The “dramatic circumstances” and the origins of the U.S. constitutional order

The foundation of the American system relied decisively on a war of secession which displaced the rule of the loyalists by the local elites, who then gained a full scope of political decision.

Slaves

The exclusion from the American demos of both the slaves and the Indian tribes was decisive in the construction of the U.S. constitutional framework (Zurn, 2010, p. 192). In the case of slavery, its maintenance during the foundation of the Republic was compelling to obtain the support of the Southern States whose rapid economic development relied on the labour force provided by the population recruited in Africa and transferred to America by coercive means.³ After all, the successes of the Revolution and the establishment of the federal government were achieved due to the impressive economic development provided by the production of slave-grown crops of tobacco, rice, sugar, and cotton that slave owners sold on the international market (Berlin, 2004, p. 1257). Slave trade to the American colonies had thrived with the liberalization adopted by the British Crown in 1712 which may be estimated as one of the consequences of the liberal revolution that had taken place in England a couple of decades before (Pettigrew, 2007, p.

Under such circumstances, the 1787 constitutional agreement was basically an agreement to tolerate slavery: the most important compromise in the origi­nal Federal Constitution, the fundamental decision on the allocation of power that encompasses the idea of constitution according to my approach, was that between the States committed to maintaining slavery and the States that had either abolished human bondage or were in the process of doing so (Graber, 2006, p. 93). Such a compromise had, essentially, its institutional translation in the veto power that was conferred to the Southern States through political repre­sentation in order to block any national measure deemed injurious to a Southern economy grounded on forced labour.

The 20-year exemption of the slave trade from federal control, as entailed in Article I, Section 2, Clause I of the original draft, for instance, may be read as an expression of the compromise reached between the Southern delegates and the Northern delegates at the Philadelphia Convention (Fehrenbacher, 2001, p. 37). That the mentioned temporary preservation of the slave trade was a determinant issue of the constitutional product is underscored by the fact that the clause stands as the first independent restraint on congressional powers, prior even to the restriction on the power to suspend the writ of habeas corpus (Spalding, 2014).

The revolution for national liberation and the constitutional Convention, in short, led to the creation of a slaveholding republic. Worries, such as that expressed by John Adams or Thomas Jefferson on pursuing the virtue and the equality that were supposed to cement the new republican government (see Wood, 1998, p. 123) did not encompass any concern towards those groups of the American population subordinated by the most hideous coercions. Even though Jefferson wrote that “all men are created equal” and tried to blame American slavery in the Declaration of Independence’s original draft, such movements had not deprived him from being a slaveholder himself, as were the majority of the figures of the Founding, and some political leaders of the next generations [from George Washington, James Madison, James Monroe, and Andrew Jackson through to John Tyler, James Knox Polk, and Zachary Taylor (on the contradictions between the liberal ideals of the American founders and the institutionalization of slavery see Bailyn, 1992, pp.

It was, certainly, when the founding equilibrium was broken by the different economic developments between the industrious and urbanized North and the rural South that the 1787 original compromise was at stake. This equilibrium was particularly threatened when, given the overwhelming economic development of the North, a demographic expansion was experienced both within the North itself and within the Northwest areas colonized by population from slavery free States (in a way that the majority of representatives and the presidency could be elected without the consent of the Southern citizenry). Northern States integrated by masses of waged free-labour workers (who were employed by capital owners paying salaries) would not tolerate the unfair competition through slavery developed by their Southern counterparts. As James McPherson pointed out (1988, p. 8) tensions between the North and the South escalated when the Federation expanded westwards and, specifically, when an enormous amount of surface was annexed from Mexico after the war against that country in 1846-1848. The question of slavery would become explosive given the territorial gains, since establishing if the new dominions would be free or subjected to human bondage would in effect mark the respective spheres of influence of both Northern States and Southern ones.

Slavery and the evolution of American constitutionalism provide, furthermore, an example that would explain the distinction that I have described in my theoretical elaborations between constitutional transformations vis-a-vis constitutional amendments. If the 1787 Federal Constitution, as I mentioned above, was built upon the consent of the participants in the Convention on exploiting other humans for the sake of the (Southern) elites, the Civil War would make the original agreement burst into pieces, preparing the ground for a new allocation of powers that in fact would not be consolidated until a century later through the Civil Rights Revolution (see Ackerman, 2014).

The 13th, 14th, and 15 th Amendments would certify the Union victory over the Confederative States and would demolish the infrastructure of slavery in the original Constitution entailed in clauses such as the Three-Fifths Clause, the Fugitive Slave Clause, the Importation Clause, and the Proportionate Tax Clause (Albert, 2018, p. 4) but if the decision on the new allocation of power was not implemented shortly after the Civil War, that happened because the military triumph of the Northern elites did not crush completely the dominion of the Southern elites. The Southern planters had lost the war but would win the peace. Slavery would have been abolished and African Americans would have been entitled with the right to vote after 1865, but the economic system of the South based on plantation-type agriculture with cheap labour and the ownership of the land in few hands would persist (Acemoglu and Robinson, 2012, pp. 353-357).

Indigenous peoples

The westward expansion of the United States, that had poisoned the U.S. national politics by the middle of the nineteenth century with the disputes on human bondage, would show another history of violence, killings, and plundering in the contraction and defeat of the original American Peoples, a history that, as we have seen, had already begun during the colonial period and had had, by the founding of the American Republic, its peculiar constitutional translation.

Slavery and aggressions against the indigenous population were two sides of the same coin of oppression. Slaves worked on lands previously looted from the Native Americans. In the first phase the extermination of indigenous nations and the displacement of entire populations were executed under the auspice of British colonization. But the narrative of the independence of the American States added a supplementary degree of cynicism, since the supposed fight against the colonialism of the British Empire established a regime that embraced the settler colonialism on a bigger scale.

In fact, in the case of North America, one of the factors that led to the separatist movement was a pro-Indian policy displayed by the British authorities shortly after the expulsion of the French (Johnson, 1997, pp. 131-133) in the aftermath of the Seven Years War (1756-1763). In a royal proclamation of October 7, 1763 (known as the Great Proclamation) it was established that Americans would be forbidden to settle in the territories reserved to Indians “beyond the heads or sources of any of the rivers which fall into the Atlantic Ocean from the West to Northwest.” Such a regulation created an Atlantic-fringe America, inwardly blocked by an Indian interior, and motivated a strong opposition among the colonies since it was seen as an obstacle to the expansion of the American settlers to the boundless lands of the interior. Some of the future leaders of the Revolution, including George Washington (to whom access to land on the frontier was a matter of the utmost importance) saw the Great Proclamation as the main challenge against their development perspectives and, thus, caused a turn in their loyalties. The Great Proclamation had been indeed a British initiative to finish with a war of extermination against the Indians caused by the American

Violence and constituent power in America 99 westward movement. The expansion of the colonists had been responded to by the Indians with the so-called Pontiac's Rebellion adopting the name of the leader of the Ottawa, Chief Pontiac, who tried unfruitfully to stop the white settlers' advance over their lands (Middlekauff, 2007, pp. 59-60).

With independence, and definitely released from the British constraints, the form of colonialism that the new authorities practised might be plainly qualified as a genocide (Dunbar-Ortiz, 2014, pp. 6-9): it included “killing members of the group,” the inflicting of “serious bodily or mental harm to members of the group,” the “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,” the imposition “of measures intended to prevent births within the group,” and the transfer “forcibly of the children of the group to another group.” All these measures were accompanied by the unrestrained taking of land and resources backed by armies in an atmosphere of tremendous violence.

Throughout the decades that encompass the fight for independence, the Confederation, and the framing of the U.S. Constitution, it must be observed that the conflicts between the separatists and the indigenous groups were deployed on multiple fronts. The settler's war against the British overlapped a series of Indian wars against the Shawnee and the Delaware Nations in Ohio (Anderson and Cayton, 2005, pp. 104-159; Grenier, 2005, pp. 170-172) against the Cherokee through the attacks launched from Virginia, Georgia, and North and South Carolina (Grenier, 2005, pp. 51-53) and against the Six Nations Iroquois at the western edge of New York (Dunbar-Ortiz, 2014, pp. 166-168). In all of them separatist settler-rangers used extreme violence against indigenous non-combatants with the goals of total subjugation or expulsion. During the War of Independence some indigenous nations still had indeed the opportunity to negotiate an alliance with the British against the separatists, thus reinforcing their resistance against settler-squatters. But afterwards, with Britain's withdrawal in 1783, the new authorities' atrocities against indigenous nations were unrestrained. The fight between the American Republic and the Indian tribes was a crucial factor in the creation of the U.S. Federation, since it propelled the consolidation of the federal army and, thus, a basic means of coercion. It also provided a huge area with resources to be exploited, including the revenues obtained by the federal government (the primary revenue source for the federal authorities) when it sold the confiscated land to the settlers.

Indians had been explicitly treated by the constitutional system as outsiders of the Republic. That basically happened through both (1) the provisions of the Federal Constitution that conferred to the Federal authorities the powers on commerce and treaty-making with the Indian tribes and (2) the regulation that excluded Indians from taxation [which was likely to allude to the Indian's exclusion as citizens (Pommersheim, 2012, p. 3)]. The 1787 Constitutional design, summarily, handled the American native population as aliens. Such an approach (that may be defined under the same logic that ruled the relations between the United States and other sovereign entities) did not give account, nevertheless, of the status of the tribes already absorbed within the 13 original

colonies. The making process of the U.S. Federal Constitution certified the subjugation of the Indians, the violence exercised upon them, and the land usurpation that they had to suffer before the establishment of the Federation. Such invisibility of the Indians as members of the original American States and such denial of the illegitimate means by which they were dispossessed of wealth and political status in the time of the colonization would be, in fact, transferred to the other Indian tribes settled westwards as long as the Federal authorities conquered their territories and the American white citizens occupied their lands.⁴ Federal authorities, beginning with the Supreme Court, didn't hesitate in refusing to admit consequences for the breach of the treaties that the U.S. maintained with the tribes once the army and the settlers occupied Indian territories. Indian tribes began to be considered dependent nations in a state of pupillage as they had no rights upon the land which they inhabited [Johnson v M'Intosh 21 U.S. (8 Wheat.) 543 (1823); Cherokee Nation v Georgia 30 U.S. 1 (1831)] and Congress was considered to have plenary authority over such Peoples [Lone Wolf v. Hitchcock 187 U.S. 553 (1903)]. The Supreme Court, as long as those tribes were falling into de dominions of the U.S. jurisdiction, displayed its doctrine on the blindness towards any Indian identity-grounded claim arguing that any special recognition towards the indigenous peoples would curtail the principle of formal equality [Williams v Lee 358 US 217 (1959)]. But, certainly, the strict application of formal equality in handling with Indian claims only supposed the refusal by the U.S. authorities to consider the Indian's sovereign situation and its control of land and resources before the usurpation.

Integration of the indigenous peoples through constitutional transformations was even still less visible than the path taken through the abolition of slavery (to the extent that one may doubt that the question of the Original Peoples has whatsoever impinged in the allocation of power that the American constitutional system represents). At any rate, by the time in which the struggle between the elites around the cause of slavery exploded in the Civil War, the European set­tlers' descendants carried on with the carnage against the Indians, confirming the original decision already envisaged in the founding, that is, the exclusion of the Indians from the political community. At the end of January 1863, less than a month after Abraham Lincoln issued the Emancipation Proclamation to free slaves during the Civil War, his Union Army committed the worst massacre of Native Americans in U.S. history when they murdered 400 Shoshone at the Bear River. Previously, in December 1862, 38 Dakota men from the hundreds that had been interned in a sort of concentration camp in Minnesota after the Dakota War had been hanged.

Popular classes

As I have suggested, furthermore, the original Constitution as an expression of the allocation of power conceived by the elites to subject other collectives was also focused on the domination ofthe popular classes within the American citizenry? Inequality and social stratification had been developed during the eighteenth

Violence and constituent power in America 101 century and marked the generation of the Revolution. Besides the sumptuous landlords of the Hudson Valley, for instance, whose status resembled that of the European feudal lords, there coexisted a wide range of small freeholders and a still larger mass of poor tenants with scarce possibilities to become freehold­ers (Middlekauff, 2005, pp. 41-42). The growth of the cities also led to the growth of the urban poor population. Gary Nash, in his study on America's pre­revolutionary urban inequality (1976) asserts that in Boston and Philadelphia the lower half of society only held 5 per cent of the taxable wealth and that by 1772 one in four adult men in Philadelphia was poor by the standards of the day.

As we shall see, after independence, the centralization of power that the federal constituent operation represented was considered a reaction against the popular turmoil which spread across some of the States in the 1780s. It had been widely believed, at least since the publication in 1913 of Charles A. Beard's Economic Interpretation of the Constitution, that the 1787 Federal Constitution was a device by which men of property, particularly those holding securities of the State or continental governments, sought to protect themselves and their financial holdings against the dangers of popular rule. As has been widely studied by the American doctrine, the Federal constitutional system is marked by a gamut of instruments devoted to the restraint of popular governance.

Inequality among white Americans meant inequality in the recognition of rights. The regulation of the right to suffrage during the creation of the American Republic gives a good account ofthat [not to mention women, who in most parts of the United States were going to be excluded from voting for more than a century (Keyssar, 2000)]. The consent of the members of the community in establishing the basic rules of society was, thus, far from being attained, whether during the approval of the States' Constitutions or during the framing of the Federal Constitution (Beard, 1964, pp. 24-26). By 1776 all of the recently independent States retained some sort of tax-paying or property qualification for suffrage (Keyssar, 2000, pp. 8-20; Wood, 1998, pp. 167-170). Even the Pennsylvania Constitution, passed within the context of a radical revolution, required the paying of public taxes in order to have the right to vote. In spite of the fact that some States temporarily set aside these property qualifications and allowed all free adult male citizens to vote in the election for the Federal Constitution ratifying Convention (Amar, 2006, p. 7), by the 1790s only about ten to sixteen per cent of America's population could vote. Pecuniary qualifications were still higher for eligibility. According to the 1780 Massachusetts Constitution, for instance, the governor was required to have a freehold worth at least one thousand pounds, senators a freehold of three hundred or six hundred pounds total estate, and representatives a freehold of one hundred pounds or two hundred pounds total estate (Palmer, 1968, p. 352).

Universal white male suffrage was not going to be expanded until the so-called Jacksonian democracy and the requirements to own property or to pay taxes would not be dropped for this sector of population until the fifties of the nineteenth century (North Carolina was the last State to abolish property qualifications for white men by 1856). Once former slaves gained the right to vote after the Civil

War, and the passing of the 15th Amendment, some Southern States, however, adopted poll taxes that had the effect of disenfranchising many blacks, as well as poor whites. Poll taxes, which were an indirect way to deprive some parts of the citizenship of the right to vote, would not be completely abolished until the 1960s through the approval of the 24th Amendment to the Federal Constitution and the passing of the Voting Rights Act (Ackerman, 2014, p. 10).