argument, of course, is a premise. But I would actually argue that our system really begins with a population that’s already pretty diverse, and yet the system that we had before the Constitution, in some ways, allowed for more voices to be able to have a say and to have political influence. And in replacing the Articles of Confederation, which put most of the political power at the state level, where you had more of a diversity of interests among small farmers, mechanics, laborers, as well as the various elites in the state be able to compete for and replace each other at the state level.
The framers intentionally led by Hamilton, for example, in Federalist 51, to give you an example, were very explicit, and Madison, as well, in Federalist number 10, were very explicit about designing a system that would amplify those differences and pit them against each other. Hamilton, for example, in Federalist 51, and this is what we refer to as divide and conquer, Hamilton wrote that it was necessary that there’d be so many different interests, that it would make it hard for the majority to combine. And the concern was, if the majority, the economic majority, was to get together to overcome their differences in diversity, that they would become a threat to economic minority interest, to elite interests.
And so I think in some ways, the Constitution is designed in such a way that it keeps the electorate divided in large house districts, for example, among the states, in the Senate, using the Electoral College and so forth, as a way to pit different interests against each other. So there’s nothing really natural about having a homogeneous society or a diverse society that leads to conflict or instability. It’s whether the system of governance itself amplifies those differences or allows for a unification of the differences.
Jeff: The overlay to that is that modernity itself, and technology, and communications, and information, in many ways magnifies all the problems that we’re talking about.
Robert: Well, I would agree with you on that, and social media, certainly, because of those built-in algorithms that feed you information that confirms your own perspectives or biases, or whatever you want to call it, is certainly fragmenting us. But there are other interests that really underlie that as well, that we also need to take into consideration with how technology is doing that. For example, most of our media has long been dominated by commercial interests. Over 90 percent of the media is owned by for-profit making companies. And we have a long history of scholars who study the media and have demonstrated how commercial media tends to amplify those differences and create divisions and tensions and conflicts between different groups and the way that they frame stories.
So I would say that certainly we are a society that is at war with itself, but it’s made worse when the opportunity for actually addressing the changes, that I think many of us have in common despite the perception that we’re in conflict with each other, are precluded and prevented.
Jeff: There is in addition to the algorithms and the social media and the other things that you talk about, there’s also the speed at which information operates today. That was something that the framers couldn’t have imagined.
Robert: Certainly, technology is no doubt speeding up the circulation of information. It also works the other way as well. We can go back a couple of years early in the pandemic when millions of people went into the streets, literally within hours, to protest against police violence. So the speed in which information circulates and the ease by which we can access it, I think is actually a very good benefit for those of us who are focused on making our system operate in a more democratic open way. It can also be detrimental if that information is hidden behind firewalls and paywalls, for example, that limit access only based on your ability to pay.
Jeff: Realistically though, bringing it back to the present, realistically for the very reasons that we’ve been discussing, there’s very little chance that system is going to change very much.
Robert: Well, in my book, I spent the last couple of chapters exploring essentially three options for how we deal with this because I think it’s easy to be cynical about our system. Certainly, I teach hundreds of students every year the basics of how our constitutional state and federal systems work. And a lot of students ask, “Well, what do we do about this?” And so I spend the last couple of chapters exploring essentially what I think are three options.
The first one is can we fix the Constitution? Can we amend it? Well, that’s a difficulty because, in Article five, the framers wrote the amendment process in such a way that it makes it incredibly difficult to amend. While we have 27 successful amendments that have been added to the Constitution that is only a tiny fraction of 1 percent of the more than 10,000 that have officially been introduced and proposed. So that option is incredibly difficult. Another possibility is to use one of those methods of amendment, and that is the call of a constitutional convention.
I think we’re long overdue for a constitutional convention. Some states have them regularly by their constitutional rules such as the state of New York, but that also raises various risks because deep-pocketed donors right now are actually pushing forward a constitutional convention resolution that is making its way through a number of states. And that could be very dangerous for those who are opposed to their libertarian interests.
So I think the third option is that in a time when there’s a mass social movement, that the possibilities for democratizing our society really lie in democratizing our places where we work. And so I explore these three different options of how we can move past the impasse of our Constitution impeding and preventing political and economic democracy.
Jeff: You make the assumption though, that a mass social movement is on the horizon.
Robert: It’s a really a thought question because it’s inevitable that mass movements will emerge. Many of them are unsuccessful, but being a scholar of movements my expectation is that at some point – and we’re seeing some seeds of it being planted right now with an uptick, for example, of union organizing and strikes over the last couple of years – these new movements provide an opportunity to revitalize how we govern ourselves. And they can’t come soon enough because we all know that climate catastrophe is really a death sentence for most life on Earth. And it’s urgent that we take action to be able to make the decisions that will steer us away off that cliff that we’re really about to fall over right now.
Jeff: You conflate the idea of some would-be social movement in the future with the reality of dealing with climate change, something that’s a global problem and happening with an alacrity that is arguably much greater, than the possibility of some social movement that may or may not ever come to be.
Robert: Well, yes and no. It depends on what that movement is because we’re speaking hypothetically right now. But for example, to bring it back to our inability to act on this issue, there have been proposals for the last few decades to take action on climate catastrophe. Because of the minority checks in our system, those proposals, for example the Green New Deal, often get whittled down and watered down into becoming subsidies to companies to transition to clean and green technology. For example, with the Inflation Reduction Act, which passed a few months ago.
However, the reason why that happens is because those whose interests are served by keeping us dependent on fossil fuels are able to block any proposal that would immediately ban the burning and exploitation of fossil fuels. And so we end up with these so-called legislative solutions that really don’t turn out to be much of a solution at all. I think if and when a movement emerges, not just limited to climate catastrophe because there’s a whole range of other issues that go unaddressed because of the way our system’s designed, it would be much more likely that we could redesign our system so that we can make the changes that we need instead of giving the power to those who are opposed to those changes to be able to prevail.
Jeff: Do you realistically believe those changes are possible?
Robert: Absolutely. Even though I have my moments of cynicism, I still ultimately have a belief in human beings to be able to identify their shared interests and be able to figure out how to act on them. And I think, unfortunately, the Constitution puts a barrier in the way of us doing that.
Jeff: Robert Ovetz, his book is We The Elites: Why The US Constitution Serves The Few. Robert, I thank you so much for spending time with us here on The WhoWhatWhy Podcast.
Robert: It was wonderful. Thank you, Jeff, for having me.
Jeff: Thank you for listening and joining us here on The WhoWhatWhy Podcast. I hope you join us next week for another radio WhoWhatWhy Podcast, I’m Jeff Schechtman. If you like this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org forward–