Failing the founders

Scots seem less surprised. The window posters and the debates raging on news channels seem consistent with their own notions of civic engagement. The independence referendum in 2014 brought 85% of the electorate to the polls, the highest turnout in British political history. That included tens of thousands of new voters, the 16-to-18-year-olds granted the franchise for the first time. So much for the disinclination of young people to vote.

In the weeks leading up to the referendum, Scottish citizens argued over the implications of the vote for fishermen and students and bankers. They talked knowledgeably about the effect of the international oil market on the national budget forecasts. They all had views on the future of the National Health Service if their country divorced from England. They understood the implications for national defence. They debated the future of their country.

The same sort of debate raged across the British colonies in America, from the first riots against British troops in Boston in 1770 until the swearing in of George Washington as the first president 19 years later. The arguing went on and on and on – and it still hasn’t stopped.

In taverns and in churches, on street corners and in meetings of provisional assemblies, people argued about the appropriate form of government, about the need for a standing army, about tariffs and duties, about the balance between an agrarian economy and an industrial one, about freedom of expression. Colonials met in assembly after assembly, with delegates debating who should have the right to vote, the sovereignty of state versus federal authority, what currencies should circulate. Pamphlets, newspapers and thousands of leaflets argued every angle of every issue.

They all had one thing in common – an overwhelming desire for self-government, for the mutual tolerance of plurality, for the avoidance of dominance by one sector or one region or one person. They even found ways to accommodate slavery, an odious symptom of oligarchy. But with the invention of the technology for removing the seeds from cotton bolls still to come, slavery had not yet come to drive an entire economic and social system. It was still possible for the competing factions to accept as their national motto, E pluribus unum, ‘From many, one’.

That motto still appears on US dollar notes, but the sentiment no longer prevails in American government. The current president has replaced it with ‘Only I’, an approach today’s Republican Party and its financial backers finds useful.

Hamilton, Paine, Jefferson, the Adams cousins, and a few dozen other Founding Fathers cobbled together a constitutional framework with room for many perspectives. They protected themselves from dominance by the oligarchs through a complex web of checks and balances, but the struggle between the republic and the oligarchs never went away. It was kept alive by the self-serving schemes of such people as Aaron Burr, who wanted to lead a northern secession from the new country.

The competition between oligarchy and republicanism grew to be intolerable in the 70 years after the creation of the new American government. The Civil War ended in the defeat of the cotton aristocracy, but oligarchy reappeared in the next generation with the rise of the robber barons of the late 19th century, the Rockefellers and Carnegies and Vanderbilts.

This time, the Roosevelts, Teddy and then Franklin, led the assault against them. They triumphed with anti-trust mechanisms, an income tax, a social security system and, thanks to Lyndon Johnson, civil rights for all and a universal health care system, at least for those who survived to 65.

Now, the oligarchs are back. They have resurfaced with a concentration of wealth and power not seen in the US for more than 100 years. They have seized control of federal and state government through the ironically named Republican Party. Some of them are serving in government alongside Donald Trump – Wilbur Ross and Rex Tillerson, the cabinet members running the departments of Commerce and State. Others – the Las Vegas billionaire Sheldon Adelson, the chemical industry titans the Koch Brothers, the media baron Rupert Murdoch – are funding the propaganda machines that confuse and disperse the opposition. A new civil war is underway, and there is nothing cold about it. Guns are everywhere.

As the debate raged at the end of the revolution about what form the new government should take, Alexander Hamilton led one faction, the dominant one at the start, the Federalists. As Washington’s chief of staff during the war, Hamilton had watched the continental army suffer from a lack of food and ammunition. He argued for a powerful central authority. How else to establish a stable currency, to create a central bank that could absorb the years of war debt from the states and ensure repayment to protect the creditworthiness of the new country? How else to fund a navy to defend the thousands of miles of coastline? After 12 years of revolution and debate, he yearned for stability to allow the new nation to establish itself.

There was a desire among the delegates for a strong executive, but no agreement on what to call him: Highness, Excellency, Protector of Their Liberties, Majesty, Mr President. He was to be commander-in-chief of the armed forces (there being virtually no army but a growing navy). Balancing him, the upper house of the legislature would have advise-and-consent authority over his senior appointments. The courts would have the final word. The lower house would have the power of the purse. Yet all rights not specifically granted to the federal government in the constitution were to be reserved to the people, or to the states.

Each state replicated this structure with its own constitution, often conferring on its citizens even broader rights than those enunciated in the federal charter. This second layer of checks and balances made government even more inefficient – by design. As an American judge wrote later, in the 19th century, ‘No man’s life, liberty or property are safe while the legislature is in session’. Better to have government watching each other than to be meddling in the affairs of the people.

These days Americans may not vote in the same numbers as those who participated in the Scottish referendum, but they certainly argue at the same rate. Millions of pocket-sized copies of the constitution are in circulation, and every school child who has ever characterised a punishment as ‘cruel and unusual’ knows at least some of the protections enumerated in the Bill of Rights.

Americans spend a staggering sum on political campaigns. In one state legislative campaign in Florida last autumn, a by-election to fill a seat for only a year, the Republican candidate spent $3.5 million, the Democrat $2.5 million. The job pays $29,000 a year. It is one of 120 seats in Florida’s upper house. Even after Annette Taddeo, the Democrat, won, the Republicans still held a 63% majority.

Americans go to the polls to select judges, water commissioners and dog catchers. They elect court clerks and sheriffs. They vote on financing methods for local schools. They hold referenda on building sewer systems, creating parks and merging emergency services between municipalities and their surrounding counties. American ballot papers are often the size of a broadsheet newspaper page.

Yet, voters tend to lose interest as they move down the ballot, from president at the top, to school gymnasium financing at the bottom. With fewer citizens engaged for the offices and issues below the headliners, the system is open to manipulation.

In 2010, the national Republican party used the lack of attention to stage a successful coup. The party poured $25 million into elections to state legislatures. With that and with data-driven campaign tactics, Republicans turned American state government on its head.

Going into the election that year, Democrats controlled 60 state legislative chambers (House or Senate), Republicans 36. By the time the ballot counting was over, the numbers were reversed, 37 for the Democrats, 59 for the Republicans. Democrats had left state legislative candidates to their own resources, and they perished by the hundreds. It has proved devastating, and recovery is going to be slow. The Democrats focused on holding the federal house and senate, but it lost those too. The Republicans by contrast built a fortress at the state and local level that will now reinforce their national political power for a generation. Their goal was the obliteration of other voices, and they achieved it.

The US constitution requires that the government conduct a census every 10 years to determine how many people live where. With the count in hand, the seats in congress are reapportioned among the states to ensure that as closely as possible, each member represents about the same number of people – the one man, one vote rule.

The job of drawing up new congressional district lines in every state falls to the state legislature, in the year following the census. By seizing control of so many state legislatures, Republicans were able to tailor the new districts to ensure that they packed Democrats together, while spreading their own voters as widely as possible to make sure that they maximised the party’s numbers in Washington. This gerrymandering handicapped the Democrats in the House of Representatives by as many as 17 seats by some estimates, an 8% swing, helping to ensure that Republicans would control at least one part of the national government in perpetuity – or at least until Democrats started devoting more resources to state legislative elections.

The same redistricting process takes place at the state and municipal level, controlled by the party in power. So Republicans have cemented into government at every level a system of disproportionate party control, just the sort of situation that George Washington warned of in his Farewell Address as he stepped down as president in 1797.

In the states where Republicans control both the legislature and the governorship, they have launched a ground assault on traditional Democratic voters in cities and among black people, students and urban residents. They curtailed the number of hours that polling places opened, restricted postal voting and sharply reduced the number of polling places. They required that voters present new forms of identification.

The combination of voter suppression and gerrymandering led to further Republican gains over the last eight years at the state and national level. By some estimates, it provided the margin of victory for Donald Trump in such critical states as Florida and Ohio.

For the 2020 election cycle for state legislative races, Republicans expect to spend $125 million, five times the level of eight years ago.

This is not the system that the Founding Fathers designed.

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Many Americans hate government. They’ve hated it since the colonial era. They saw the British crown as taking everything it could and returning nothing. The royal army served as the enforcer, imposing discipline and demanding loyalty. To save the Crown money, soldiers were barracked without compensation or even permission in private homes.

The third amendment to the US constitution: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

The day the fighting started at Lexington, Massachusetts, in the spring of 1775, 700 troops of the world’s finest professional army marched out of Boston to seize a cache of weapons gathered by rebel sympathisers. By the time a detachment of 100 soldiers marched the 17 miles to Concord to search, 400 militiamen had assembled to face them down. They headed back toward Boston without firing a shot or discovering any weapons.

A much larger detachment of 400 redcoats approached Lexington, where they found 77 militiamen in formation on the village green. About 5 o’clock in the afternoon, a shot was fired, and both sides joined in a skirmish. Eight people were killed. The British began an orderly retreat toward Boston. By the time they reached safety, militiamen had arrived from all over eastern Massachusetts, summoned by riders who had fanned out from Boston early that morning shouting, ‘The British are coming!’

The militiamen had been instructed to ride toward Lexington, and when they came within sight of the British columns they dismounted, then fired at will from behind trees, stone walls or barns. What had been a line of 77 men three hours earlier, by nightfall had become a swarm of at least 4,000, perhaps twice that according to some historians.

They carried their own guns, marched to their own orders and fought by their own rules. The British lost 20% of their men, the rebels about 2%. Thomas Jefferson would not pen the Declaration of Independence until the next year, but the war had begun.

The second amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

These two amendments and others like them enumerated the rights of citizens that had been expressed only philosophically and broadly in the constitution that was adopted in 1787. They represented a direct reaction to colonial experience under British rule.

Other amendments neutralised antagonisms or suspicions among the colonies. The first amendment, the one that protects the press and speech, first prohibits government from adopting any law regarding the establishment of a state religion.

Maryland had been founded as a haven for persecuted Roman Catholics, but Georgia had banned Catholics as a threat to public order and registered a Jew as its first citizen. Pennsylvania was founded for Quakers, Massachusetts for Puritans. By banning the promotion by government of any one religion, the framers of the constitution ensured that those in power could not impose their religion on others, no matter what state they lived in, no matter what religious views they held.

The first amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Yet the greatest protection of individual liberty codified in the federal constitution involved the intricate system of checks and balances.

The new country had a chief executive who held some of the same kind of authority as a monarch, but he was checked by a legislative arm, which, like Parliament, had an upper house (Senate) and a lower house (House of Representatives). Senators served six-year terms and were themselves elected by their state legislature, not by voters. House members served two years only, so were more immediately connected to the people, who voted for them directly.

The Supreme Court had the final word on disputes between the federal government and all others and between the states and between the citizens of different states, but the justices were nominated by the president and had to be confirmed by the senate.

To many, it seemed to be a recipe for chaos; to others it seemed to be a defence against tyranny. As George Washington’s chief aide during the revolution, Hamilton had seen how ineffective congress had been as a government. He concluded that only a strong central government could protect the new nation. Hamilton emerged as the leading advocate of a federalist structure with a strong chief executive. He negotiated an agreement with hold-out states to take on their war debt in exchange for their joining the union.

Once elected the first president, Washington named Hamilton secretary of the treasury and supported his move to establish a central bank. As congress divided into political factions, Hamilton emerged as the first leader of a party, the Federalists. In truth, he saw political parties the same way Washington did, as the most dire threat to the republic. They would foster division rather than helping to find common ground. They would rile the passions of the citizenry, tossing out measured debate in favour of mob sentiment.

Mostly, they could become captives of special interests who might hold their own benefit above the interests of the people. But once they had coalesced in the legislative branch, it became impossible to pass laws without their cooperation.

Thomas Jefferson, author of the Declaration of Independence and of the Constitution, served as Hamilton’s foil.

Jefferson believed that ‘the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants’. He thought a central bank would give rise to a powerful central government ready to dominate the individual states, able to go to war at will. It would depend on the creation of an industrial economy which would destroy the idyllic agrarian society he was building at his plantation in western Virginia. Still, he would bide his time, serving as Secretary of State till he could win election to the presidency himself in 1801.

In Hamilton’s view, Jefferson stood prepared to abandon his country to the impetuous common man. Hamilton, the bastard son of a whore – as the hit musical, Hamilton, has it – had somehow managed to complete a university education in New York just before the outbreak of the revolution. He owed allegiance to the humanist ideals of the Scottish Enlightenment. For the new government, he adopted British policies of economics, bureaucratic organisation and foreign affairs. He accepted that other views would prevail from time to time, but he wanted a strong central core to hold the centre together while the debate raged on.

Hamilton and Jefferson disagreed, but neither sought to destroy the other. Those ambitions to dominate rather than to debate thrived in Southern culture. Had the South won the Civil War the culture of domination would have become the norm in American society. A lust for dominance now courses through the Republican Party. It drives the hunger for a trade war, the attraction of the Putins and Dutartes and Kim Jong Un, the need for a massive tax cut.

Trump’s is the government Hamilton feared.

There is a need not just to win but to also crush the opposition, to destroy the constitutional balance, to silence other voices. #MeToo and #NeverAgain may be the first indications that the dominance has failed.

Albert Scardino, a Pulitzer Prize winner, is a freelance commentator on American affairs, living in London