The last time we saw the Federalist Party was in 1816. Still, they occupy an important place in American history—after all, they led the first coup, and a wildly successful one to boot. What, you ask? Recall—the US Constitution. The proto-Federalists seized the opportunity of their leading opponents being out of the country to declare a “Constitutional Convention”, despite the US already having a Constitution—the Articles of Confederation. Conveniently, the population of the country didn’t get to actually vote on this new Constitution.
There's something to this idea. You may recall that the Federalists favored, inter alia, the Bank of the United States. They managed to enact this central bank, and it survived until the first genuinely democratic counterrevolution led by Andrew Jackson destroyed it. No central bank existed in the United States until another anti-democratic coup established the Fed in 1913 (a non-government organization that was ceeded the power to control the American dollar). Revoking the Fed's authority is often discussed by Americans interested in politics, but it is almost anathema among those who actually get elected to office. You might ask if we are on the verge of a similar counterrevolutionary effort now, and if that isn't what Wauk calls the Uniparty really fears.
If you are inclined to accept that the enactment of the Constitution represents a kind of coup, because it represented a real realignment of power that was only covered by a veneer of procedure, there have been several others in American history. Some of these are more-or-less popular, but they all represent points at which the legitimate forms of power transfer were set aside and the result was papered over with legitimacy after the fact. A brief list off the top of my head:
1) The Reconstruction Amendments (13, 14, 15). These were ratified by main force: states were placed under military occupation until they agreed to ratify them as a partial condition of resuming self-government. Notably Congress allowed these states to change their ratification votes from 'no' to 'yes,' but refused to allow free states in the North to change their votes from 'yes' to 'no' when some of them attempted to do so as a protest against the anti-democratic force being used. These amendments are popular today, and probably now enjoy wide democratic approval (especially the 13th). Nevertheless, especially the 14th Amendment centralized power in the Federal government. That power has been used for purposes both good and bad: it was the core of the Civil Rights crusade against Jim Crow, which was good, but it is also behind the current effort to remove a certain candidate from the ballot even though he appears the odds-on favorite to be elected by the people. Love or hate that guy, the move threatens to delegitimize the election and really the entire system in the eyes of much of the citizenry.
2) The Fed, as mentioned already. There was a law passed, but this was really an Article V-level transfer of power from the government to a nongovernmental organization led by the banks and the rich. It definitely would not have survived the amendment process, so they stole it.
3) The New Deal. FDR had a significant amount of democratic legitimacy, but his efforts were unconstitutional -- as the Supreme Court determined several times. So, he ran the court packing scheme in order to (successfully) intimidate the Supreme Court into letting him do exactly what they'd said several times was unconstitutional. The biggest part of this power transfer was allowing Congress to delegate its lawmaking authority to the bureaucracy. That's how we got into the mess with ossification that we have today: it allowed for a vast administrative state of the kind that Max Weber was warning against at about the same time (see the Weber commentary on the sidebar).
*4) The JFK Assassination. I am giving this one an asterisk and not counting it because the facts still aren't fully clear; however, it is widely believed to have been a coup by agents within the government. Was it? I don't know.
4) The Coup against Nixon: The election of 1972 was a landslide in favor of President Nixon, who used it to finalize his end to the JFK/LBJ Vietnam conflict. The administrative state turned against him and worked with his opponents outside the government to set up a popular campaign to impeach him. His resignation was legal, but it resulted in a power transfer to agents of Wauk's "Uniparty" that allowed them to undo much of what they feared he was doing.
5) The Obama-era "Iran Deal." Obama's government set up a series of fake NGOs that they then credentialed by having the White House recognize them and treat them as legitimate experts. The media was thereby taught to listen to them and re-report their 'findings' as if they were real experts. (This is not in dispute: Ben Rhodes, Obama's message guy for this 'echo chamber,' explained it all in an interview with the New Yorker after the fact.) With the appearance of strong NGO support and the media almost universally echoing it, Obama got away with inverting the treaty approval process required by the Constitution. Instead of a 2/3rds majority of the Senate voting to ratify the process, he managed to set things up so that a 2/3rds majority was required to reject his approach. As a consequence, he got his agreement and Iran got a lot of money as well as technical help on nuclear power.
6) The 2020 Election. Setting aside the parts of the controversy that are in dispute, the "fortification" efforts described to the press by participants already suffice to make the election unconstitutional because they weren't carried out by state or Federal legislatures as the Constitution requires. I would also add the courts' refusal to grant standing (most egregious when Texas sued, as the Constitution clearly grants the Supreme Court the authority to resolve disputes between states), so that no one could challenge the results; and the widespread and successful efforts to prevent audits in the affected states, and to disable similar inquiries where they could not be prevented.
There are some other candidates we might mention, but this list already suggests that this kind of coup is an ordinary feature of American politics. When power finds its heart's desire to be out of order with the Constitution, a way is found around the legitimate order and then is papered over. We live with the illusion that the Constitutional order has been maintained since the late 18th century, but in fact it has been fundamentally altered several times without lawful process.
10 comments:
Let's not forget that the 14th also includes language which has been MAL-interpreted as to grant "birthright citizenship"--although the text of the SCOTUS decision(s) is imprecise and not necessarily on-point.
The 14th is arguably the most important amendment since the Bill of Rights. Its major effect wasn't any of the things we've discussed, but to subject all state laws to the Federal courts -- and thus to subjugate all the states, victors and vanquished alike, to a new Federal order.
Thomas Jefferson described the difference betweeen the states and the Federal government as 'looking in' versus 'looking out.' They weren't meant to have overlapping authority, but different authorities. The states would have sovereignty over their internal affairs -- although citizens were free to move -- and the Federal governmenet would have sovereignty over affairs abroad or when states had disputes with each other.
After the 14th, the Federal government was transformed into an overlord with the power to sit in judgment on the states' internal decisions. This was a tremendously consequential shift, and even though it has been used sometimes for good purposes -- such as eliminating Jim Crow -- it was an unwise decision by the free states who voted to ratify it. They gave up their own sovereignty as the price of taking away the South's.
The proto-Federalists seized the opportunity of their leading opponents being out of the country to declare a “Constitutional Convention”, despite the US already having a Constitution—the Articles of Confederation. Conveniently, the population of the country didn’t get to actually vote on this new Constitution.
Well, as I understand it, the states agreed to a convention to amend the Articles, but the delegates decided to just write a new constitution. So, it didn't come out of the blue quite like that.
Also, just as conveniently, the population never got to vote on the Articles of Confederation. The states voted in both cases. Why was it OK for the Articles but not the Constitution?
There was more than a year of debate between when the Constitution was proposed and ratified, so plenty of time for its opponents to weigh in on the matter.
So, I don't really see that as a coup in any meaningful sense, unless we call any change the Antifederalists disagree with a coup. I'm open to any further explanations anyone wants to give, of course.
As for the rest, I think the point about the 13th-15th amendments is a good one, although I'm not sure it constitutes a coup. Maybe the 14th ...
I'm not sure about the Fed. Congress delegated power and can take it back, so it was a big change, but not really a coup, per se.
FDR's Supremes certainly effected a revolution. I've said that for years, and some historians have called it one. That revolution enabled some parts of the New Deal, so I see it as a USSC revolution, not a New Deal revolution. (Although I guess you could call FDR's whole project the New Deal. I've always associated that term with specific legislation.)
*4 I'm very skeptical of. It's not impossible that government agents were responsible, but I'd have to see a lot of evidence before I bought into it.
I have no idea whether the Nixon thing would count as a coup.
I haven't heard that about Obama's Iran deal -- news to me! I'm not doubting you, just surprised. I see how that's nefarious and maybe even treasonous, but how was it a coup?
I think that's my main question about all of this. How are these things coups?
Of course, the 2020 election very well might qualify. I think stealing a presidential election counts as a proper form of coup. And I agree about FDR's Supremes. If JFK's assassination was arranged by agents of the US government, okay, that was a coup (though I still don't believe that happened).
But what about the rest?
Oh, and birthright citizenship needs to be done away with posthaste. Given the arguments over whether former slaves (and black Americans in general) were citizens or not, it makes sense to just say if they were born here they are citizens. But we are way past that point now.
...the population never got to vote on the Articles of Confederation. The states voted in both cases. Why was it OK for the Articles but not the Constitution?
They were two entirely different documents. Only the Constitution was a document more or less for the people, and the States, in general, greatly broadened the franchise to permit wider swaths of the populations to vote for the delegates who would do the actual voting for/against ratification.
The Articles of Convention, on the other hand, was no constitution. It was, instead, more of a mutual support treaty among independent States--the newly independent colonies become States. Thus, the only folks with any say in approving the Articles were the government men of those 13 States.
...any change the Antifederalists disagree with a coup....
I'll leave the labeling to others. The Anti-Federalists, though, got much of what they wanted in the end. They supported ratification on the promise that they would get those things as Amendments. The 1st Congress proposed them, and most were ratified, pretty promptly, as the Bill of Rights, although this time with the more ordinary franchise, and more directly, without the delegates middlemen.
That revolution enabled some parts of the New Deal, so I see it as a USSC revolution, not a New Deal revolution.
I think that was more of an FDR slow-coup (OK, I'm not leaving off all labels) rather than a New Deal or USSC revolution. By the time of Wickard v Filburn in 1942, FDR had succeeded in appointing 8 of the 9 Justices. He got his stack without expanding the Court.
If JFK's assassination was arranged by agents of the US government, okay, that was a coup....
As I understand what's being considered a coup, there must have some desired new guy/government installed in place of what's being tossed. If the JFK assassination was a coup, who was the desired new guy that the CIA wanted? Certainly not LBJ, who didn't get along with them any better.
Eric Hines
Hi, Eric,
So, are you agreeing with the OP claims about the Constitution being a coup?
On FDR, I see your point. However we label it, I think it was a revolution in that it illegitimately changed the form of government. It doesn't seem to have been a coup in that the same leaders were in charge before and after, though.
I still don't really understand how "coup" is being defined in this post.
I don't see any point in getting exercised about a technical definition. When I said that "there's something to it," I didn't mean "that's exactly right," but rather that there's an idea worth considering there. That idea, I think, is that there have regularly been extra-legal changes to the power structure in which people who had momentary advantages have leveraged them to create structural changes that benefited their side. Those have been papered over in order to mask the degree to which the strict forms of constitutional law and legitimacy were set aside.
It may be that part of the confusion is in the term "revolution" rather than "coup." I claim that there are two types of revolution that can be in play. One is revolution that is nothing more than a very large change from what used to be the status quo to what becomes the new status quo. That change can be relatively quick, like Wickard which authorized the erstwhile outward-looking Federal government to reach inside the erstwhile inward-looking States to tell the States how they would conduct their internal economic business, or it can be a long-ish series of small changes, no one of which seems that big a deal but that over time accumulates to a revolutionarily different form of...whatever is being changed.
The other form of revolution is the sharp political one, often done with military means, like our War of Independence, conducted with the explicit purpose of radically altering the politics and political structures then at hand.
To finally get at your question, Tom, I think the changes to our Court-specified Constitutional meanings, especially post-Wickard which extended far beyond economics (but there were drifts before then, too), amount to more of a revolution of the first type.
One last thing: a revolution in that it illegitimately changed the form of government. The (il)legitimacy of a revolution depends on who won the fight. That's the case, too, in my first form of revolution, at least according to the late Justice Antonin Scalia, who said that one of his criteria for deciding whether to overrule a precedent or toss a statute was whether the precedent or statute had come to be accepted by the people.
Eric Hines
Grim, I didn't feel so much exercised as confused; the meaning wasn't clear to me. Thanks for clearing it up; that makes perfect sense.
Thanks, Eric. I agree that there was a revolution w/ Wickard, etc. I don't know that I accept that the winner determines legitimacy. That seems like a very Hegelian idea. There may well be something to the idea, though, as Scalia pointed out. I'll have to think about that.
My starting point is that Wickard, etc., were and are illegitimate, but that they are also a done deal that will take one or more constitutional amendments to rectify.
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