Aristocracy in the United States

About two weeks ago I found myself wondering how it was that the deadlock in Congress in our time looked so remarkably like the deadlock in Congress in the antebellum period. Different players, but still the same game. This is my attempt to explain the game. This is a historical opinion piece; it runs from the founding of the United States of America to our time. For a blog post this is a long piece. Printed, it would run six pages. Bear with me, please. There is a lot of ground to cover.

Contents

1. The Slaveholders Constitution
2. After the ratification: the fight for the government
3. Postbellum
4. The Great Depression
5. World War II, the Cold War, and After
6. In the Second Gilded Age
7. Prospect

1. The Slaveholders Constitution

Jefferson the patriot, fearless and bold
Takes Sally Hemmings when she's fourteen year old,
Who cannot resist, who cannot deny,
The way his descendants now have to try.
– Jack Hardy, “Ask Questions”

James Madison, the primary author of the Constitution of the United States of America, was a slaveholder and slavery was legal in all states at the time it was ratified. The questions must be asked, therefore, was the Constitution a pro-slavery document and is it to be given any weight in the present?

Slavery is addressed in three places in the Constitution. Article I, section 2, on the apportionment of votes, describes “free persons” and “other persons.” Article I, section 9 forbade the prohibition of “The Migration or Importation of such Persons as any of the States now existing shall think proper” until 1810. Article IV, section 2 says, “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” To the pro-slavery provisions, we may probably add the Second Amendment which, it has been persuasively argued, was added to the Bill of Rights to provide constitutional protection for slave patrols, thereby appeasing the slaveholders of Virginia.

Madison made the Constitution deliberately ambiguous, crafted to satisfy both the proponents and opponents of slavery but huge concessions were granted to the slave states. Why do that? Why form such a contentious alliance?

Because, I think, the European powers would have eaten the new Republic alive had they not formed a strong union. And to get the states dominated by slaveholders to join that union, there was a need to make concessions to those slaveholders.

What was lost in making such concessions? Many issues of freedom and personhood were left unaddressed. Who has rights? Who gets to vote? Less obviously, the Constitution was written to allow broad latitude to the states. Madison wanted a stronger Federal government but there was no way the slaveholders would accept it.

2. After the ratification: the fight for the government

He captured Harper's Ferry, with his nineteen men so few,
And frightened “Old Virginny” till she trembled thru and thru;
They hung him for a traitor, they themselves the traitor crew,
But his soul is marching on. – Anonymous, “John Brown’s Body”

The states then made their choices, with the northern states outlawing slavery. By 1804, enslaving people was illegal in all northern states, though some slaves remained in servitude. The southern states, ruled by a white aristocracy dependent on the plantation system, maintained the institution.

The South had a problem: in the new republic, slavery was popular only with a minority. The northern states wanted to be done with it. What to do?

Why, deadlock Congress, then stack the Presidency and the Supreme Court. Of the antebellum Presidents only two, I think, unequivocally opposed slavery: John Adams and his son, John Quincy Adams. If Congress and the President should somehow still manage to act, get the Supreme Court to defend states’ rights, so that the states can override their decisions.

The antebellum system of governance that emerged under the constitution was one of a deadlocked Congress, which granted power to the Presidency and (after Marshall) Supreme Court, which were usually slaveholders or at least willing to acquiesce to slavery. There emerged an aristocracy, a deep state if you like, of slaveholders. Not every antebellum President or Congressman was a participant, but most were at least willing to acquiesce to slavery. Whenever the aristocracy’s hold on power was threatened the response was brutal. Not just the assassination of Lincoln, but the violence in Congress that historian Joanne B. Freeman wrote about in The Field of Blood. Slaveholders, customarily violent in their own lives, were no less violent with their political opponents. The honor culture of the South encouraged dueling and Congressional Southerners were apt to treat criticisms of slavery as insults to their honor, challenging Congressional opponents of slavery to duels. One, Representative Johathon Cilley, Democrat of Maine, died in a duel in 1838, shot by Representative William J. Graves, Whig of Kentucky. The personal violence of the slaveholders kept Congress from addressing slavery for several decades. From Northerners refusing to accede to the personal violence of slaveholders, the Republican Party rose. The slaveholders responded with intensified violence. On May 19 and 20 of 1856, Representative Charles Sumner, Republican of Massachusetts, gave a fiery anti-slavery speech lasting five hours. On May 22, 1856, Representative Preston Brooks, Democrat of South Carolina, asked the ladies to leave the Senate chamber and assaulted Sumner with a cane. Sumner had to be carried from the Senate chamber and, had a colleague not restrained Brooks, likely would have been killed. The violence continued. On February 6, 1858, during a late-night session of the House, with everyone sleep-deprived and not a few Representatives drunk, a full-scale melee involving perhaps 30 Representatives broke out before the Speaker’s podium in the House.

When the Republican Abraham Lincoln was elected President in 1860 the Southern response was treason, secession, and rebellion. The War of the Rebellion, as the official records call it, was brutal, claiming more American casualties than any war other than World War II. The Southern armies took the opportunity to enslave free blacks. In the South, prisoners of war were treated exceptionally brutally. The white prisoners were starved. The black prisoners were treated as property, enslaved, and often executed.

3. Postbellum

You will eat, by and by
In that glorious land above the sky
Work and pray, live on hay
You'll get pie in the sky when you die
That's a lie! – Anonymous, Pie in the Sky

And it ended with Lee’s surrender at Appomattox, and the assassination of President Lincoln.

The Reconstruction amendments answered the questions of who has rights and who gets to vote with “everyone born in the United States plus naturalized citizens, except felons.”

The assassination of Lincoln left the Tennessee slave owner Andrew Johnson to become President. He proceeded to encourage the Southern states in racism and terrorism against the freed slaves. He pardoned most of the Southern traitors who had rebelled. He was followed by Grant, the general who won the war for the North. Grant was anti-racist but was undercut by the Waite Supreme Court, which weakened the Reconstruction amendments into uselessness.

A corrupt Presidential election led to the Compromise of 1877. All remaining restrictions on Southern white supremacy were lifted. The Waite Court proceeded to declare that corporations had the same rights has human persons and handed down a series of anti-labor decisions. The stochastic slavery of Jim Crow and employment at will replaced the chattel slavery of the antebellum period, and a new aristocracy took power, a coalition of former slaveholders and wealthy businessmen. Again, a deadlocked Congress, and a racist Presidency and Supreme Court held sway.

4. The Great Depression

Once I built a railroad, I made it run, made it race against time.
Once I built a railroad; now it’s done. Brother, can you spare a dime?
– Harburg & Gorney, Brother Can You Spare A Dime

And once again, faced with disaster, the aristocracy lost both Congress and the Presidency. Laws protecting workers were passed, while Jim Crow continued to hold sway in the South. And again the aristocracy responded with threats of violence, deploying the Business Plot of late 1933, a little-known attempt to raise a veterans force against President Franklin D. Roosevelt. The plot was funded by Robert Sterling Clark and Grayson M. P. Murphy. Arms were to be provided by Remington, on credit from the Duponts. The plotters, however, made the bad mistake of approaching retired General Smedley Butler, who took the plot to J. Edgar Hoover of the Department of Investigation, later the FBI. A Congressional investigation followed, with the McCormack–Dickstein committee concluding, “there is no question that these attempts were discussed, were planned, and might have been placed in execution when and if the financial backers deemed it expedient.” For some reason, perhaps the usual deference to the rich or perhaps a deal with President Roosevelt, the principals were not made to testify, no charges were brought, and the press reported the plot as a hoax.

Though the many of the rich remained rich and Jim Crow stood, in that time the aristocracy lost control of the Federal government and many New Deal programs became law despite its opposition. By threatening Supreme Court expansion, Roosevelt even managed to defang the Hughes Court. The Depression ended in World War II, the greatest war that history has yet seen.

5. World War II, the Cold War, and After

First we got the bomb, and that was good
‘Cause we love peace and brotherhood.
Then Russia got the bomb but that’s OK
‘Cause the balance of power’s maintained that way!
– Tom Lehrer, Who’s Next?

In World War II, the USA faced its first international threat in over a century. For the moment, at least, the aristocracy found common cause with the rest of the United States. Afterwards, the aristocracy both renewed its authority and, imagining itself threatened by domestic communists and threatened in reality by nuclear weapons, allowed the majority of the USA (at least the white USA) a modest level of comfort – they wanted to prove that their rule would be benign. For a few decades, it was possible for white Americans to work steadily at decent jobs and have a decent standard of living.

With the election of President Ronald Reagan in 1980, the process of taking all that away began. As the Soviet Union came apart through the 1980s, apparently, the US aristocracy decided there was no more threat from communism, and saw no more need for benign rule. Through this period, in an echo of the antebellum period and the gilded age, the Democratic Party allowed the seating of Supreme Court justices of terrible character. The process of impoverishing the vast majority of Americans culminated in the Crash of 2008. In 2016 mobster Donald Trump was elected to the Presidency. The failed democracy of the antebellum period and the Gilded Age has returned, and the new aristocracy rises. For the moment, a fragile balance holds, but it may fall in the next election. The labor rights gained in the 20^th century are slipping away, the population is widely impoverished, and racism is rising.

6. In the Second Gilded Age

Fashionable fascism dominates the scene
When ends don’t meet it’s easier to justify the means
– Bruce Cockburn, The Trouble With Normal

As of 2022 the United States has returned to the political state of the antebellum period and the gilded age. A Congress deadlocked by the Senate, an anti-democratic Supreme Court, and a mobster plotting to retake the Presidency. The Republican Party is gerrymandering as many states as they can and preparing to fix the next Presidential election, just as they did in 1876.

What steps might be undertaken to break this deadlock, and prevent a future recurrence?

As to the first half of that question, I can only defer to the people actually on the field of combat. I can make suggestions and critique policies and actions, but in the end President Biden, Speaker Pelosi, Leader Schumer, their caucuses, and the various state and Democratic Party officials are the only people in a position to know what to do and to act.

As to preventing a future recurrence, certainly one step that could be taken is to eliminate supermajority requirements, both in the Constitution and in legislative rules (yes, the filibuster, but not only the filibuster.) I wrote about this at some length several months ago. A few highlights of my remarks then:

The supermajority requirement for constitutional amendments and various legislative actions has not led to a sensible caution in making fundamental changes, but rather institutional rigidity. It makes hash of the legal system. Liberals applauded the Court of the mid-20ᵗʰ century. Now conservatives applaud the capricious radical-right Roberts Court of the 21ˢᵗ. We end up with a tortured series of decisions based on complicated interpretations of law because the legislature deadlocks on every controversial issue. The overall effect of the supermajority requirement of the filibuster leads to Congress ceding power to the Presidency and the Supreme Court, both of which have become far too powerful.

The elimination of supermajority requirements for expulsion from Congress would also help, by making it possible to remove people who in no way should be legislators. Beyond that, though, I would look to mechanisms that lead to the election of officials of better character. I would like to see braver legislators, and also better means for removing government officials of poor character from all branches of government. There is no reason for a Louis Dejoy to stay in his position, when he has both extensive conflicts of interest and is actively malfeasant.

While on the subject of malfeasance and executive overreach, abuse of the Presidential pardon power ought to be limited. It has been abused multiple times, first and most dramatically by President Andrew Johnson to pardon the Confederate traitors, but also by Presidents Ford (the traitor Nixon), GHW Bush (the traitors of Iran-Contra), and Trump (the seditionists who supported him, as well as several violent criminals.)

Another improvement would be both simply forbidding abuses of wealth as well as making wealth visible. A consistent factor in these failures of democracy is extensive corruption. We have been on the wrong path here since Buckley v. Valeo (1976), where it was ruled that limits on campaign spending were violations of the First Amendment, on the bizarre theory that money was a form of speech. This has been followed by a series of decisions that have all but legalized direct bribery. The most famous of these is Citizens United, and we have now arrived at Federal Election Commission v. Ted Cruz for Senate, which, if decided in favor of Cruz, as is likely, will – for rich enough candidates – effectively legalize bribery. Not only has bribery been made all but legal, the sources of money are allowed to hide themselves. At the very least, candidates for high office ought to be made to reveal their finances.

And here my path fades out into the trackless wilderness. Mass democracy is a new thing in history; methods of governance are still in flux. I am not aware of any republican system of government that provides any mechanism to choose officials of good character beyond allowing citizens to choose their leaders by some method of vote counting. (There is, admittedly, much political theorizing I am not aware of.) Yet we know that our electoral system is gamed with monotonous regularity by people who, for one reason or another, support a sexist white supremacist aristocracy. There are two centuries of tools that have been built to enable them. They are very good at persuading white voters that they best represent the interests of the white voters, despite enormous flaws of character and near-total incompetence at actual governance.

As a student of such matters, I can only look on with trepidation. The South under Jim Crow was a horrible place: impoverished and cruel to almost all its citizens. And yet its elite – aristocracy – prospered and was respected despite their depredations. Easy to say, as Jim Wright does, “If you truly want a better nation, then you need to be a better citizen” but it is difficult to become a better citizen in such places.

One partial answer is surely to require more disclosure on the part of candidates. I doubt that Donald Trump would have been elected to the presidency had his mob ties and financial affairs been widely publicized.

Another answer is probably to let the psychologists speak. Just as the American Bar Association evaluates judicial nominees, I would like to see psychologists speak to the character of candidates and nominees without fear of retribution.

We need to think more about character, and I do not mean in the sense of “fine upstanding church-going family.” If we are to choose people to govern us, we need competent people of good ethics and we seem incredibly poor at recognizing them. Perhaps a better understanding of character would allow us to make better choices.

7. Prospect

“A republic, if you can keep it.” – Benjamin Franklin

As of this writing, a deadlocked Congress has just failed to pass the Freedom to Vote/John R. Lewis Act, which would have required fair and honest elections in all states; it failed in the deadlocked Senate. Democracy Docket continues to litigate in the states, but they may not win enough of the battles, and no-one knows how the heavily stacked Supreme Court will rule in cases that rise to its purview. Regardless, we must press on. I do not think this will be a loss as total as 1877. People of color, women, gays, will not easily go back to their closets and corners.

Among people who are aware of this history, I often encounter two views: first, that there is no hope of change and, second, that the best thing to do is to throw away the Constitution and start over. As to the first, there has been change and periods of liberation. As to the second, it would be vastly bloody and the same aristocrats that are now ascending would still be powerful and in an excellent position to take advantage of the chaos. It seems to me better to improve what we have than to throw all into bloody chaos and hope that something better emerges.

Mass democracy is still an experiment, new in history. The US government – indeed all democratic government – as of 2022 is not the final form of democracy. It is still finding its way; methods of governance are still being proposed and tested. As always in America, we must turn to the future.