Property, Commerce, Empire and Corporations Over People, Communities and Nature

Stoney Bird is a former international corporate business lawyer. He changed course after moving to the Skagit Valley in 1990. He has lived in the York neighborhood in Bellingham since 2011, and endeavors to reduce corporate power over local communities and expose the inadequacy of the so-called “environmental” laws, which he feels are basically there to grant permits for harmful projects.

Part 3

This essay is the third in a series begun with the January 2014 issue of Whatcom Watch. For an overview of the series, see that issue.

When I was growing up, the Constitution was described to me, as it must have been to many others, as a document whose brilliance was unexampled among the world’s systems of government. It was a beacon of democracy, and as Abraham Lincoln said, established “government of the people, by the people and for the people.” Its authors stood in a class of their own, paragons of wisdom whose work has never been equalled and never could be. In the last few years I have begun to wonder if this received opinion is correct.

When one looks more closely at what the men gathered in Philadelphia represented, when one analyzes whose interests they were trying to protect, when one looks at the actual course of their negotiations, and when one understands exactly how few of the people resident in the thirteen states actually participated in the vote for adoption, the gloss of the document that they produced seems a little less shiny. And when one studies the accretions that the Supreme Court has contributed, the result seems even less like what we were told.

As the distinguished political scientist, Robert Dahl, asked a few years ago:

“Why should we feel bound today by a document produced more than two centuries ago by a group of fifty-five mortal men, actually signed by only thirty-nine, a fair number of whom were slaveholders, and adopted by only thirteen states by the votes of fewer than two thousand men, all of whom are long since dead and mainly forgotten.”1

One might add that the popular vote in favor of ratification (the vote to elect those 2,000 who attended the state ratifying conventions) consisted of an estimated 100,000 men, which is to say about one-thirty-second of the population then living in these United States.2 We’ll get into the details of the negotiation and adoption of the Constitution further on.

What I have concluded is that we do not have a democracy. We have in some respects the appearance of a republic, but not the actuality. We certainly do not have, and indeed have never had, “government of the people, by the people, and for the people”. And we don’t have a government that carries out what the Declaration of Independence said was the legitimate basis of government: “the consent of the governed.” 3 We’ll go into the contrast between the Declaration and the Constitution in more detail in the next installment of this article.

Since this view of the Constitution is contrary to what we have been told, and contrary to what our hearts want to believe, it is only right to describe the faults in our founding document in a very matter-of-fact way. We’ll start with describing the expressed economic interests of the framers and what the framers said that they hoped to achieve in adopting the Constitution. We’ll see how the structure of government that the Constitution sets up achieved their aims, and then move on to the messy process by which it was negotiated (and which in itself explains a few of the oddities of the structure that it set up). We’ll talk a little about the inventive — and extra-legal — process by which it was adopted, and then how the Supreme Court has continued to find new material in it year after year — in effect amending it without going through the procedures which the Constitution prescribes for amendment. The barriers to democracy in our system as it now exists — and even to a republican form of government — go well beyond the Constitution, and we’ll go into those as well.

Before even addressing the Constitution itself, we’ll briefly investigate one of its primary antecedents: the Doctrine of Discovery, first enunciated in the Papal Bull Dum Diversas of 1452.

Unlimited Exploitation of People and Nature

By 1452, the Infante Henrique, brother of the King of Portugal, and known to history as Henry the Navigator, had been sending his newly invented caravels further and further down the coast of Africa and out into the Atlantic Ocean for several decades. They had “discovered” the Madeira Islands in 1420, the Azores in 1427, and the Canary Islands in 1455. They had reached Cape Verde in 1444. The Infante had several competing motives in traveling to these lands inhabited by “Saracens and infidels”: trade, conquest, exploitation, and saving the souls of those he found by converting them (by the sword if necessary) to Christianity. He wished to receive papal sanction for his plans. And Pope Nicholas V was happy to grant it. The result was the Bull Dum Diversas, the first of a long series of papal pronouncements granting European monarchs the “right,” “girded by the sword of virtue and fortified with strong courage” to “invade, conquer, fight, subjugate the Saracens and pagans” and to “lead their persons in perpetual servitude”.4

Thus was born the infamous Doctrine of Discovery, which is the foundation of all present land titles in the Western Hemisphere and many other parts of the world, and a major “legal” justification for the various assertions of western, white racism and imperial power in subsequent centuries.

With Christopher Columbus’ “discovery” of America, the church hierarchy went into action again, wishing to encourage the imperializing ambitions of European Christian monarchs, and at the same time avoid conflict among them. With the Bull Inter Caetera (1493), Pope Alexander VI divided the newly “discovered” territories of the Western Hemisphere between the monarchs of Spain and Portugal. In the Pope’s own words he granted “all islands and mainlands found and to be found, discovered and to be discovered towards the west and south, by drawing and establishing a line from the Arctic pole, namely the north, to the Antarctic pole.” 5 The only limitation was on lands already “in the actual possession of any Christian king or prince.”

So the squalid imperial scramble began. Not to be outdone, King Henry VII of England issued a “patent” to John Cabot in 1496, under which Cabot was instructed “to find, discover and investigate whatsoever islands, countries, regions or provinces of heathens and infidels, in whatsoever part of the world placed, which before this time were unknown to all Christians,” and “to conquer, occupy and possess” such lands “as our vassals.” 6 Henry’s innovation was to demand a cut. Whatever loot or goods in trade Cabot brought back to England, Henry was to get 20 percent.

The charters which English Kings granted to the Thirteen Colonies were the local, concrete expression of this doctrine. As an example, let’s look at the charter granted by King Charles II to William Penn, the Quaker, in 1681. The charter makes Penn the “true and absolute Proprietarie” of the territory defined in the charter, which is to be called “Pennsylvania.” Although Penn is the “Proprietarie,” Charles and his successors retain “sovereignty.” As rent, each year Penn is to deliver to the King one-fifth of the silver and gold dug up that year — and two beaver skins. He may make any necessary laws (provided that they are “agreeable” to the laws of England), and appoint judges (although appeals are to the King). He may export goods from Pennsylvania only to England. He may raise a militia to protect against “savages, enemies, pirates and robbers.” He may grant sub-fiefs to such persons as he may choose.

In other words, the charter to Penn set him up as a feudal lord, and it superseded the rights of those who happened to be living there already. In particular, it made him the owner (“the true and absolute Proprietarie”) of all the land in Pennsylvania. Under the terms of the Charter, Native Americans already living there no longer owned any part of that territory. This “law” would be held over into the brand new United States. In 1823, John Marshall, first Chief Justice of the U.S. Supreme Court, would intone “the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, … but … their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery [sic!] gave exclusive title to those who made it.” (emphasis added)7

There is much more that could be said about the Doctrine of Discovery. As recently as 2005, it has been cited by the U. S. Supreme Court as the basis for land decisions in the United States.8 It was also the basis for all land titles at the time of the adoption of the Constitution. For now, we must return to the Constitution, the process by which it was adopted, and what was on the minds of the framers as they gathered in that locked and guarded room in Philadelphia. Their property in land was a big part of it, both the land that they already occupied on the East Coast, and the land that they intended to occupy the breadth of the continent. Their “right” to all of it originated with the violent, racist Doctrine of Discovery.

The Economic Interests of the Framers

We can begin with George Washington. He is now reckoned to have been the richest person in the United States when it was founded, and also the richest President in our history. In current dollars, his wealth would be greater than half a billion dollars.9 His wealth arose largely from landholdings, but he was also a lender, owned public debt, held stock in various companies and banks, many of which he had helped to found, and his land was worked by the 300 slaves that he and his wife owned. 10

Of the landholdings, most (about 35,000 acres) were in what is now West Virginia and Kentucky in the vicinity of the Great Kanawha River and the Ohio River. Some of the landholdings he had acquired by purchase. A great many he had acquired through grants in lieu of pay for fighting in the French and Indian Wars (1754-1763). Many more he had obtained by buying up the grants to other veterans at less than the face value. 11

The difficulty with these trans-Appalachian lands was that one could not get to or from them easily. In other words, they were not capable of large-scale commercial exploitation. Washington had long dreamed of the idea of building a canal along the Potomac River. After independence, he formed the Potomac Company for this purpose, and began lobbying the states of Virginia and Maryland to get agreement on the route and — like a good one-percenter — for state subsidies for his project. He couldn’t get them to agree, and so called a conference at his 8,000-acre plantation at Mount Vernon to talk about the need for a strong central government with power to regulate commerce. This meeting led to a second conference at Annapolis, Maryland, and ultimately to the Constitutional Convention in Philadelphia.12

Among those who gathered in Philadelphia, George Washington was fairly typical in his economic interests. In addition to his interests in western land, in preserving slavery, as a holder of Continental securities, his interest in large-scale exploitation of the interior, and as a resident of one of the coastal towns (Alexandria, with a population of about 5,000, was the largest town in Virginia at the time), they added interests in shipping, manufacturing, and general commerce. Five-sixths of those attending the Convention in Philadelphia benefitted financially from the adoption of the Constitution.

Charles Beard, in his magisterial An Economic Interpretation of the Constitution, first published in 1913, and in print ever since, characterized these interests as those of “merchants, money lenders, security holders, manufacturers, shippers, capitalists, and financiers and their professional associates,” not to speak of plantation-owners with large numbers of slaves. On the other side were “non-slaveholding farmers and debtors.” 13

Philadelphia Convention: The Exercise of Wisdom?

One of the main arguments against the thesis that the men in Philadelphia were wise statesmen crafting the ultimate in plan for government is the fact that in at least two significant areas they were just making compromises to get the deal done. This is known as log-rolling. In two instances it was because groups of states refused to go along with any of it unless they got their way.

There were two main power plays among the states that met in Philadelphia. One concerned slavery. The five southern states were adamant that they would not join in unless there was no threat to slavery. Whatever the northern delegates’ moral views on this question, they realized that they had to give in for the sake of a powerful national government that would achieve the ends that they hoped for. These included national control of conflicting land claims in the west, a national army and navy to promote power in relations with foreign countries (and to suppress domestic violence), the power to levy customs duties to protect national industries, a ban on states’ efforts to protect debtors, and national control of commerce.

As a result, the Constitution protected the institution of slavery by banning any interference with the slave trade for twenty years,14 requiring states that had abolished slavery to return escaped slaves,15 counting slaves as three-fifths of a person for purposes of determining representation in the House of Representatives and in the Electoral College.16

This last provision worked as intended. Until the time of the Civil War the South had a majority in Congress most of the time, and most presidents were southerners.

The Thirteenth Amendment abolished slavery in 1865, but these odious remnants of our slave-ridden past are still in the Constitution today.

The creation of the Senate is a second major area of log-rolling. We’ll address the anti-democratic, anti-republican character of the Senate below. Suffice it to say for now that like slavery forced on the rest by the South, equal representation in the Senate was forced on the rest by the small states. As Dahl has said, there is no theory of democratic or republican government which justifies some people (say in Wyoming) having 66 times the representation in the Senate as some other people (say in California).17

The Extra-Legal Process of Adoption

Another reason to question the divine inspiration of the Constitution was the manner in which it was negotiated and adopted. The men in Philadelphia were gathered there by invitation from a Congress that existed under the Articles of Confederation, which was then the adopted foundation of the United States government. The Articles provided a method for their amendment. It was by unanimous consent of the thirteen state legislatures. Congress duly invited the states to send delegates to a national convention “for the sole and express purpose of revising the Articles of Confederation.” After that those who had different ideas took charge. As contemporaries reported:

“So hastily and eagerly did the states comply with the call of Congress for the Convention that their legislatures, without the slightest authority, without ever stopping to consult the people, appointed delegates, and the conclave met at Philadelphia. To it came a few men of character, some more noted for cunning than patriotism, and some who had always been enemies to the independence of America. The doors were shut, secrecy was enjoined, and what then took place no man could tell. But it was well known that the sittings were far from harmonious. Some left the dark conclave before the instrument was framed. Some had the firmness to withhold their hands when it was framed.” 18

There were guards at the door. The windows were shuttered. No one was allowed to take any written materials from the meeting room. The minutes of the deliberations were kept secret for 53 years.19 These men knew that their deliberations would not stand the light of day.

The procedure for adoption continued suspect. After those meeting in secret in Philadelphia had reached agreement among themselves, they passed the document to Congress with the request that Congress invite the state legislatures to call ratifying conventions instead of following the procedure mandated by the Articles of Confederation (for all of the state legislatures to approve any amendment). And instead of requiring unanimity among the states, the procedure actually followed said that the new constitution would come into effect when only nine of the thirteen states had agreed. Congress went along. In other words, Congress connived in the plan to adopt the Constitution extra-legally.

When the state ratifying conventions were called, a majority of delegates in New York, Massachusetts and New Hampshire (and most likely the popular vote in those states) opposed ratification. In Virginia, the most populous state, the popular vote was evenly divided. In Pennsylvania, the Federalist camp indulged in violence against members of its own legislature, bodily forcing them to attend so that a quorum would be present on the vote to call the ratifying convention. There were other irregularities. 20

As I have said, the popular vote by which the ratifying conventions were elected was tiny. Free, white, male, adult property-holders were the only ones with the franchise. 21 In a total population of 3.2 million they constituted perhaps 400,000 individuals (one-eighth of the total population). Of these only 160,000 actually voted, and Beard estimates that only 100,000 of those voting actually favored adoption (one thirty-second of the population).22

Even though the Constitution opens with the words “We the People of the United States,” we are not to take it that “the people” had much to do either with its content or with its adoption. We are also not to take it that it was adopted by legal means.

At the same time, one can but admire the initiative and panache of the Philadelphia gang. They had a plan and they found a way to carry it out. It involved exclusion of seven-eighths of the population at the time from any say at all, and it involved considerable deception of their contemporaries and of future generations — including us. But they got what they wanted.

We may want to return to this idea when we come to the point of figuring out what we want.

Next Month

We’ll go into the structure of government that the Constitution set up and see how it kept “the people” as far as possible away from having actual governing power.

1. Dahl, Robert A., How Democratic is the American Constitution?, 2d ed., 2003, p. 2. Dahl was a professor of political science at Yale University, and at one point served as president of the American Political Science Association.

2. See section entitled The Extra-Legal Process of Adoption: A Coup? below.

3. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

4. Papal Bull Dum Diversas, 1452, http://doctrineofdiscovery.org.

5. Papal Bull Inter Caetera, 1493, http://doctrineofdiscovery.org.

6. Royal Patent to John Cabot, 1496, http://doctrineofdiscovery.org.

7. Johnson v M’Intosh, 21 U.S. 543, 5 L.Ed. 681, 8 Wheat. 543 (1823), at 574.

8. City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005)

9. Sauter, Mike, The Richest Presidents, www.huffingtonpost.com/2013/02/18/richest-us-presidents_n_2702647.html, posted: 02/18/2013 9:49 am EST

10. Beard, Charles, An Economic Interpretation of the Constitution, 1986, p. 144.

11. There is actually severe divergence among historians as to the extent of Washington’s landholdings. Forrest MacDonald, for example, estimates them as being “several hundred thousand acres.” Forrest McDonald, The Presidency of George Washington, 1974, p. 10.

12. Slaughter, Thomas P., The Whiskey Rebellion: Frontier Epilogue to the American Revolution, Oxford University Press, 1988.

13. Beard, op. cit., p. 17. Subsequent historians have criticized Beard and claimed that he oversimplified and unjustifiably denigrated the great men who drafted our founding document. In the end, however, they seemed just to give his categories other names, and agree with the basic thesis. For example, Lee Benson in Turner and Beard: American Historical Writing Reconsidered, 1960, concluded that the divergence was between the “commercial-minded” and the “agrarian-minded”. Jackson Main in The Antifederalists: Critics of the Constitution, 1781-1788, 1961, stressed social and economic lines of division, based principally on geography, between “the areas, or people, who depended on commerce, and those who were largely self-sufficient”. Gordon Wood, in The Creation of the American Republic, 1776-1787, 1969, simply removed the dollar signs, and said that the Constitution “was intrinsically an aristocratic document designed to check the democratic tendencies of the period.”

14. Constitution, Art. I, Sec. 9, Par. 1.

15. Constitution, Art. IV, Sec. 2, Par. 3.

16. Constitution, Art. I, Sec.2, Par. 3.

17. Dahl, op. cit., pp. 48 et seq.

18. McMaster, John Bach, and Frederick D. Stone, Pennsylvania and the Federal Constitution, 1888, p. 20 et seq.

19. celdf.org/democracy-school-curriculum, Sec. D - Betraying the Revolution: A Minority Replicates the English Structure of Law Through the Adoption of the U.S. Constitution, viewed Mar. 25, 2014.

20. “The convention was called by a legislature made up in part of members who had been dragged to their seats and kept there against their wills, and so early a day was set for the election of delegates that many a voter did not know of it until it was passed. Others kept away from the polls because they were ignorant of the new plan; some because they disliked it, and some because they did not think the convention legally called. Of the seventy thousand freemen entitled to vote but thirteen thousand voted.” McMaster and Bach, op. cit., p. 20.

21. Except in Pennsylvania, where any resident for more than a year who paid taxes had the franchise. Beard, op. cit., p. 68.

22. Beard, op. cit., p. 250.