Balkinization  

Wednesday, October 19, 2011

Occupy the Constitution

JB

My friend and colleague Reva Siegel, one of the nation's foremost legal scholars of social movements, recently noted an interesting difference between Occupy Wall Street and the Tea Party. Almost from the movement's inception, Tea Party advocates invoked the Constitution as supporting their political goals for limited government and lower taxes, even though their constitutional claims were, and are, odd from the perspective of contemporary constitutional doctrine. Rather, they sought to move certain constitutional claims from "off the wall" to "on the wall" through their protests. They sought to take back the Constitution by putting themselves on its side and arguing that, rightly interpreted, it supported their goals.

So far, at least, Occupy Wall Street protesters have not made claims about the Constitution central to their mobilization.

But there is no reason why they should not.

In fact, Occupy Wall Street is pretty easily characterized as a constitutional movement. seeking to take back the Constitution from "the malefactors of great wealth," to borrow a phrase from a century ago.

To begin with, many OWS advocates are critical of the Supreme Court's decision in Citizens United. They believe that the Supreme Court does not properly understand the democratic function of the First Amendment's guarantees of speech and press. They believe that the Supreme Court has twisted and distorted the true meaning of the First Amendment. And they are exercising their First Amendment rights to petition and to assemble in the streets and parks of the United States.

Yet considered most charitably, and in their best light, the Occupy Wall Street protests offer a still deeper vision of the Constitution than simply a rejection of Citizens United.

OWS advocates argue that the system of government in the United States is broken. The wealthy and powerful have used their wealth and power to buy access to government, and to use that access to twist regulations and programs to make themselves even more wealthy and powerful, thus turning American democracy into a self-perpetuating machine for taking from the have-nots and giving to the haves.

This self-perpetuating machine for extracting wealth and opportunity from the 99 percent and bestowing it on the 1 percent is a perversion of the American Dream.

Something happened to the American Dream in the middle of the twentieth century. The American system of government, which from the end of World War II to the middle of the 1970s, was fairly good at increasing prosperity, equal opportunity, and a reasonable range of income equality has been turned into a device for exacerbating inequality and undermining equal opportunity.

Perhaps more to the point, when this cycle of inequality turned into disaster for the entire economic system in 2008, nobody was held accountable, least of all the people who drove the system over a cliff. And Washington politicians, again under the influence of concentrated power and wealth, have refused to do very much to get the economy back on its feet and solve the greatest crisis of unemployment since the Great Depression. Instead, egged on by powerful interests, their solution has been to promote contractionary fiscal policies and austerity. They have chosen low-inflation strategies at a time when inflation is a distant will-of-the-wisp. Such strategies make sense if the primary goal of the American political system is to benefit people with the most wealth. They make very little sense if the goal is to benefit the unemployed seeking work.

OWS is a critique of the system of American democracy and how the engines and devices of American democracy have been perverted for the benefit of the 1 percent and to the disadvantage of the 99 percent.

This critique is clearly about the Constitution. And if we look at the text of the Constitution, we will see why that is so.

The American Constitution is the framework for a democratic republic. A democratic republic, in turn, is system of government that is designed to be responsive to the people of the United States as a whole, and not to the wealthiest 1 percent.

The Constitution says that "The United States shall guarantee to every State in this Union, a Republican Form of Government."

A "Republican Form of Government" is not a government controlled by Republicans.

Rather, a Republican Form of Government" is a representative government. It is a responsive government. It is a government, to use Abraham Lincoln's famous words, "of the people, by the people, and for the people." A republican form of government is a government that pays attention to the welfare of the vast majority of its citizens, or in the words of OWS, it is a government that cares about and is responsive to the 99 percent, rather than a government that is captured by the 1 percent and made to do that 1 percent's bidding.

The guarantee of a republican form of government, which I have just quoted, is called the Guarantee Clause of Article IV. The Guarantee Clause, as my colleague Akhil Amar has pointed out, was designed to prevent temporary majorities or even minorities from using the levers of government to entrench themselves in power. It was designed to ensure that a small group of powerful and wealthy individuals could not hijack the government and make it do their bidding to the exclusion of the vast majority of the public-- the public for which democratic governments were created to serve. The Guarantee Clause was designed to prevent a small determined faction from seizing the reins of government, and making it a ventriloquist's dummy, a mere puppet of the powerful.

The second half of the Guarantee Clause speaks of invasion and "domestic violence." The framers understood that republics are not lost only to conquering armies. They are destroyed by corruption which leads to feckless, unresponsive government, and causes government to lose legitimacy in the eyes of the broad mass of its citizens. The riots and insurrections come later on to deliver the final blow. That is why the Guarantee Clause concerns both the destruction of majority rule and domestic upheaval. The two are opposite sides of the same coin. Caesar seized Rome after the Roman Senate had become deeply corrupt and the Republic could no longer defend itself. When the Senate is for sale, a coup is unnecessary to destroy republican government. The coup has already occurred from within.

The text of the Constitution is available for everyone to read. Why does no one pay attention to the Guarantee Clause today? Chief Justice Roger B. Taney, the author of Dred Scott v. Sanford, drove the Guarantee Clause out of mainstream constitutional law. He reasoned that whether a government was "republican" was a political question and therefore courts could say nothing about it. A hundred and twenty years later, the Warren Court flirted with the revival of the Guarantee Clause in the famous apportionment cases, Baker v. Carr and Reynolds v. Sims, but ultimately decided to use the Equal Protection Clause to remedy the harms of an unrepresentative government. This is particularly ironic: the Equal Protection Clause was not intended to say much if anything about voting rights, while the original point of the Guarantee Clause was that government should be responsive to majorities and not be hijacked by powerful minority factions.

The Guarantee Clause has been forgotten. But there is no reason for us to follow the author of Dred Scott today. He was wrong about the justifiability of slavery. He was also wrong about the meaning of republican government.

Let us even grant that Taney is correct that the question of whether we live under a republican form of government is a political question, and not susceptible of judicial resolution. That is no reason why we should not fight for the vindication of the Constitution in politics. The current system might violate the values of the Guarantee Clause even if no lawsuits are ever filed. The courts are not the only interpreters of the Constitution, and they are not its only defenders, and that is especially so where, as here, a question of constitutional interpretation is deemed a "political question."

And even if the Supreme Court is fixated on Citizens United, a united citizenry might decide to focus on the actual words of the Constitution themselves.

The Guarantee Clause says that the United States shall guarantee to the states a republican form of government. It says that we are guaranteed a responsive government, a government that cares about the 99 percent, not a government that is of the 1 percent, by the 1 percent and for the 1 percent.

The ideals (and the fears) of the framers are still relevant today; the wisdom of the Guarantee Clause still applies. If government no longer pays attention to the vast majority of its citizens; if the government has been hijacked by the most wealthy and powerful in the country to perpetuate and expand their wealth and power; if the agencies of government have been derailed from their constitutional obligation to "promote the General Welfare," then we no longer live under a republican form of government, and the government we have is no longer consistent with the United States Constitution.

A broken government, unresponsive to the public, is more than a misfortune. It is a violation of our basic charter-- our Constitution.

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