The Second Founding and Democratic Strategy: The Constitution of 1870 vs. the Constitution of 1787

There has been a debate going on within the socialist movement over the past three years about what our political attitude should be regarding the US Constitution. Parker McQueeney got this discussion going with “Why Have a Political Program?,” in which he pointed out that the 1912 Platform of the American Socialist Party called for a new constitutional convention in order to abolish the Senate, the Electoral College, and the power of the Supreme Court to declare legislation unconstitutional. Of course, there had been discussions of the undemocratic nature of the Constitution for many years prior to McQueeney’s article, but he was the first to propose that the problem of the Constitution should be at the top of DSA’s political agenda. Soon after McQueeney’s post, Chris Maisano weighed in with “The Constitution and the Class Struggle,” where he dismissed the immediate demand for a new constitution as “utopian” but agreed that DSA should adopt a program for democratic reconstruction and that the democratic republic is the means by which the transition from capitalist oligarchy to democratic socialism will eventually be achieved. Eric Blanc then followed with “Why Kautsky Was Right (and Why You Should Care),” citing Maisano’s article as providing support for a strategy of first winning an electoral majority within our existing “capitalist democracy” while also fighting at the same time to democratize our admittedly undemocratic political system. I found these formulations ambiguous and paradoxical and put in my two cents against Blanc’s and Maisano’s analyses here and here, arguing that socialist movements in the past didn’t consider the immediate demand for a democratic constitution utopian and that it is a debasement of the meaning of the word to call the US any kind of democracy at all. Lastly, on the eve of DSA beginning the process of drafting a platform for the 2021 Convention, Jonah Martell reiterated the demand for a new constitution in “A Twelve-Step Program for Democrat Addiction.”

It turns out that a few people on DSA’s National Political Committee (NPC) had read McQueeney’s 2018 article, liked it, and invited him to help write the draft of the platform that was adopted at the 2021 Convention (see Interview on the Platform Process and Donald Parkinson’s review of the Convention on YouTube). So, we in DSA are in the odd position of having an official Platform that calls for a new constitutional convention and declares that “The nation that holds itself out as the world’s premier democracy is no democracy at all” and, at the same time, a majority-approved electoral strategy in Resolution Eight that characterizes the U S as a “formally democratic state” in which elections will lead to the formation of a mass working-class party capable of taking state power. In the short term, this electoral strategy has the great advantage of offering a way for DSA members to plug into political activity immediately. Following in the path blazed by Bernie, there are now multiple campaigns for socialist and progressive candidates and causes all across the country for DSA members to join. Fighting for real material gains for the working class within the Democratic Party now, the electoral strategists argue, is the surest way to build up the strength we will need to eventually break with the corporate Democrats and form a real mass socialist party of our own in the future (see Eric Blanc’s “The Birth of the Labour Party Has Many Lessons for Socialists Today”).

Critics see two major flaws in this electoral strategy, one empirical and one conceptual. The empirical flaw is that what the electoral strategy calls “using elections to win reforms that materially advance the interests of the working class” looks to others more like trying to go up a down escalator. Certainly, many people are working really hard to climb to the next step, yet it seems that even with all this work we aren’t making enough progress toward our goals. The conceptual accompaniment to this empirical perception is that the only way to explain why we find ourselves in this predicament is to understand why we lack power in the first place. This conceptual and historical line of inquiry always leads back to the same conclusion: the US is not now and never has been a democracy and the working class has not been able, at least in the last century, to establish its own independent political party. The independence-first critics are convinced that the only way to begin to establish real independent political power is to break ideologically and organizationally from the Democratic Party. Of course, the advocates of the Resolution 8 electoral strategy know this same history and have gone through the same thought processes but just can’t see how a break from the Democratic Party now could possibly produce anything but political isolation and futility. Is there anything new to say about this dilemma?

I think there is something new to say about this problem, but first it is necessary to be clear about the relationship between the goal of democracy and the goal of socialism. In the Communist Manifesto, Marx and Engels wrote that “the first step in the revolution by the working class is to raise the proletariat to the position of ruling class, to win the battle of democracy.” Until the invention of the new theory of the one-party state by the Bolsheviks and the Third International, all Marxist and socialist parties followed Marx and Engels in this belief that the establishment of a democratic republic based on universal and equal representation was the necessary precondition for any advance into socialism. This belief in the necessity of democracy marked off the independent political stance of working class parties from capitalist parties just as sharply as the commitment to socialism did, if not more so. I discussed some of the implications of these two different ways of drawing the dividing line of political independence in “Democracy and Socialism, The Two Edges of Marxism’s Knife,” but that discussion was focused primarily on the histories of the Russian and German Social-Democratic parties because that is where these theories were argued out most fully. I want to bring the theory of working class independence down to a more concrete practical level rooted in the history of the US itself, beginning with the struggle for democracy immediately following the Civil War.

Despite many interpretations to the contrary, our struggle for democracy here in the US actually shares a great deal in common with the struggles for democracy in Russia and Germany because the modern ideology of democracy originated right here in the US with the writings of Paine, Jefferson, and Franklin during the American Revolution. This ideology then spread to Europe, where it was codified in the French Declaration of the Rights of Man and Citizen (and the Rights of Woman by Mary Wollstonecraft). After its suppression following the French Revolution, this radical democratic ideology reemerged in the Chartist Movement in Britain and the revolutions of 1848. At the same time, Marx and Engels integrated these radical democratic principles into their theory of proletarian revolution, which they then passed on to the Germans and Russians. So, in returning to the particulars of US history and politics, we are not leaving the ideologies of German and Russian Marxism for a totally different and separate American ideological and political history. Instead, we are returning to a common history of a world-wide struggle for democracy, a struggle that made a decisive breakthrough here in the US in the aftermath of the Civil War, before it was driven back underground by the counterrevolution against Reconstruction. This story of the Second American Revolution and its reversal is the subject of Eric Foner’s The Second Founding: How the Civil War and Reconstruction Remade the Constitution (2019).

Foner’s book has five interconnected aims: to give an account of an extraordinary and largely neglected period in US history; to explain how the Thirteenth, Fourteenth, and Fifteenth Amendments fundamentally changed the relationship between the states, the federal government, and citizenship; how the ambitions of the Radical Republicans to establish a genuine democracy based on universal and equal rights was thwarted; how the Civil Rights movement of the 1950s and 1960s brought these Civil War amendments back to life and led the Supreme Court to strike down legal segregation and establish the principle of “one person, one vote” in a number of important legislative representation cases; and, finally, that the egalitarian implications of these amendments still have not been fully extended and enacted into law. Most importantly, the equal representation of each state in the Senate continues to stand in flat contradiction to the principle of one person, one vote.

Tom Paine, in commenting on the French Constitution of 1795, which narrowed the electorate to taxpayers from the universal male suffrage promised in the 1793 Constitution, wrote that it was wrong to “disenfranchise any class of men,” since the right to vote was “the primary right by which other rights are protected.” After the Civil War, African-Americans, Radical Republicans, and leaders of the women’s movement believed the same, but it was not until the “one person, one vote” decisions of the Supreme Court in Baker v. Carr (1962), Gray v. Sanders (1963), Reynolds v. Sims (1964), and Wesberry v. Sanders (1964) that this principle was declared inherent in the Constitution under the Equal Protection Clause of the Fourteenth Amendment. Chief Justice Earl Warren, whether consciously or not, echoed Paine in his opinion for the majority in Reynolds that “Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights….” In dissent, however, Justice John Marshall Harlan pointed out a serious short-sightedness in Warren’s constitutional reasoning. Harlan argued that disproportional representation couldn’t possibly be considered unconstitutional because disproportional representation was enshrined in the Constitution from the beginning in the form of the Senate. Of course, neither Warren nor any of the other members of the Supreme Court dared to take up Harlan’s challenge and go on to declare the Senate itself unconstitutional. That argument would have to be made by others.

Since the high tide of judicial liberalism in the Warren Court over fifty years ago, constitutional scholars have continued to wrestle with the problem of what to do about the Senate. Akhil Reed Amar’s proposal to amend the Constitution by a national referendum, based on the inalienable right of popular sovereignty, is probably the most well known. Lynn A. Baker and Samuel H. Dinkin, in “The Senate: An Institution Whose Time Has Gone?”, have suggested that large-state self-partition, judicial review, a general strike, or revolution are other possible paths to constitutional restructuring; but until recently speculations like these have only found a place in the pages of law school journals or small magazines and have not made it out into the public political arena. Eric Orts, a Professor of Legal Studies at the University of Pennsylvania, wants to overcome this separation. In “Senate Democracy,” a legal paper published in January 2019, and in a companion article published at the same time in The Atlantic, Orts proposed that the Senate could be reformed or even abolished simply through the standard legislative procedures of Congress because the principle of one person, one vote has been established constitutional doctrine for more than fifty years. The main obstacles aren’t legal but political. What makes Orts’ proposal even more interesting is that he is running as a candidate for the Senate in the Pennsylvania Democratic primary and his proposal to reform the Senate is part of his platform. (Unfortunately, Orts has recently dropped out of the race due to lack of support, but I believe his effort is just a beginning.)

In any conventional political sense, Orts’ proposal to reform the Senate is no more likely to be successful in the short term than any of the other proposals so far advanced to change the Constitution, but its value does not lie in any prospect for easy or quick change. Rather, its value lies in its political and institutional focus and educational potential. Like Foner, Orts simply takes it for granted that the Constitution of 1787 has been superseded by the Constitution of 1870 and that decisions by Congress and the Supreme Court that ignore this transformation have no more moral, political, or second-founding constitutional legitimacy than Plessy v. Ferguson. Institutionally, Orts moves the primary focus of constitutional commentary from the obscurantist divinations of original intent and precedent into the public political arena. In this context, we should remember that Victor Berger, the first Socialist elected to Congress, introduced a resolution in 1911 to amend the Constitution in order to dissolve the Senate, writing: “Whereas the Senate in particular has become an obstructive and useless body, a menace to the liberties of the people, and an obstacle to social growth…all legislative powers shall be vested in the House of Representatives. Its enactments…shall be the supreme law, and the President shall have no power to veto them, nor shall any court have the power to invalidate them.” Berger’s infusion of opposition to the undemocratic structure of the government into the legislative arena refused to recognize any separation between the demand for a new constitution and demands for everyday reforms. It coupled the demand for reforms with an explanation why those reforms were being blocked. The end goal was integrated with immediate demands, much as Rosa Luxemburg’s support in 1910 for the mass strikes in Germany demanding a democratic republic “tied together all the great struggles of the day with a final aim,” as Paul Frölich put it in his biography of Luxemburg.

What are the implications of the above analysis for DSA? I think we should follow in the path of Paine, the Chartists, Marx, Engels, the Radical Republicans, Berger, Luxemburg, and the Civil Rights movement. The immediate strategic goal of DSA should be to win the battle for democracy. What is the place of socialism in this strategy? Socialism is only possible after the battle for democracy has been won. This ordering of the relationship between democracy and socialism entails certain choices about the content of the demands and ideas we present to the public. Will the projection of a vision of what life could be like in a future socialist society be the primary means by which we seek to persuade people to become politically active? Or should concrete demands for the immediate improvement of peoples’ lives through electoral campaigns and legislation be the primary focus of our work? Or should those concrete demands be coupled simultaneously with criticisms of our undemocratic political system in order to explain the lack of legislative progress and the necessity of democracy? Saying we can do all of these things simultaneously dodges the question. We have limited time, resources, and people, so we have to think about how we can be most effective. While it is certainly true that each of these three different ideological and strategic paths will always attract some followers and will never disappear entirely, that doesn’t relieve any of us individually from having to choose which one we personally think is most important. In my two-edges article cited above, I suggested that “I Want a Democratic Constitution” could become a slogan as popular as “We Are the 99%,” “Fight for Fifteen,” or “Black Lives Matter;” that we might form a Democratic Constitution Caucus in DSA; and that it would be good idea to produce a popular ABCs of Democracy pamphlet.

But we also need to go further. There have been debates in DSA about what constitutes political independence. Should we only endorse and support socialists? Should we use the Democratic Party ballot line or only run independently? Should the undemocratic structure of the Constitution be our major concern, or is the current structure of our “capitalist democracy” only of secondary importance at the present time?

I think the primary political conflict in the US today is between a newly forming democratic majority and an undemocratic corporate-political oligarchy. This fault line cuts through the Democratic Party. How can we tell who is on our side? DSA should make it a requirement for its endorsement that any candidate for national office, socialist or nonsocialist, must advocate and work for a democratic constitution. Candidates at the state and local level may think that such a requirement shouldn’t apply to them, but it is hard to see how any state or local issue is not connected to the enormous economic, political, and judicial power of the national government. I have written elsewhere that there are really only two parties in the US, a newly forming Democratic Constitution party and the party of the old Constitution. DSA should take a leading role in making this Democratic Constitution party a political and organizational reality. Everything else follows from that.