Current Affairs is


and depends entirely on YOUR support.

Can you help?

Subscribe from 16 cents a day ($5 per month)

Royalty reading issues of Current Affairs and frowning with distaste. "Proud to be a magazine that most royals dislike."

Current Affairs

A Magazine of Politics and Culture

I Don’t Know Why I Should Care What the Constitution Says

If the majority of the country is excluded from ratifying a document it has no binding moral force.

When I was in college, I accidentally attended a talk by a member of the Revolutionary Communist Party. I say “accidentally” because I thought it was going to be a talk about the role of religion in society. It was billed as an author event about a book called Away With All Gods, and it was sponsored by the campus humanist society. When I got there, I found that it was not a typical author talk. For one thing, the author was not there. Instead, he had sent a representative. The author, Revolutionary Communist Party Chairman Bob Avakian, was in self-imposed exile in the south of France. An RCP deputy would be giving his book talk on his behalf.

What I remember most about the event is that the RCP representative kept saying “In the book, Bob Avakian writes…” and “Bob Avakian says…” The speaker didn’t say what she thought, she just said what Bob Avakian thought, and he was invoked as an expert on everything. He was never seen, never spoke in his own name, but he was a looming authority in the sky. We were to defer to the wisdom of Chairman Bob. And I remember my chief reaction being: “Why the hell should I care what Bob Avakian thinks?”

It’s the same way I feel about the Founding Fathers.

There are plenty of arguments I find persuasive, or at least worth taking seriously. For example, if someone argues that Policy X will destroy the economy, I tend to take the argument seriously, because, well, if the person is right, that’s a pretty good reason for not doing Policy X. Sometimes, when I see people criticizing left policies, they are arguing that left policies will have bad consequences, and I think those of us on the left need to explain why we do not think our policies will have those bad consequences. But just as often, I see arguments that I don’t have any respect for: (1) that our policies are “politically impossible” and (2) that they’re “unconstitutional.”

I’ve written before about “political impossibility” arguments. The reason I don’t think they’re worth spending time on is that nobody knows what is and isn’t politically possible, because political reality changes rapidly and unpredictably. Donald Trump was told that his presidency was impossible. He ignored this, and now he is president. After all of the experts on the limits of the possible got Trump so wrong, I feel no need to ever listen to them again as they make new predictions about what can and cannot happen in politics. We are now in uncharted territory, and while we need some theory for how we’re going to get Policy X done, we can only know whether the theory works by trying it. So we should be spending our time asking questions like: Is Policy X a good idea? And if the answer is yes, then we ask: What’s our most plausible path toward getting Policy X done?

Be on the lookout, because “experts” often drift from subject areas where they actually know something to “political possibility” speculation, which they know nothing about. See, e.g., Larry Summers and Paul Krugman. Even if we assume an economist has some expertise, that expertise is on economics, not on “what social movements can and cannot accomplish.” Disregard these men entirely when they stray from their narrow field of knowledge. 

Just as I don’t think it’s worth spending time on “political impossibility” arguments, I have never understood why I should care what the Founding Fathers thought about anything. Consider this recent article from USA Today called “Hey, Elizabeth Warren: Your wealth tax plan? It’s unconstitutional.” It is by a minor Bush administration official, and in part it does make a “consequences” argument against wealth taxes, saying “the fact that this is bad economics seems intuitive” because “the top 1% of wage earners pay a greater share of federal income taxes than the bottom 90% combined.” As I say, I take seriously arguments that policies are bad on their merits, but I feel I can ignore this one, because (1) the author offers absolutely no actual supporting evidence for their claim that this is “bad economics” beyond their “intuitive” feeling that it is and (2) the one point they do make, about top earners paying a lot already, is an incredibly misleading piece of bullshit, for reasons that should be obvious to anyone who grasped elementary arithmetic. (Say there are only two people in a country, you and me, and I have a billion dollars and you have one dollar. Even if the tax rates are vastly skewed in my favor [e.g., I pay 1 percent and you pay 10 percent] I am going to pay the vast majority of the tax revenue. Conservatives use the “share of federal income taxes” to try to show that rich people are being soaked when what it actually shows is just that they are very rich and most of us barely have any money to tax.) 

The majority of the article, though, is about how wealth taxes are unconstitutional. In a section entitled “not what the Founders wanted,” the author writes: 

Article 1 Section 9 of the Constitution forbids the government from laying a “capitation, or other direct, tax” unless in proportion to the census.  Alexander Hamilton, in a brief supporting a national carriage tax, explained that a direct tax comprises, among other things, “taxes on lands and buildings. General assessments, whether on the whole property of individuals, or on their whole real or personal estate.” In 1895, the Supreme Court ruled that income taxes were forbidden under this logic in Pollock v. Farmers’ Loan & Trust Co. Chief Justice Melville Fuller noted that “nothing can be clearer than that what the Constitution intended to guard against was the exercise by the general government of the power of directly taxing persons and property.” This was the background to the 16th (or income tax) Amendment, which was proposed, passed and ratified during William Howard Taft’s single term. It gave Congress the right to levy a form of taxation that was originally constitutionally suspect. But there is no provision in that amendment for a general federal property or wealth tax…

I have to say, when I read things like this, I can’t help but think of Bob Avakian. Imagine that Chairman Bob someday manages to found a microstate. And he writes all the rules up, personally, and makes everyone follow them. Then, 250 years later, Bob is long dead, and the people of Bob’s country have finally established a sort of democracy after two centuries where the country was ruled by “people who looked the most like Bob” using Bob’s handwritten rules. Imagine how it would sound, to those citizens who had finally established a system where you didn’t have to look like Bob in order to participate in governance, if some of the people who still looked like Bob said things like “Well, your new tax isn’t what Bob would have wanted.” Wouldn’t you say to yourself what I said back at that RCP talk in college? Why should I give a damn what Bob Avakian thinks about anything? 

This is going to sound quite radical, but it’s true, so you need to believe it: The Constitution is a wholly illegitimate document to which we owe no loyalty whatsoever. To be honest, that should only sound radical if you don’t think women, African Americans, and Native Americans are people. If you do believe that women are people, then the fact that they were excluded from the Constitution’s drafting and ratification means that it has about as much legal and moral force as if I declared myself king of the world. The vast majority of the country had no input into the founding governance document. It was imposed on them by force. I do not see why they owe it respect.

I do not doubt that Alexander Hamilton wouldn’t have wanted a wealth tax. He was, after all, a wealthy person. Perhaps the author’s constitutional scholarship is accurate. I don’t particularly care. Sooner or later this country needs to come to terms with something very unsettling: We have never set up a binding constitution, because we have never passed a democratically legitimate one. Until the early 20th century, the female half of the population was completely disenfranchised. Black people did not get the franchise fully guaranteed until the 1960s, which let us remember is within the lifetimes of people who are alive today. (And since not everyone is allowed to vote today, arguably we still cannot call ourselves a democracy.)

The temptation, of course, is to say that the Constitution finally took its real effect around 1965, when voters “tacitly consented” to it. But it is ludicrous to think that the rules written by a small minority could suddenly become binding once the franchise is widely granted. The Constitution sets up the rules for changing it, and voters had to follow rules that were imposed undemocratically. To say that if we haven’t yet changed the Constitution, we accept its provisions, is to say that the rules of the game are legitimate, but the whole point is that they aren’t. If at Point A we have an authoritarian government that makes a set of rules, and at point B we have a “democratic” government but only within parameters laid down at Point A, we do not have a democratic government. 

No, I’m afraid there’s no choice. Eventually we’re going to have to start fresh and convene a new constitutional convention. It sounds radical, but unless we do it we’re always going to be governed by the dead hand of an illegitimate dictatorship. (In my fictitious memoir from the year 2076, I describe how this might transpire and what a useful and proper Constitution might look like.) Now, as you can see, that means that I’m not against Constitutions. I’m not against rights. I am a strong believer in rights. I am sure critics would say that I believe in lawlessness and might makes right because I do not think the Constitution and Bill of Rights command much inherent respect. But that’s not the case. I am a strong believer in democracy and civil liberties, and it’s precisely because our existing Constitution is so dysfunctional at protecting people’s rights that I think there is good reason to point out its illegitimacy. We should respect the good parts of the Constitution (free speech, free press, no unreasonable searches, etc.) and discard the bad (any limits on taxing the wealthy), and we should respect the good bits not because the Founders believed in them—since many of the Founders also owned and raped humans, calling their judgment into question—but because they are good. 

I feel as if liberals make a mistake when they have Constitutional arguments with the right. I think there is a temptation to say “Actually, the Constitution does allow wealth taxes” or “Actually, ‘cruel and unusual punishment’ should ban the death penalty” or whatever. And sometimes there are good arguments here, I’m sure Elizabeth Warren’s former Harvard Law students can put together an excellent brief on why her wealth tax is constitutional. But more importantly: The respect we owe the opinions of Alexander Hamilton equals the respect the citizens of Avakiana owe the laws of Chairman Bob. Perhaps Bob did a good job setting up the country in many ways. Perhaps he was very wise actually, and perhaps his rules were far better than those of other countries at the time. That’s a good reason to study and learn from them, and even incorporate some of the good ones into the next set of rules. But there’s no need to defer to their authority when it leads to absurdity. 

I’d like to quote one more bit of the USA Today article because it shows how silly constitutional arguments can get: 

A second objection is that the wealth tax proposal is functionally a bill of attainder, which is also forbidden under Article 1 Section 9, and denied to the states under Section 10. The ban was based on the abuse of this process by British governments seeking to punish political dissent. Hence bills of attainder, according to Chief Justice Earl Warren in the 1965 case United States v. Brown, were intended by the Framers to bar “legislative punishment, of any form or severity, of specifically designated persons or group.” Under the test laid out in the 1946 case United States v. Lovett, bills of attainder identify specific groups (in this case “billionaires”) and impose punishment (taking wealth) without a trial. Laws denying employment to members of subversive organizations have been overturned by this standard; replace “communists” with “the wealthy” and you can see how the class warfare script has flipped.

One thing I learned in law school is that you can make an argument for literally anything. You can make arguments that slavery, war, and environmental destruction are good. And as you can see here, you can make an argument that because “billionaires” are a “specific group,” you cannot punish them under the Constitution. 

It’s a dumb argument, of course. Extreme wealth is immoral and harmful, and so “billionaires” are only a “specific group” in the same way that “murderers” are a “specific group,” but “This anti-murder law unfairly singles out murderers for unique punishment” would sound ridiculous. The possession of wealth is an action with consequences, and even if taxation is considered “punishment” (which it isn’t), it would be punishing an action rightly regarded as criminal. 

But what determines whether a bullshit argument is accepted is ultimately not the Constitution. It is the courts, and who is on the courts will be determined by the political process. If the right manages to cram hundreds of judges into the court system, the possession of wealth will be some kind of “protected status” and constitutional rights will be all about shielding it from “persecution.” If the left takes power, its judges will rightly recognize the obscenity of treating “having power” (e.g., having wealth) as a vulnerability similar to being a racial or religious minority. 

I should, then, note that I cede too much when I suggest that conservatives do actually care about the text of the Constitution. They invoke it a lot, because the Founders were conservative, and so of course they want it to bind us as rigidly as possible, but ultimately when text and legal principles conflict with their beliefs about who should hold power, out go the legal principles. After all, as I say, if we really care about legalistic integrity, that should reduce our deference to the Constitution, because it lacks it. (Similarly, I have pointed out that if you really care about “property rights” you should acknowledge that climate change is a giant act of theft perpetrated by rich countries against poor ones.) I have showed before, by examining the jurisprudence of the Supreme Court and Brett Kavanaugh’s district court opinions, how political ideology rather than text or even logic is what produces conservative judgments. I do not want to give the mistaken impression that I think constitutional conservatives have some integrity.

I think the big fear is that if you think “values” rather than “existing laws” should be given the most deference, you will end up becoming some sort of authoritarian or you will believe that “anything goes.” But anything does not go: Only the good things go. “Ah, but who is to say what the good things are? You?” No, the result of a democratic process. “Oh, so it’s just majority rule?” No! I think there is a bad faith move pulled here, where opponents of democracy pretend that there is some process that doesn’t involve having some conception of the collective will imposed on everybody. Really, though, we’re not talking about my “anything goes majority rule democratic free for all” versus your “respect for individual rights.” We’re talking about whether the rules are going to be made by dead slaveowners or by the people who exist in the here and now and who actually have to live under them. What this comes down to is a matter of trust: Conservatives trust Alexander Hamilton, and I trust my neighbors. They think my neighbors are scary and cannot be given power, while I think Alexander Hamilton should have no say whatsoever in contemporary wealth tax debates. These are the terms of the dispute: Those making arguments that left policies are unconstitutional are the ones who think Bob Avakian should rule over us centuries after his death, while those of us on the left think that people should get to determine their own fates, and the dead do not make rules that the living are bound to respect.

More In: Law

Cover of latest issue of print magazine

Announcing Our Newest Issue


A wonderful spring issue touching on important issues such as child liberation, whether humans really love animals, why Puerto Rico's political status remains a problem, what Islamic finance can teach us, and how 'terrorism' has become a shape-shifting word. Welcome to the Manos-Fair, and enjoy Luxury British Pants, among other delightful amusements!

The Latest From Current Affairs