BRATTLEBORO — The United States of America began in the Enlightenment-driven hope of human equality and the rights of self-determination most memorably articulated in the Declaration of Independence.
Conflicts between creditors, debtors, and democracy arose immediately after the Revolution in 1781.
By 1786, these conflicts turned into explosions of rebellion and repression, which pushed the leaders of the Revolution, the wealthy men who signed the Declaration of Independence, to convene what became the Constitutional Convention in 1787.
There, the Founders contended with the central conundrum confronting any society - how to organize the production and distribution of food, clothing, and shelter, then leisure and luxury goods.
By the 1780s, Europe and the United States had developed systems of exchange - mechanisms for the production and distribution of goods - into what economists now categorize as merchant capitalism.
Only a few years earlier, in 1776, Adam Smith published The Wealth of Nations, the first text to explain how and when markets in a merchant economy work well, and how and when they don't.
The Founders were, to a person, invested in the system of merchant capitalism, which presumes that all goods - as well as the tools and resources needed to make them - belong to their owner.
Establishing, maintaining, and enforcing the legitimacy of claims to ownership became a major and immediate problem for a nation founded on the principle that all men are created equal with rights to life, liberty, and the pursuit of happiness.
The problem for a government that establishes the right to life and happiness is that such rights require a social commitment to provide the goods necessary for both.
The question that immediately emerges: Which is more valuable - an individual's claims to property, or an individual's right to life and happiness - even if someone else's property is necessary to sustain those rights?
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The leading thinker on these questions during and after the Constitutional Convention was James Madison. Because he and his colleagues more orless authentically aspired to build a new and unique nation, they wrestled hard with safeguarding the promises of the Declaration of Independence.
The difficulty for them was that all of them were rich, white men. Many, including Madison, owned slaves. Therefore, they would come to place the rights of people in equal standing with the rights of property - the two “cardinal objects,” he said.
“The fundamental principle [is] that men cannot be justly bound by laws in making of which they have no part,” Madison wrote. Concerning property, he argued a bit obliquely that the “first object of government” is “the protection of different and unequal faculties of acquiring property.”
Step back for a second and think about this.
Madison's two cardinal objects of government are the rights of persons and property, but the first of these is the active protection of unequal faculties for acquiring property, while the second is the passive recognition of unjustifiability in laws imposed upon people who have had no part in making them.
While these notions and values make for a lot of gray area, they also clearly advantage property over people.
Only a couple years after the Constitution's ratification, Madison rued the excessive rights given to property and tried arguing that “as a man is said to have a right to his property, he may equally be said to have a property in his rights.”
He continued, “government is instituted to protect property of every sort, [including] that which lies in the various rights of individuals.”
In 1792, it was a wan argument, but 76 years and one Civil War later, Madison's sentiment formed the basis for passage of the 14th Amendment, guaranteeing to all persons “equal protection of the laws.”
More on that in a minute.
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Between 1801 and 1808, rich and not-so-rich Americans imported more than 73,000 enslaved Africans into the United States, or about 19 percent of the total number of slaves ever enchained in this country.
Simultaneously, between 1790 and 1820, the United States added five large slave states to the union, quadrupling its territory. These states included Louisiana, Mississippi, and Alabama, which joined the slave-driven states of Georgia, South Carolina and Virginia.
“I am persuaded,” Thomas Jefferson wrote gushingly to Madison in 1809, “no constitution was ever before as well calculated as ours for extensive empire and self-government.”
This single sentence epitomizes the psychotic foundation of U.S. society and its structure. “Empire” and “self-government” are oxymoronic - one cannot exist alongside the other, by definition.
Through the decades of the early Republic, Anglo-Americans of every social class thrived on the profits of slave labor and the plunder of indigenous lands. Africans and indigenous peoples were not considered human beings. They were treated as subhuman, barbarous beasts.
Meanwhile, white Americans practiced politics, elected representatives, heralded heroes, and built a mythical self-consciousness of exceptionalism. They lived in the “City on a Hill,” envoys of the “last best hope on Earth.”
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The great deception of the United States has been from the start its structural preference for material acquisition at the expense of civil rights. Contrary to Jefferson's willful confidence in the compatibility of these opposing dynamics, four generations of race-based brutality ultimately bled into vicious Civil War.
Violence, starvation, and disease took the lives of nearly one in every four Americans in just four years and left a legacy of regional hatred, racism, and poverty throughout the nation.
Political leaders at the forefront of the Union cause enacted a program of Radical Reconstruction in the war's aftermath. Trying to restart the clock on promises made in 1776, Congress passed the 13th, 14th and 15th Amendments to the Constitution.
The 13th Amendment officially abolished slavery, and the 15th Amendment prohibited the states from denying voting rights based on race or skin color.
The 14th Amendment was more complicated, contested, and consequential. Section 1 contains the critical directive that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”
This clause would seem to align with Madison's belated conviction that government exists to protect people's property in their rights just as it protects people's rights to property.
And it has functioned that way in several of the most important decisions made by the Supreme Court since the Civil War, including Brown v. Board of Education, which desegregated public education, and Roe v. Wade, which legalized abortion.
However, the clause has also been subverted to re-create the original prejudice of the Constitution in favor of material acquisition over civil rights - and to an exponential degree.
The story of that subversion is intricate and tricky in a lawyerly kind of way. The best narrative is Thom Hartmann's book, Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights.
The subversion began in the writing of the amendment itself with the word “person.” Specifically, legal terminology of the period often referred to human beings as “natural persons” and called corporations “artificial persons.”
By rendering neither the word “natural” nor “artificial” within the wording of the amendment, corporate lawyers argued immediately that the amendment's reference to “person” included both natural and artificial persons - both actual people and corporations.
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From the date of the 14th Amendment's passage in 1868 and for the next 18 years, corporate lawyers argued incessantly for equal protection of their clients - corporations - as persons.
The biggest corporations of those days were railroads. In 1877, four cases reached the Supreme Court in which railroads argued that their rights under equal protection of the laws for all persons were violated by discriminatory state taxation.
These four cases, as with hundreds of others in local, state and federal courts, fell on deaf ears, but the corporations continued undeterred.
Through the years, as America's Gilded Age swung into motion, openings on the Supreme Court were filled by railroad lawyers. Ultimately, in 1886, while announcing the decision of Santa Clara County v. Southern Pacific Railroad Company, Chief Justice Morrison Waite, a former railroad lawyer, stated:
“The court does not wish to hear argument on the question whether the provision of the Fourteenth Amendment to the Constitution, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are of the opinion that it does.”
With those two sentences, corporations became people under the law: citizens with equal protections of the Bill of Rights and the Constitution.
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The enormity of the logical absurdity of equating Exxon, General Motors, or Facebook with an individual human being would be comical if it weren't so tragic.
Let's think about it for a moment. People live and die in one body and in one place at a time. Corporations live forever, can be in different places at the same time, can change their identities at will, can even chop off parts of themselves and sprout new ones.
Large corporations have hundreds or thousands of actual persons working within them, and these entities enjoy the fruits of those many people's labors. In legal circumstances, individuals technically confront the massive resources of a large corporation as equals before the court, one artificial person pitted against one natural person.
No greater structural imbalance leads to systemic injustice in America today than the provision of personhood onto corporations.
The Supreme Court decision commonly known as “Citizens United” made the claim that since corporations are people, the currency of their voice - money - is protected under the First Amendment as free speech and cannot be abridged.
The effect of Citizens United on politics is the foremost structural component undermining democracy in the United States. The decision predates Donald Trump and is apart from him.
If the United States survives Trump and Citizens United stands, our democracy will remain as threadbare and fatally vulnerable as it is today.
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According to a Daily Beast/Ipsos poll published on July 3, 70 percent of Democrats, 67 percent of Republicans, and 60 percent of independents oppose the Supreme Court's 2010 Citizens United ruling. Yet only a few politicians speak against it, because few election campaigns aren't funded by major corporations.
While this is a golden example of our democracy's current failing, it is also an opportunity.
Madison's fundamental principle applies. We live under a ruling in the making of which we have had no part. It is patently unjust, as the vast majority of voters recognize. We must demand protection of our rights to representation that have been abrogated by the privileged behemoths of the billionaire class.
In conclusion, the Constitutional structure of privileging wealth over civil rights underlays U.S. history from 1787 to the present. We can trace the consequences of that structure to nearly every injustice around us today.
If we understand the basic dynamic of that privileging, one that dates to Shays' Rebellion, we can build a strategy for overcoming it.
Such a strategy must appeal to Madison's fundamental principle, which when mobilized into a social movement has the power to recalibrate the system, as has happened before with the New Deal and in the Civil Rights era.