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Constitutional Moments: The People's Voice

By Dylan Ratigan

Today we face a crushing burden of foreclosures, dropping incomes, and a financial elite that has bought our government. The elite consensus is powerful enough to prevent change, no matter who is elected. The situation seems, at least in electoral terms, hopeless. Yet, America has been here before, and has shown remarkable resilience in the darkest of times.

So just how do we get the debate we deserve? How do we root out the corruption, greed, and fraud in our system? Clearly, the root of much evil in our system of government comes from the financing of political campaigns by powerful interests. And the Supreme Court has said that money is speech, and thus, protected by the Constitution. So we must pass a Constitutional amendment to speak back to the Supreme Court, and assert the primacy of government by the people.

But how do we do this? How does one pass a Constitutional amendment in the American system to ban money from politics? It's not a question with an obvious answer, but history has some clues. There have been only twenty seven amendments to the Constitution in over two hundred years of history, ten of which were ratified with the Constitution itself and several of which were procedural in nature. Yet, the basic path to serious Constitutional change is almost always the same -- it requires organizational focus by a dedicated small group, a willingness to build alliances across factional and regional lines, a belief in playing hardball, and a strong and sustained outcry by a large group of citizens. Often, it is accompanied by local, state, and Federal laws that move the legal system in the direction of the amendment for many years before the Constitutional question emerges. Sometimes it is accompanied by sympathetic court cases.

The response to a situation like today's is often Constitutional in nature. In one historical era long past, crowds of Americans similar to the Occupy Wall Street groups gathered to protest foreclosures, to show anger at economic depressions brought on by corruption, and to check banker control of the monetary system. They used well-orchestrated disruptions to block judges from making unjust decisions, to stop sheriffs from foreclosing on properties, and to enforce no-buy covenants when properties went up for auction. They called themselves "regulators", and created a broad-based movement against the corrupt collusion of government officials and a financial elite.

This was the period from the 1760s to the 1780s, and it produced the most magnificent series of Constitutional amendments we have -- the Bill of Rights, which includes the right to free speech and the right to bear arms. The conflict over the Constitution was in fact bitter and based on conflicts between debtors and creditor-bankers. The first draft of the Constitution was written by a small group of wealthy men, and it was a document with strong economic implications. The Constitution granted the right to coin money to Congress, and took that right away from states who had varying democratic mechanisms to create money. This dramatically reduced inflation, privileging the banking class.

Beyond that, one of the first bills passed after ratification of the Constitution was the Assumption Act, which Federalized state debt and made millionaires out of many of Alexander Hamilton's friends at the expense of farmers who did not know the bonds they held had suddenly became US Treasury bonds valued at par. Because of the ground swell of anger at elites, many states refused to ratify this document. They required a bill of rights guaranteeing free speech, assembly, religious freedom, freedom from unreasonable search and seizure, from torture, from property seizures and quartering of soldiers, and the right to bear arms. The anger during this period, anger from soldiers of the Revolutionary War who had not been paid, was codified in amendments that still protect our freedoms today.

Constitutional change has always happened this way, with the public demanding its rights from an elite that at first resists, then splits, and then relents. There have been four significant periods of Constitutional change in American history. The first was, of course, the ratification of the Bill of Rights. The second set of Amendments were the post-Civil War "Reconstruction Amendments" banning slavery, granting citizenship to all male citizens and barring discrimination against the right to vote based on race. The passion of the abolitionists, organizing for decades, forced the expansion of rights to more Americans. The banning of slavery happened gradually; first the slave trade was banned, then abolition coursed through the Northern states and territories, and finally there was a Civil war. But even with their moral case as secure as it was, it was railroad barons that were critical allies of the abolitionists, as well as those who sought a high tariff to industrialize the North. And it required the creation of an entirely new political party, the Republicans, to end slavery and create the most significant Constitutional change since the Revolutionary War. Abraham Lincoln, remember, was a corporate lawyer representing railroad interests, and he was the more moderate of the Presidential candidates running at the time. Horace Greeley had run for President, as had John Fremont in 1856. It was not through purity, but through struggle and alliances, that these amendments freeing the slaves were forged.

The next great wave of Constitutional change occurred in the Progressive era. These have a far more checkered history. The Jim Crow laws stripping black voting rights happened in part, ironically, because of the next great wave of Constitutional amendment organizing. The Anti-Saloon League, the very first and excruciatingly focused single-issue group, began building an indomitable political machine in the mid-1890s. Its focus and willingness to build relationships with anyone who agreed, from the KKK to progressives to nativists to conservative business elites, led to increasing restrictions on alcohol at the local, state, and eventually, Federal level. If you were a politician that didn't want to ban alcohol, the ASL would beat you, much as Grover Norquist does today with his uncompromising stance no taxes. Even after prohibition was shown to be a dismal and catastrophic failure, and "wet" politicians were elected in the early 1930s, state legislatures didn't want to ratify the amendment repealing prohibition for fear of the Anti-Saloon League. The 21st amendment remains the only amendment ratified by state conventions.

The ASL also contributed to the women's suffrage movement and the campaign to legalize the income tax, other amendments passed in this era. Prohibitionists believed that women would be a favorable voting bloc for their interests, since it was women who suffered when their husbands drank to excess. They also wanted to replace the Federal government's main source of revenue -- taxes on alcohol -- with another source. Hence, the income tax.

Simply put, coalition politics matters deeply when undertaking constitutional change.

The final era of Constitutional change is, according to Constitutional scholar Bruce Ackerman, that of the New Deal. While there were no amendments passed in the 1930s, the New Deal was a de facto Constitutional revolution. Labor laws, struck down by earlier Supreme Court decisions, were ratified by massive strikes and a strong popular movement. Child labor was outlawed. There was even a "Bonus Army" encampment in Washington, a march of World War I veterans who were demanding to be paid their deferred salaries from World War I. Francis Townsend set up clubs to promote his concept of Social Security, and Huey Long set up "Share the Wealth" clubs to change the distribution of wealth in America. A large Federal regulatory apparatus was set up in the 1930s, as was Social Security, what would become the safety net. The laws undergirding the New Deal had been passed in states and localities for years, struck down by courts or undermined by inadequate funding. It was only a depression, and then sustained aggressive popular advocacy by labor unions, advocacy groups, veterans groups, and voters, that shifted the Constitutional framework.

Today, we are in a similar Constitutional moment. A financial crisis and crash has shown our elites to be feckless and corrupt, and the social contract undergirding our economic arrangements has fallen apart. It is time for mass organizing, and big ideas, something tea party activists realized, and Obama spoke to in 2008. It is also time for focus, discipline, and the creation of cross-sectional alliances. The Occupy Wall Street movement as well as the Tea Party Movement should agree: our Federal government is bought and sold and rarely represents the people. In our quest to get money out of politics, we are not beginning at square one. There has been an anti-corruption movement against the modern financing system since the 1970s, and we have many allies in this struggle. It is Citizens United and the bailouts, twin representatives that make corruption so explicit, that have shown us we must act. And it is the foreclosure crisis that suggests that if we do not act, we will be acted upon. Such is how Constitutional moments happen. Now it is up to us, the people, to make this our moment, as our forebears have in their moments of crisis.