Fight the Constitution! Demand a New Republic!

Ben Grove proposes a radical New Union Act to throw the antiquated US Constitution into the dustbin of history. Reading: Cliff Connolly.

---

It’s October 1917 in Petrograd. The Bolsheviks have given marching orders to an insurrectionary mob. It descends on the Winter Palace, the center of state power in Russia. The defenders melt away, barely even putting up a fight. The Provisional Government has fallen.

What do the revolutionaries do? They are sweatshop workers and peasant soldiers—hungry, ravaged by war, and now surrounded by unimaginable luxury. Do they trash the building? Steal things? Brutalize security? 

The looting begins, but then a nameless voice cries out: ‘Comrades! Don’t touch anything! Don’t take anything! This is the property of the People!’ The mob picks up on the call and repeats it, echoing across the palace: “Revolutionary discipline! Property of the people!”¹

Everything is put back in place. Just for good measure, a committee spontaneously organizes to prevent further looting.²

Here in America, we’ve historically had our own law-abiding insurrectionists. Take old John Brown for an example. Before he launched his daring raid on Harpers Ferry, he held a convention with dozens of supporters to adopt a Provisional Constitution. This fascinating document opens with a sharp legal justification for war on slavery. It lays out basic rules of engagement and sets up institutions to govern everyone taking part in Brown’s revolt.³

The Provisional Constitution displays many signs of Brown’s Calvinist faith. It bans all “profane swearing,” “filthy conversation,” and “unlawful intercourse of the sexes.” Yet it also gives women the right to vote and bear arms, requires every citizen to work, and promises common ownership of all confiscated slaveholder property. There is no Senate in Brown’s political system, only a simple unicameral House of Representatives. The Electoral College is also abandoned—instead, the people directly elect the President and the Supreme Court.⁴

The paintings make John Brown look like a wild insurrectionary tornado. Yet he and the Bolshevik mob understood something that the modern left often forgets: revolutionaries are lawmakers. They demolish the old order, but they also establish a new one.

Brown also understood⁵ that America’s established Constitution is riddled with aristocratic features. The gilded gentry who wrote it in 1787 made atrocious concessions to their slaveholder constituency. The Fugitive Slave Clause required that escaped slaves be “delivered up” to their masters, no matter what state in the Union they fled to. Meanwhile, the Three-Fifths Clause allowed Southern states to count 60% of their slave populations for representation purposes, using their human chattel to inflate their power in the federal government. 

The Electoral College builds on this sinister project. As James Madison himself explained, the convoluted system proved necessary “on the score of the Negroes.” With their massive nonvoting slave populations, slave states would have been disadvantaged under a national popular vote. By instead having statewide slates of electors choose the president, the plantation overlords dodged this democratic threat, propelling their allies into the White House for nearly seventy years. Lincoln broke that cycle in 1860, but to this day the Electoral College leaves Black Southerners almost voiceless in presidential elections. Under the winner-take-all system, their strong support for Democratic presidential candidates typically counts for nothing, with white majorities handing all of their states’ electors to the Republican ticket.

The Framers of the Constitution adopted the Electoral College not only to appease slaveholders, but also to throttle popular democracy. They viewed the people as “unruly steeds,” unfit for self-government. That is why only one branch of the government, the House of Representatives, is elected directly.⁶ The Senate is a thoroughly elitist body, just as the Framers intended.⁷ Its members serve staggered, six-year terms, with two-thirds left in place after each election cycle. Every state gets two senators, despite population trends that make this arrangement more unrepresentative with every passing year. It is essentially affirmative action for conservative white voters. 

Political science hacks like to call the Senate “the world’s greatest deliberative body.” In reality it is the world’s greatest obstructionist body, where “grim reapers” like Mitch McConnell can tank desperately-needed reforms on a whim. It approves all cabinet appointments, treaties, and judicial nominations, locking the House out of countless policy decisions. These absurd privileges have allowed the GOP to pack the federal judiciary with right-wing judges—judges who serve for life, who can strike down any legislation as they see fit.

This rigged system is locked in place by an amendment process so onerous that the Constitution is almost impossible to change. Two-thirds of both houses of Congress followed by three-quarters of the state legislatures must sign off on any change to the Constitution. No other modern country has such a rigid constitutional order. 

Both capitalist parties would have us believe that the Constitution is a Heavenly Charter, ordained by Providence to save us from the Tyranny of the Riotous Majority. We know full well that this is Vain and Perfidious Bullshit. The Constitution protects the tyranny of the elite minority, blocking “wicked” left-wing projects like a “rage for paper money … an abolition of debts … [or] an equal division of property.”⁸ By creating a fragmented, convoluted, and geographically vast political system, the Framers made it almost impossible for popular movements to build a majority and decisively win political power. They invented a government that is structurally indifferent to the needs of the many. 

James Madison summed up the spirit of the Constitution with an old Latin motto: divide et impera.⁹ 

Divide and conquer.

The Wages of Division

Now Madison’s machine is sputtering. America’s most fanatical “patriots” have stormed the nation’s center of constitutional government. No powdered wigs and Latin mottos for that crowd. They had simpler words: “hang Mike Pence!”

Among them were cops, state lawmakers, and real estate brokers. Coddled lapdogs of the Old Order. What drove them to betray the rule of law and form a bloodthirsty lynch mob? 

There were warning signs even before the pandemic. American society is demographically shifting; it is politically gridlocked and rudderless. Quality of life has been stagnant for years. Working-age whites without college degrees feel these changes acutely: they are suffering from staggering levels of chronic pain, addiction, and suicide. 

Even the relatively well-off can see the decay and react to it with fear. For centuries the Constitution has catered to the whims of white reactionaries. Now, amid all the chaos, their special status is being challenged. Working class riots tear through the streets, socialists walk in the halls of Congress—and their orange Emperor has fallen. None of these things pose an imminent threat to the Old Order, but Fox News and the growing cesspool of far-right media make them look frightening enough.

MAGA wingnuts may be delusional, but they see something real moving beneath the water. A section of society is fed up with Old America. It wants to wipe out the callous conservatism that dominates our culture, and replace it with something very new. For reactionaries, this future is unthinkable. Their interpretation of the Constitution has one underlying spirit: “All power to the true conservative Americans. All power to myself.” 

Christ said that it is better to maim the body than let your spirit be destroyed in hell. As good Christians, wingnuts were happy to embrace this logic with the Constitution. If “saving America” meant overturning the wishes of the majority, then so be it. After all, the Constitution is against majority rule.

If saving America meant attacking voting rights, then so be it. After all, voting is not a universal right under our Constitution.

If saving America meant lynching the vice president, then grab the rope. After all, there is still no federal law against lynching. Efforts by the House to pass one have repeatedly died in the Senate, once in 1922 and again just last summer. 

Gridlock and division are inevitable in a divide-and-conquer republic. We will find no easy exit. The question for us on the Left is not how to reverse the country’s institutional decay, but how to push through it and come out victorious. 

Option One: Accept the Constitution

One option is to climb the dunghill: accept the Constitution and try to attain power within its framework. To implement desperately-needed measures like Medicare for All, labor reform, or the Green New Deal, the Left would simultaneously contest the presidency, the Senate, and the House of Representatives.

This task would require a sweeping electoral supermajority for socialists that is difficult to envision in any country, let alone the United States. Even the Republican antislavery victory of 1860—the closest thing we have ever had to a “political revolution” in America—did not win a clean trifecta. It took only the House and the presidency. Unwilling to share power, the Southern states rebelled, forfeiting their control of the Senate. 

Such an outcome is extremely unlikely under modern circumstances. We do not have the clean regional division that sliced the Union in half; we have a partisan divide that spans from coast to coast. Shallow platitudes about “ditching the culture war” will not eliminate that division. If the Left abandons its commitment to egalitarian values such as racial equality and reproductive rights, our existing base will view us as traitors. Reactionaries will also see right through the pandering and dismiss us as two-faced politicians. 

If our strategy bows to the slaveholder constitution, we can expect that path to lead us into divided government. Socialists would not be able to pass any legislation without the approval of one of the entrenched capitalist parties. Bernie certainly would have struggled with this reality had he emerged victorious. Ugly compromises would have to be made.

Why does that matter? If the Establishment blocks our policies, couldn’t we place the blame on them, “keep building the movement,” and fight for a trifecta in the next round? After all, it’s not our fault that we have an obstructionist Constitution.

Unfortunately, voters are unlikely to blame these deep structural challenges. They will see yet another progressive politician who won a popular mandate only to “sell out,” just like all the others. They will blame the movement that made big promises and failed, not the senators behind the scenes who forced the failure. “Nothing really changes,” they sigh—and power swings back to the Right. This is exactly what happened when Barack Obama won the presidency in 2008: a wave of populist excitement was squashed by right-wing obstruction. Hope and change were put on hold, and in 2010 the Democrats received an electoral massacre. 

Obama left his supporters completely unprepared. He had no interest in rallying his constituency to insist that the wishes of the majority be respected. But that is exactly what the Left should do: instead of whining about the Electoral College or the Senate or the filibuster, we should attack these roadblocks head-on by demanding an accountable democracy.

Option Two: Rig the Constitution

Oh, but now Obama does have an interest in democracy. In the summer of 2020, just months after his frantic phone calls helped secure Joe Biden’s nomination, Obama watched as cities across America descended into chaos. At John Lewis’s funeral in early July, he urged lawmakers to build on the congressman’s legacy by passing a new Voting Rights Act—and to grant statehood to Puerto Rico and Washington, D.C. If doing that takes eliminating the filibuster, a “Jim Crow relic,” to “secure the God-given rights of every American, then that’s what we should do.” 

Clever. Even if he is only making a  halfhearted effort to manage social decay, Barack Obama is thinking about institutional reform. If Congress enacted the Obama Program, would it give us an accountable majoritarian democracy? 

Not really. A new voting rights act is certainly needed. But what would it do for Black Southerners whose presidential votes get wiped out by the Electoral College, who have almost no representation in the Senate because of the demographic compositions of their states? “You can go anywhere in [South Carolina],” Lindsey Graham croons to his black constituents. “You just need to be conservative, not liberal.”

Abolishing the filibuster is a no-brainer, and D.C. residents certainly deserve statehood, as do Puerto Ricans if they so choose. However, even a 52-state Senate would retain a high level of racial bias. In the words of a recent Data for Progress memo, it is an “irredeemable institution,” structurally hostile to democracy.¹⁰ 

Some pundits have suggested more aggressive solutions. Political scientist David Faris has called for Democrats to “play hardball” against the GOP, not only killing the filibuster and packing the courts, but also dividing California into seven states. This would give Democrats 14 new senators to “fix” their underrepresentation. 

What would this fix look like in practice? Faris describes it as a democratizing reform, but the public is unlikely to perceive it this way. Power is not shifted to a unified national people. It is shifted to the lucky Democrats who happen to live in the Seven Californias. Will Democrats in Wyoming, New York, and Mississippi feel liberated? How will the residents of large Republican states react when Faris denies them the same partition treatment?

You’ll stare at your television as enraged Texans sack Los Angeles with weaponized bulldozers. “It’s so sad that we’ve come to this,” says your grandmother. “I like that Joe, but I never thought partitioning California was a good idea.” 

Fun stuff. The point is simple: Faris’s “hardball” solutions do not create an accountable democracy. They just slice up the People in a new way that happens to favor Democrats. The Electoral College remains in place (even with the partial modifications that Faris supports).  Senators continue to serve staggered terms in gigantic winner-take-all districts. Brett Kavanaugh still sits on the Supreme Court for life. Packing the Senate and the courts is bound to enrage the Right, but these cynical power grabs are unlikely to energize a mass base on our side. It’s just more divide et impera.

Mass politics is not even on Faris’s agenda. His goal is to convince Democratic party operatives to embrace his “hardball” tactics—not a grassroots political movement. Most Democratic leaders, however, are not as clever as Faris and Obama. Just consider Diane Feinstein, who gave Lindsey Graham a hug after he rammed Amy Coney Barrett through Senate confirmation hearings. 

The Harvard Law Review recently published an anonymous proposal that is far more interesting than Faris’s. Titled “Pack the Union,” it suggests that Congress grant statehood to every neighborhood in Washington, D.C. for the sole purpose of amending the constitution. Then these 127 new states would ratify constitutional amendments to effectively abolish the Senate, expand the House of Representatives, implement a national popular vote for the president, and create a new majoritarian amendment process.¹¹

A brilliant plan! Yet at this point, I think it is fair to say that a line has been crossed. Efforts to “pack the Union” with D.C. microstates are unlikely to be judged solely on their legal merits. It is not really an incremental plan to reform the Constitution. It’s just overthrow with extra steps. 

Option Three: Fight the Constitution

So let’s do it. Ditch the silly microstates. Fight the Constitution; demand a New Republic! 

There are some reforms within the Constitution that socialists can and should demand. The Supreme Court, for example, can be remade with term limits, judge rotation, and jurisdiction stripping. We can fight not just to “pack” it, but to eliminate its godlike power to determine the law. 

But to convince our target constituency that these reforms are legitimate, we must attack the entire ideology of Old America. This stodgy, conservative worldview is relentlessly drilled into the American psyche.  From kindergarten to our graves, we learn that equal rights is mob rule, that gridlock is better than progress, that the Founders always know best, and so on. Challenging these assumptions means developing an incisive message of our own: 

Down with the Old Order. We’re sick of this divided republic. It slices up our institutions to make them unaccountable. It lets Mitch McConnell and the Electoral College and nine old men stomp on the needs of the people. It locks the working class majority out of power; it gives us no say in the future of the country. 

John Brown fought for a new constitution. Now the Chilean masses are doing the same. Why shouldn’t modern Americans give it a try? Women had no say in the writing of the existing Constitution; black people had no say; no one alive today has had a say in the system they live under. We deserve a New Union, a unified democratic republic that answers to the working class majority. A constitution that reflects modern principles of fairness and equality, that guarantees healthcare, education, and economic rights. 

The Right says all power to the landlords, to the cops, to the dead Founding Fathers. We say all power to the living, all power to the people, all power to the New Union!

But who would take us seriously? Socialists are weak right now. Isn’t it too soon to demand something so bold? Too soon? Look behind you! Two centuries of sham democracy. Half a million dead from COVID in a system that denies us healthcare, sick leave, basic human dignity. Years of economic turmoil and discontent ahead. Will there ever be an easy time to raise such a transgressive demand? Rip off the band-aid and raise it now. 

Demanding a new constitution will alienate many. Yet it may also strike a chord with a growing progressive constituency that is exhausted with endless gridlock and elitist institutions like the Electoral College. Zoomers and Millennials are far more willing to question their country’s past than previous generations. When a recent Fox News poll asked voters under 30 for their views on the Founding Fathers, 51% chose “villains” or “it depends.” 

Leave the technocratic tinkering to Obama. Weak movements need strong demands. They shock and capture the imagination; they give meaning to our short-term projects; they forge our supporters into a revolutionary oppositional counterculture. 

Back in the 1960s, the Black Panthers demanded a nationwide plebiscite to establish black self-determination in the United States. How many members did they have when they raised that demand? Ten thousand? Twenty thousand? 

Two. It was just Huey P. Newton and Bobby Seale sitting in a dining room, drafting a founding document. That audacity—that strategic insanity—won them the respect of millions. For all its shortcomings, they built a nationwide revolutionary organization that captivates the American Left to this day.

Towards a New Union Act?

How could modern socialists convincingly raise the demand for a new constitution? It is hard to imagine introducing the idea door-to-door, persuading one person at a time. Such a shocking idea needs shows of collective support: street parades, rallies, and electoral campaigns. 

It is also hard to imagine two-thirds of Congress and 38 separate state legislatures signing off on a major constitutional amendment. The Constitution does offer an additional path to reform, the Article V “convention of states.” Yet for our purposes, this process is equally bankrupt. States, rather than the people as a whole, would be represented in this convention, and its proposals would have to be ratified by an outrageous 38 states, just like the conventional process. Only the most pigheaded conservative demands would be up for debate. Article V conventions are a Koch brothers scheme, tailor-made for our enemies.

State-by-state amendment is hopeless. The path is grown over with weeds and thorns, and we will achieve nothing if we try to crawl through it. But there is an alternative approach: instead of crawling, we could point out the absurdity of the system and demand that the federal government clear a new path to constitutional reform. If it refuses to open the door and stand aside, the Old Order will have to be swept away by extraordinary means. 

Let’s get imaginative. Let’s imagine that America’s fledgling socialist movement continues its tentative growth. Let’s imagine that the Democratic Socialists of America learns some new tricks. Even if it doesn’t immediately adopt its own ballot line, it starts recruiting all of its electoral candidates from within its ranks. It runs them in unified slates and has them vote as an independent bloc, against both capitalist parties. 

Suppose that it places a special emphasis on  running candidates for the House of Representatives. During those electoral campaigns, and on the House floor, these fiery socialist agitators could demand that Congress pass a New Union Act.

What would this New Union Act do?

It could open with something along these lines: “An Act of Congress and the Sovereign People. Not subject to judicial review.” 

It could acknowledge that the federal government has failed to establish justice, promote the general welfare, or secure the blessings of liberty as promised in the Preamble of the Constitution. It would also acknowledge that the federal government has systematically violated the universal human rights established under the Declaration of Independence. It has subjected the people to spiraling inequality, a climate apocalypse, vicious police brutality, and unrelenting racial oppression. 

Therefore, the people of the United States have a right to alter or abolish the Constitution as they see fit, by a simple majoritarian mechanism. Even under ordinary circumstances, a free society has every right to do this, as the Framers themselves acknowledged.

The Act would grant instant amnesty and citizenship to all long-term residents of the United States. It would also facilitate self-determination for all oppressed, indigenous, and colonized peoples in the U.S.—from Puerto Rico to Standing Rock. When we bury the old order’s constitution, we will bury the Empire with it. 

Alongside this decolonization process, the Act would organize a nationwide election for a National Assembly. This Assembly would be empowered to propose constitutional reforms and place them on the ballot for ratification by the people, by a simple electoral majority.

This election would be conducted by the federal government, not the states. The US Postal Service and other federal agencies would be reorganized  to manage the process. Voting could be carried out by universal mail-in ballot, with proportional representation in the Assembly to guarantee multiparty democracy.

Meanwhile, the federal government would fund thousands of small-scale conventions so that all citizens could participate in the reform process. Volunteers and repurposed federal employees would be sent to canvass across the country, inviting citizens to get involved. Online and electronic options would be offered free of charge to anyone unable to attend physical meetings. Employers would be required to give their workers paid time off to take part in the conventions. The conventions would collaborate directly with the Assembly and be empowered to call a new national election at any time.

At the end of the process, the Assembly would place its proposals on the ballot for final ratification. Before voting, citizens would be asked to affirm that they have read the proposals and contributed in some way to the convention process. They would also promise to respect the outcome of the referendum no matter the results, as equal citizens of the Union.

And of course, we would be quite clear about what socialists would advocate throughout this assembly process. We will propose that the new republic be as radically democratic as the process that created it. Abolish the presidency, abolish the Senate, abolish the judiciary as we currently know it. All power to an expanded, improved House of Representatives. 

“We demand that Congress initiate this process,” our leaders would declare. “But one way or another, the working people of this country must clear the path to a new republic.”

Objections Answered

This is the kind of solution that socialist leaders should advance. The New Union Act is incisive and principled; it does not pack, partition, or gerrymander. Instead, it calls for the working class to unite in struggle for a decisive break with the past. It encourages a new form of polarization, not just over flags and statues, but between those who support the Old Order and those who do not. At the same time, it advances a new era of universal citizenship, based on mutual obligations and respect. 

The demand also transforms those who raise it. In a country consumed by greed and amorality, it ignites a nationwide struggle for freedom. It lifts the American Left out of petty localism and onto a grand fighting arena that spans from coast to coast.

“But we’ll never win,” some might protest. “It’s a beautiful dream, but even if the House got on board, the Senate and Supreme Court would strike it down in a heartbeat.”

Yes, the barriers are profound. We can’t win a new republic next week or next year. But we can wear the demand on our chests as we struggle to organize the working class, block by block, store by store, and district by district. And as we grow, as the conditions around us continue to deteriorate, perhaps what is impossible right now will start to look more plausible. If we win a majority mandate for the New Union, we will be fully justified as a free people to enact it by any means necessary. Let the Senate and the Supreme Court overrule us: we will appeal to the masses and overturn their decision in the streets.

“But even if you win this National Assembly, the Right could use it too!” others will warn. “What’s to stop them from forcing through an abortion ban or a balanced budget amendment?”

Certainly, they could try. In Madison’s words, these are improper and wicked projects. But thankfully, the New Union Act would initiate a majoritarian process—and whatever the far right believes, it is not a majority. Most Americans have reasonably progressive sentiments, and even Fox News pollsters know it. Demographic trends are also on our side. Put the People together in a disciplined, well-organized process, and we can encourage their best impulses. The National Assembly will not convene tomorrow morning. Winning it will require many years of struggle that will transform the country in ways we could never predict. 

If majority rule serves conservative interests, then why do conservatives oppose it so fervently? Reactionaries have no interest in joining socialists to pursue an egalitarian multiracial democracy. From day one, their goal will be to smash our treasonous conspiracy  to “destroy America.” At best, they will give us free publicity with their hysterical denunciations.

Then there is a final objection: that the demand I suggest is illegal. It would plunge the country into bloodshed and constitutional crisis. If we raise it, what makes us any better than the MAGA mob?

There’s only one honest response to this: we already have bloodshed; we already have crisis, and we already have lawlessness. Warlord cops parade the streets and terrorize working class communities; insurance companies gouge prices, leaving countless patients to rot and die; the President of the United States incites a violent mob, attacking the will of the people, and gets off scot-free. 

The MAGA mob was driven by selfishness, bigotry, and willful ignorance. They fought to destroy democracy; we will struggle and suffer to expand it. When our time comes, we will not be wearing devil horns. We will not smear our shit in the hallways. Our goal will always be to advance a just, orderly replacement of the U.S. Constitution. 

That project will be fraught with challenges. But laws are made for people, and there will be no real healing in this country until the people win a democratic republic that sets them free. There’s another Latin principle that sums it up: Salus populi suprema lex esto – The health of the people is the supreme law. 

In modern practice:

Fight the Constitution! Demand a New Republic!

1. “The Bolsheviks Storm the Winter Palace, 1917” EyeWitness to History, www.eyewitnesstohistory.com (2006).
2. Ibid.
3. Robert L Tsai,“John Brown’s Constitution,” 2010, pp187-204, https://www.bc.edu/content/dam/files/schools/law/bclawreview/pdf/51_1/04_tsai.pdf
4. Ibid.
5. Ibid p158.
6. See Woody Holton, Unruly Americans and the Origins of the Constitution New York 2007, pp5-10.
7. Ibid p251.
8. See Federalist No. 10, https://billofrightsinstitute.org/primary-sources/federalist-no-10
9. See Woody Holton, p10.
10. Data for Progress, “The Senate is an Irredeemable Institution,” pp2-13. https://www.filesforprogress.org/memos/the-senate-is-an-irredeemable-institution.pdf 
11. See Harvard Law Review, “Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation.” https://harvardlawreview.org/2020/01/pack-the-union-a-proposal-to-admit-new-states-for-the-purpose-of-amending-the-constitution-to-ensure-equal-representation/