Reviewing Ferdinand Lundberg's
"Cracks in the Constitution"
Stephen Lendman
Ferdinand Lundberg (1905 - 1995) was a 20th century economist, journalist,
historian and author of such books as The Rich and the Super-Rich: A Study in the
Power of Money Today; The Myth of Democracy; Politicians and Other Scoundrels;
and the subject of this review - Cracks in the Constitution.
Lundberg's book was published twenty-seven years ago, yet remains as powerfully
important and relevant today as then. Simply put, the book is a blockbuster. It's must reading to learn what schools to the highest
levels never teach about the nation's most important document that lays out the
fundamental law of the land in its Preamble, Seven Articles, Bill of Rights,
and 17 other Amendments. Lundberg deconstructs it in depth, separating myth
from reality about what he called "the great totempole
of American society."
He does it in 10 exquisitely written chapters with examples and detail galore
to drive home his key message that our most sacred of all documents is flawed.
It was crafted by 55 mostly ordinary but wealthy self-serving "wheeler
dealers" (among whom only 39 signed), and the result we got and now live
with falls far short of the "Rock of Ages" it's cracked up to be.
That notion is pure myth. This review covers in detail how Lundberg smashed it
in each chapter.
The Sacred Constitution
Lundberg quickly transfixes his readers by disabusing them of notions commonly
held. Despite long-held beliefs, the Constitution is no "masterpiece of
political architecture." It falls far short of "one great apotheosis
(bathed) in quasi-religious light." The finished product was a
"closed labyrinthine affair," not an "open" constitution
like the British model. It
was the product of duplicitous politicians and their close friends scheming to
cut the best deals for themselves by leaving out the great majority of others
who didn't matter.
The myths we learned in school and through the dominant media are legion,
long-standing and widely held among the educated classes. They and most others
believe the framers crafted a Constitution that "powerfully restrained and
fettered" the federal government and created "a limited government
(or a) government of limited powers." It's simply not so because through
the power of the chief executive it can do "whatever it is from time to
time" it wishes. In that respect, it's no more precise and binding than
The Ten Commandments the Judaic and Christian worlds violate freely and willfully
all the time. Even so-called "born-again" types, like the current
President, do it, along with Popes, past and present, and the former Israeli Sephardi chief rabbi, Mordechai Eliyahu, who advocates mass killing by carpet bombing
The "supreme Law of
the Land" here deters no President or sitting government from doing as
they wish, law or no law. The Constitution is easily ignored with impunity by popular or
unpopular governments doing as they please and inventing reasons as
justification. Lundberg is firm in debunking the notion that
It was no different in 1787 when 55 delegates (privileged all) assembled for
four months in the same Philadelphia State House, where the Declaration of
Independence was signed 11 years earlier, to rework the Articles of
Confederation into a Constitution that would last into "remote
futurity," as long as possible, or until others later changed it. None of
them were happy with the finished product but felt it was the best one possible
under the circumstances and better than nothing at all.
The document is "crisply worded" and can easily be read in 20 to 30
minutes and just as easily be totally misunderstood. The sole myth in it is stated in its opening
Preamble words: "We the people of the
At its beginning,
"the people" who mattered were established white male property owning
delegates and members of state ratifying conventions who rammed the
ratification process through, by fair or foul means, in the face of a
"largely indifferent and uncomprehending populace" left out entirely.
They were elected to do it by eligible and interested while males comprising only from 12.5 - 15.5%
of the electorate at the time. Women, blacks, Indians and children
couldn't vote and many or most qualified voters didn't bother to and still
don't. The process, and what it produced, showed "Democracy operatively is
little more than a fantasy."
The American revolution
was nothing more than secession from the British empire changing very little
with one-third of the colonists favoring it (not upper classes), one-third
opposed (mainly upper classes) and another third indifferent to the whole
business. From then
to now, the country is no nearer "government by the people" than
under monarchal or autocratic rule. The latter types rule by application
or threat of force whereas sovereign people are manipulated by other means with
naked force held in reserve if needed.
Lundberg explained the
minimum function of government, ours or others, should be to insure the public
welfare is being broadly served. It's stated in the Preamble and Article
I, Section 8 that "The Congress shall have power to....provide for....(the) general welfare of the
Lundberg reviewed popular
misconceptions about the Constitution saying so many are embedded in the
American psyche it's hard knowing where to begin. He noted the document
is called "The Living Constitution" saying, in fact, it's
"whatever government does or does not do" or uses in whatever way it
wishes. The Constitution defines itself as the "supreme Law of the
Land" in Article VI, Section 2 which it is and includes all amendments,
enacted statutes and treaties made with the concurrence (not ratification) of
the Senate. The people are
left out of the process entirely with Lundberg saying "government
of the people, by the people and for the people" is a "nonexistent entity. The people don't govern either
directly or through 'representatives.' The people are governed."
In sum, although the Constitution served many of the purposes its designers and
supporters envisioned, in
light of the majority populace's great expectations of it, "it has been,
quite plainly, a huge flop." That's made clear below.
"We the People"
Lundberg destroys the romanticism and enthusiasm felt today about the
Constitution and the revolt against
It wasn't easy, though, as only by promising amendments did it happen. The
anti-Federalist opposition demanded and got the "oft-hymned" first
ten amendments, commonly known as the Bill of Rights. In fact, they "made
no great difference," and did little to dilute the 1787 document. More on that below.
Lundberg explained that most anti-Federalists weren't particularly happy either
with the Articles of Confederation or the Constitution. These men were mostly
privileged property owners (all white, of course) squabbling over the means to
get pretty similar ends and having a generally hostile attitude about the
majority population overall. In other words, everyone was not considered
"We the people," which is how radical English Whigs felt and whose
traditions colonists adopted. "The illiterate and underprivileged
(elements) were not much considered" with the "people" again
being the privileged male property owners in charge of everything and out only
for their own self-interest.
Lundberg cited voting patterns earlier, up to his time, and clearly now as
well, to explain how people are left out of the political process. Whether
franchised or not, most don't vote in presidential elections and even fewer
show up for congressional, state and local ones. It indicates the will of the
people needs considerable qualifying because most of them aren't interested,
don't want to bother, don't think it matters, don't understand the whole
process, and decide to opt out and act like nothing's going on. "Although
repugnant to ideologists of democracy," Lundberg stated, "this
conclusion is quite true."
In sum, the relevance of this to the Constitution is that its opening words are
meaningless window dressing. They neither add nor detract from the document
which served as a "screen and launching pad for practically autonomous,
freely improvising politicians (like any others in the world)....the
gentry....sustained (in whatever their endeavors were) by the constitutional
structure" they created for their own self-serving purposes.
What the Framers Thought
This section covers who these men were below as well
as more about them in the section to follow. Here, first off, the record needs
to be set straight about what these very ordinary men (contrary to popularized
myth about them) thought about their creation we extoll
today like it came down from
They understood its defects, that it was full of holes, thought it was the best
they could do under the circumstances, felt it was a mess, but, nonetheless,
believed they could live with it for the time being, hoping it wouldn't come
back to bite them. Lundberg said they likely "kept their fingers
crossed." One other thing was clear, though, despite
"crowd-titillating campaign oratory" about their creation ever since.
Not a single framer suggested "a sheltered haven was being prepared for
the innumerable heavily laden, bedraggled, scrofulous and oppressed of the
earth." On the contrary, they intended to keep them that way showing not a
lot is fundamentally different then than now, and the so-called founders were a pretty devious bunch,
not the noble characters we've been taught to believe.
As already explained, the deal got done with the usual kinds of wheeling and
dealing, and, in the end, a lot of opponents being won over by agreeing to tack
on the so-called Bill of Rights that was deliberately left out at first. The
dominant elements behind the convention were what today are called
nationalists. More precisely, they were "centralizers who were continental
and global in their thinking." The opposition consisted of "localists," later called "states-righters," who preferred a decentralized government.
The "centralizers" wanted a single or central national capital run by
superior people by their definition - the rich and better-connected regardless
of ability. Men like John Adams and John Jay (the first High Court chief
justice) felt government should be run, in
There were no populists in the bunch, no anti-property party, and even the most
vocal civil libertarians, like Jefferson and George Mason, were slave-owners.
Conflicting ideas of concern at the time visualized three central governments
consisting of the
Lundberg spent much time on who the founders were this
review can only touch on. It's enough just to put a few faces on a group of
crass opportunists who today are practically ranked along side the Apostles.
But who's to say those few were any better than others of their day the way
myths are constructed and passed on through the ages unchallenged in mainstream
thinking. And don't forget that, in his first term, George Bush might have been
aiming for sainthood by claiming he got his orders directly from God who told
him to "strike at Al-Queda....and then.... to
strike at Saddam." Even the framers didn't claim that type heavenly connection.
They did have Lundberg's focus beginning with Alexander Hamilton, Washington's wartime
aide-de-camp, first Secretary of the Treasury and acknowledged leader of the
Federalists. Here's what this noted man thought of the Constitution in
Then there's James Madison
miscalled "The Father of the Constitution," which he expressly
repudiated and a year later wrote
"I am not of the number if there be any such, who think the Constitution
lately adopted a faultless work.....(It's) the best that could be obtained from
the jarring interests of the states....Something, anything, was better than
nothing."
Lundberg covered a few other framers most people know little or nothing about
but played their part along with the better known ones. They included men like
Nicholas Gilman from New Hampshire, William Pierce and William Few from
Georgia, Pierce Butler and Charles Pinckney from South Carolina, Robert Morris,
Gouverneur Morris (no relation) and James Wilson from
Pennsylvania, Jonathan Dayton from New Jersey, and James McHenry from Maryland.
Of the total 55 delegates attending, 39 signed and 16 didn't, but doing it or
not was just a pro forma exercise as only the states had power to accept or
reject it. None of the
framers believed the Constitution was the glorious achievement people ever
since were led to believe - quite the opposite, in fact, but most still went
along with it as better than nothing. The nation's second and third
Presidents, Adams and Jefferson, were abroad and didn't attend the convention
although
Lundberg felt Jefferson and Adams' main objection was they had no part in
writing it or were even consulted on what should go in it. They had a point.
The convention ended
Southern delegates were won over for ratification by strengthening chattel
slavery. The Constitution forbade the federal government from emancipating slaves
until
Who the Framers Were
Lundberg asked: "Who were these men about whom so many (unjustifiably)
have rhapsodized? Fifty-five in total showed up in
Further, they didn't, in fact, come to write a new constitution. They were
congressionally authorized only to propose amendments to the prevailing
Articles of Confederation. Little did they all know in May what would emerge in
September, or maybe the ones who counted most did.
Of the 19 non-attending delegates, 11 wanted nothing to do with the affair,
were opposed to it, distrusted it, and thought it rigged from the start. The
other eight had various excuses - illness (political or real), focused at home
with other business, not having their travel expenses covered, and reluctant to
make such a long trip to be away from home and hearth for months.
Of those showing up, 33 were lawyers, 44 present or past members of Congress,
46 had political positions at home, including seven as former governors and
five high state judges. These
were men of note and economic means who promoted their own financial interests
and parallel activity in government. In a word, they were movers and shakers or
as Lundberg called them - "wheeler dealers."
He described the group as a "gathering of the rich, the well-born and,
here and there, the able (with that quality being the exception)."
Washington and Robert Morris were reputed to be the richest men in the country
with property holdings in most cases being their main component of wealth at
the time along with slaveholdings on it. Directly or indirectly as lawyers or
principals, these men were
an assemblage of "planters, bankers, merchants, ship-owners,
slave-traders, smugglers, privateers, money-lenders, investors, and speculators
in land and securities" - essentially a group of powerful figures not much
different from their counterparts today. With a few exceptions, Lundberg
said they'd now be called a "Wall Street crowd."
In their mind, "The
clear aim of the Constitution was to launch a system that would protect, and
enable to flourish, the general interests there represented." With
Further, 27 delegates were future members of Congress, two were future
Presidents, one a future Vice-President, one a Speaker of the House, and five
future High Court justices. They
produced a Constitution generated along predetermined lines by the government
itself by "a small self-selected elite at the center of government
affairs." They did it in deliberately general, vague, ambiguous
language, the product of consummate self-serving insiders. The "people"
were nowhere in sight then or for the later future amendment ratifications, all
of which were done solely by similar-minded self-serving later officials for
their own political purposes. It's always been that way from the beginning, of
course, and is strikingly so today.
Lundberg then reviewed the political background and record of the delegates
starting off with the elder statesman in
"I agree to this Constitution with all its faults....I think a General
Government (is) necessary for us (and) may be a blessing....if
well-administered; (I "farther" believe that's likely) for a Course
of Years (but) can only end in Despotism as other Forms have done before it,
when the People shall have become so corrupted as to need Despotic Government,
being incapable of any other." Imagine such a dark prophecy at the
nation's birth by a man who never met George Bush but was wise enough to know
he'd arrive sooner or later.
Other notable signers were less insightful, or if they were, didn't let on. Two
of them, John Dickinson and William Johnson were members of the 1765 Stamp Act
Congress. Six others were members of the mainly conservative First Continental
Congress of 1774 - Thomas Mifflin, Edmund Randolph, George Read, John Rutledge,
Roger Sherman, and George Washington.
Other important attendees were Elbridge Gerry, Roger Sherman, George Mason,
John Langdon, Robert Morris, Gouverneur Morris (no
relation) and William Livingston. Lundberg called Langdon, Livingston,
Randolph, Rutledge and R. Morris political power bosses or power-brokers of
their day, and Robert Morris was known to his friends and enemies as the
"Great Man." He was the unmatched financial giant of the era with
Lundberg saying "his brain would have made two of Hamilton" and that
his economic and political power at the time were unrivaled matching that of
the House of Morgan in the early 20th century combined with New York's Tammany
Hall.
According to Lundberg, however, this was no "all-star political team"
compared to other more distinguished figures not there - Jefferson, John and
Sam Adams, John Jay, John Hancock, Thomas Paine, Benjamin Rush, Paul Revere,
John Paul Jones, Patrick Henry and many others. Apart from two notables,
Washington and Franklin, as well as Robert Morris, few later became prominent
nationally. In 1787, Madison and Hamilton (
Lundberg noted nothing on
record shows this assemblage to have been extraordinarily learned, profound in
their thinking or even unusually capable. Only 25 attended college, and
"the one man who held the convention together by the mere force of his
presence"....
In point of fact, colleges in those days were quite rudimentary and graduated
students at a much earlier age, often as young as 16, and a bright student
could master the law for a degree in a matter of weeks the way Hamilton did.
The same was true in
Most of the attending delegates also had military backgrounds, but writing
about them kept that information secret. Lundberg stressed it saying "the
gathering took on the complexion of the general staff of the war of the
revolution." Why not, the boss himself was there,
He and the other delegates came to
Other framers began dying off as well, a number of them right after the
convention and at ages considered very young today for some. Robert (JP Morgan) Morris went
bankrupt speculating in public lands and securities, owed millions as a result,
served three and a half ignominious years in debtors' prison, and died broke in
1806. Other framers also speculated and lost heavily in their financial
dealings.
Madison did perform a
hugely important function as an "amanuensis," dutifully and painstakingly
recording the convention proceedings in what historians today call an accurate
and complete stenographic record, the best available. It was not until 1840
that it became public after Congress bought it from his estate. He documented
what Lundberg called "startling" - that the convention delegates were "a group of men
intent upon securing various special economic interests" and weren't the
"philosophically detached cogitators they had been held up in propaganda
to be."
The Gorgeous Convention
Lundberg stared off saying "The constitutional convention of 1787, an
historical event of first-class importance, was itself an entirely routine,
utterly uninspiring political caucus....it produced absolutely no prodigies of
statecraft, no wonders of political (judgment), no vaulting philosophies, no
Promethean vistas." In
point of fact, as already stressed and repeated, what happened contradicts all
we've been "indoctrinated from ears to toes" to believe that's pure
nonsense. Lundberg called the main fantasy the popular conception that
the Constitution is "a document of salvation....a magic talisman."
The central achievement of the convention, and a big one, (at least until 1861)
was the cobbling together of disparate and squabbling states into a union that
held together tenuously for over seven decades but not actually until
As mentioned above, the delegates came to
Those men were George Washington, the larger-than- life victorious general of
the revolution, and "Great Man" Robert Morris, the JP Morgan-type
figure who later went bust because even financial whizards
can succumb to excess greed. Gouverneur Morris also was prominent in the proceedings while
Madison and Hamilton, as already explained, were virtual unknowns.
Lundberg called the convention "very much a prefabricated group
affair" with internal differences over concentrating power in the
President or Congress. Then, there were the "tight nationalizers,
those generally wanting a national government, and lastly in the minority
"states-righters" believing no state power
should be surrendered to a federal authority. "As for flat-out democrats,"
said Lundberg, "there were none in sight." In terms of what they achieved,
he called it "Old Wine in a Fancy New Bottle" with a new name under
new management. The purpose of the convention was to gain formal
approval for what the leading power figures wanted and then get their creation
rammed through the state ratification process to make it the law of the land.
On that score, and after much wheeling and dealing, they achieved mightily.
The convention began in May, went on through three phases for 120 days, and
concluded in September after dozens of parliamentary-type votes to postpone,
reconsider, amend, etc. with a document produced and turned over to a committee
of detail in late July. The final phase ran from August 6 to September 17, nine
states were needed for ratification with the larger, more populous ones,
granting concessions to the small ones to win the day.
Several scenarios or plans were proposed, one of which was the Virginia Plan
envisioning a central national government with a bicameral legislature that, of
course, was adopted. All
the plans were "strongly rightist" or conservative. Members of the
lower house were to be elected by the people and those in the upper body by
members of the lower one. That became the law and stayed that way until the
17th Amendment, ratified in 1913, allowed the people of each state to elect
their own senators.
Also proposed was a chief executive, a national judiciary with a Supreme Court
at the top, and provisions for admitting new states with republican governments
in them all. In addition, the finished Constitution included proposals for
amendments and much else including terms of office and staggered elections to
prevent too many officials being unseated at the same time. The final product was what one
academic observer called a "bundle of compromises" from beginning to
end.
Lundberg described the delegates as "flinty hard-liners, determined to
have their way, never to yield on anything substantial....willing to make
purely political compromises (over) the means of carrying on government (but)
adamantly resistant....when it came to (its) ends." Those were primarily
economic and social, and those were left as they were when ties with
Thinking then was much like today with provisions in the Constitution targeting
the discontented. Congress
was empowered to raise revenue through taxation, always hitting the less
advantaged hardest. It
was authorized to borrow money without limit meaning the people would have to
service the debt. It
was given power to regulate foreign and interstate commerce assuring the rich
their interests would be served, and much more. In sum, the document created "was
the means by which the traditional establishment....was re-establishing
itself" leaving out of the mix the interests of the "common man (who)
in point of fact was going to be allowed to remain....common (with) the
Constitution, contrary to political blarney (offering) him no bonuses for
it."
Lundberg titled one
sub-section: "Down with the People." In it, he caught the mood
of the delegates as expressed by Roger Sherman of
Even
The far-sighted among them
foresaw a bonanza coming from the revolution that came about when the states
passed confiscation acts, putting properties up for sale at bargain prices,
still only affordable to the affluent. It sounds very much like the way
corporate predators planned to pillage and plunder
There was also plenty of
graft to go around, again just like in
Then there was the ratification process itself that turned out to be a tussle
as soon as the Constitution was sent to Congress. Lundberg reviewed the arduous
give and take process of compromise that finally got the document passed by 13
states with three others rejecting it.
This was when adopting the Bill of Rights made the difference. The ones adopted
in the first 10 amendments
weren't for "the people," nowhere in sight, but to provide them to
property owners who wanted:
-- prohibitions against quartering troops in their property,
-- unreasonable searches and seizures there as well,
-- the right to have state militias protect them,
-- the right of people to bear arms, but not the way the 2nd Amendment is today
interpreted,
-- the rights of free speech, the press, religion, assembly and petition, all
to serve monied and propertied interests alone - not
"The People,"
-- due process of law with speedy public trials, and
-- various other provisions worked out through compromise to become our
acclaimed Bill of Rights. Two additional amendments were proposed but rejected
by the majority. They would have banned monopolies and standing armies, matters
of great enormity that might have made a huge difference thereafter. We'll never
know for sure.
Lundberg stressed the importance of the amendments adopted. Without them, the
movement for a second convention likely would have prevailed that might have
derailed the whole process or greatly changed the Constitution's structure.
That possibility had to be avoided at all costs and was by this compromise that had nothing
to do with granting rights to "The People."
Government Free Style
Lundberg destroyed the
popular myth of a government constrained by constitutional checks and balances.
In fact, it can and repeatedly has done anything judged expedient, with or
without popular approval, and within or outside the law of the land. In
this respect, it's no different than most others able to operate the same way
and often do. It's done through "the narrowest possible interpretations of
the Constitution," but it's free to "operate further afield under broader or fanciful official
interpretations" with history recording numerous examples.
Many presidents operated this way. Lundberg noted Kennedy, Johnson, Nixon,
A key point made is that
"government is completely autonomous, detached, in a realm of its
own" with its "main interest (being) economic (for the privileged) at
all times." In
pursuing this aim, "constitutional shackles and barriers (exist only) in
the imaginations of many people" believing in them. Regardless of law, custom or
anything else, sitting
Lundberg went on to
explain the Constitution effectively confers unlimited powers on the government.
He cited Article I, Section 8, Sub-section 18 allotting to Congress power
"to make all laws which shall be necessary and proper for carrying into
execution the foregoing powers, and all other powers vested by this
Constitution....or any department or officer thereof." It's up to
government, of course, to decide what's "necessary"
and "proper" meaning the sky's the limit under the concept of
sovereignty. The
power of government is effectively limited only "by the boundaries of
possibility." Special considerable powers are then afforded the
President, dealt with in a separate section below, and another on the Supreme
Court.
Lundberg explained how the "three divisions of the American government
operate under the immoderately celebrated system of checks and balances"
with the framers believing too much power in the hands of one person or group
of persons was a potential setup for tyranny. Lundberg believed the theory was
false, used the British model to make his case, but he never met George Bush
who might have given him pause.
In
In the British parliamentary system, the government consists of a committee of
the House of Commons called the Cabinet presided over by a prime minister
elected by his party members. He and all cabinet members are elected members of
parliament (MPs) and can be voted in or out in any general election with all
members standing at the same time. It's a vastly different and much fairer
system overall than the convoluted American model even though, in theory, a
British prime minister has much more control of the parliament than a US
president has over the Congress with two parties and numerous disparate
interests.
In practice, many
Lundberg then reviewed the labyrinthine US system the framers devised under the
Roman maxim of "divide and rule" as follows:
-- a powerful (and at times omnipotent) chief executive at the top;
-- a bicameral Congress with a single member in the upper chamber able to
subvert all others in it through the power of the filibuster (meaning pirate in
Spanish);
-- a committee system ruled mostly by seniority or a by political powerbroker;
-- delay and circumlocution deliberately built into the system;
-- a separate judiciary with power to overrule the Congress and Executive;
-- staggered elections to assure continuity by preventing too many of the bums
being thrown out together;
-- a two-party system with multiple constituencies, especially vulnerable to
corruption and the power of big money that runs everything today making the
whole system farcical, dishonest and a democracy only in the minds of the
deceived and delusional.
This is a system under which Lundberg characterized the
Court Over Constitution
Article III of the Constitution establishes the Supreme Court saying only:
"The judicial power shall be vested in one Supreme Court,
and in such inferior courts as the Congress may from time to time ordain and
establish." Congress is explicitly empowered to regulate the Court, but,
in fact, the Court "seems to regulate Congress." Lundberg believed it
was to allow those unelected on it to be blamed for unpopular decisions getting
them off the hook. Congress, if it choose to, has the
upper hand, and even Court decisions on various issues only apply to a specific
case leaving broader interpretations to other rulings if they come.
As for the common notion of "judicial review," it's
unmentioned in the Constitution nor did the convention authorize it.
This concept is derived by deduction from two separate parts of the
Constitution: In Article VI, Section 2 saying the Constitution, laws, and
treaties are the "supreme Law of the Land" and judges are bound by
them; then in Article III, Section 1 saying judicial power applies to all cases
implying judicial review is allowed. Under this interpretation of the law,
appointed judges theoretically "have a power unprecedented in history - to
annul acts of the Congress and President."
Lundberg then reviewed some notable examples of judicial power, first asserted
in the famous Marbury v.
In 1776 and at the time of the convention, few in the country believed in
judicial review with theoreticians like
Lundberg then reviewed numerous other notable Court cases, including the
shameful Dred Scott decision when claimant Scott, a
slave, sued for his freedom on justifiable grounds and lost due to the tenor of
the times.
A few others were:
-- Fletcher v. Peck in 1810 that stabilized the law of property rights,
especially regarding contracts for the purchase of land;
-- Dartmouth College v Woodward in 1819 with the Court holding charters of
private corporations were contracts and as such were protected by the contact
clause;
-- McCulloch V Maryland also in 1819 with the Court ruling a state couldn't tax
the branch of a bank established by an act of Congress;
-- Gibbons v. Ogden in 1824 when the Court upheld the supremacy of the United
States over the states in the regulation of interstate commerce;
-- Plessy v. Ferguson in 1896 with the Court
affirming discrimination in public places;
-- a number of cases, including US v. EC Knight Company in
-- Santa Clara County v.
Southern Pacific Railroad in 1886 when Court reporter JC Bancroft Davis wrote
what the Court refused to refute, thereby granting corporations the legal
status of personhood under the 14th Amendment with all rights and benefits
accruing from it but none of the obligations. In this writer's non-legal
judgment, this decision above all others, adversely changed the course of
history most by opening the door to the kinds of unchecked corporate power and
abuses seen today. It stands as the most far-reaching, abusive and
long-standing of all harmful Court decisions now haunting us.
Lundberg ended this chapter with a section titled "The Corporate State" citing what's
pretty common knowledge today in the age of George Bush. The
Even so, his comments pre-1980 observed how giant corporations arose
"under the ministering hand of government officials, especially in the
courts (and there emerged) wealthy dynasties of successful corporate intrepreneurs, insuring a line of (future) Robber
Barons." With the Constitution forbidding "the granting of titles of
nobility," corporate titans, in fact, had all the "material substance
pertaining to European nobility (making) Money per se....ennobling in the
American scheme."
Gross disparities in income and personal wealth, far more out of proportion now
than three decades ago, are largely the result of these earlier events with
government and business conspiring to make them possible. Earlier, and especially now,
"successful wealthholders in almost every case
had an omnipotent lever at their service: the government, including Congress,
the courts and the chief executive." The constitutional story comes down to a question of
money and money arrangements - who gets it, how, why, when, where, what for,
and under what conditions. Also, who the law leaves out.
This story has nothing
whatever to do with guaranteeing, as they say, life, liberty and the pursuit of
happiness; establishing justice; upholding the rule of law equitably for
everyone; promoting the general welfare; or securing the blessings of freedom
for the general public unconsidered, unimportant and ignored by the three
branches of government serving monied and property
interests only, of which they are part.
This was how it was when
the Constitution was drafted, it stayed that way
through the years, and is written in stone today with Lundberg concluding
"It seems safe to say (this way of things) will never be rectified."
Never is a long time, hopefully on that count he's wrong, but how insightful
and penetrating he was on the constitutional story he revealed equisitely so far with more below, beginning with the
crucially important next section. George Bush will love it if someone reads it
to him or this review.
The Veiled Autocrat
Lundberg's dominant theme
here is that the
A single sentence, easily passed over or misunderstood, constitutes the essence
of presidential power. It effectively grants the Executive near-limitless
power, only constrained to the degree he so chooses. It's from Article II,
Section 1 reading: "The executive power shall be vested in a President of
the United States of America. Article II, Section 3 then almost nonchalantly
adds: "The President shall take care that the laws be faithfully executed"
without saying Presidents are virtually empowered to make laws as well as
execute them even though nothing in the Constitution specifically permits this
practice. More on that below.
Lundberg said the proper way to understand the Constitution is to view it as a
"symphony" with big themes being like separate movements. Theme one
in Article I, Section 1 says "All legislative powers herein granted shall
be vested in a Congress of the United States." Theme two is the dominant
one on the Executive in Article II, Section 1 cited above. The
final movement or theme three deals with "The judicial power."
Lundberg then continued saying "to understand the inner nature of the
Now to the issue of executive power covered in Section 2. It's vast and
frightening. The President:
-- is commander-in-chief of the military and in this capacity is completely
autonomous in peace and a de facto dictator in war; although Article I, Section
8 grants only Congress the right to declare war, the President, in fact, can do
it any time he wishes "without consulting anyone" and, of course, has
done it many times;
-- can grant commutations or pardons except in cases of impeachment. Nixon
resigned remember before near-certain impeachment;
-- can make treaties that become the law of the land, with the advice and
consent of two-thirds of the Senate (not ratification as commonly believed);
can also terminate treaties with a mere announcement as George Bush did
renouncing the important ABM Treaty with the former Soviet Union; in addition, and
with no constitutional sanction, he can rule by decree through executive
agreements with foreign governments that in some cases are momentous ones like
those made at Yalta and Potsdam near the end of WW II. While short of treaties,
they then become the law of the land.
-- can appoint administration officials, diplomats, federal judges with Senate
approval, that's usually routine, or can fill any vacancy through (Senate)
recess appointments; can also discharge any appointed executive official other
than judges and statutory administrative officials;
-- can veto congressional legislation, with history showing through the book's
publication, they're sustained 96% of the time;
-- while Congress alone has appropriating authority, only the President has the
power to release funds for spending by the executive branch or not release
them;
-- Presidents also have a huge bureaucracy at their disposal including powerful
officials like the Secretaries of Defense, State, Treasury and Homeland
Security and the Attorney General in charge of the Justice Department;
-- Presidents also command center stage any time they wish. They can request
and get national prime time television for any purpose with guaranteed
extensive post-appearance coverage promoting his message with nary a
disagreement with it on any issue;
-- throughout history,
going back to George Washington, Presidents have issued Executive Orders (EOs) although the Constitution "nowhere implicitly or
explicitly gives a President (the) power (to make) new law" by issuing
"one-man, often far-reaching" EOs. However,
as Lundberg explained above, the President has so much power he's virtually
able to do whatever he wishes, the only constraint on him being himself and how
he chooses to govern.
-- George Bush also usurped "Unitary Executive" power to brazenly and
openly declare what this section makes clear - that the law is what he says it
is. He proved his intent in six and a half years in office by subverting
congressional legislation through his record-breaking number of
unconstitutional "signing statements" - affecting over 1132 law
provisions through 147 separate "statements," more than all previous
Presidents combined. In so doing, he expanded presidential power even beyond
the usual practices recounted above.
-- Presidents are, in fact, empowered to do almost anything not expressively
forbidden in the Constitution, and very little there is; more importantly, with
a little ingenuity and a lot of license and chutzpah, the President "can
make almost any (constitutional) text mean whatever (he) wants it to mean"
so, in fact, his authority is practically absolute or plenary. And the Supreme
Court supports this notion as an "inherent power of sovereignty,"
according to Lundberg. He explained, if the US has sovereignty, it has all
powers therein, and the President, as the sole executive, can exercise them
freely without constitutional authorization or restraint.
In effect, "the
President....is virtually a sovereign in his own person." Compared
to the power of the President, Congress is mostly "a paper tiger, easily
soothed or repulsed." The courts, as well, can be gotten around with a
little creative exercise of presidential power, and in the case of George Bush,
at times just ignoring their decisions when they disagree with his. As Lundberg put it: "One should never under-estimate the power
of the President....nor over-estimate that of the Supreme Court. The
supposed system of equitable checks and balances does not exist in fact
(because Congress and the courts don't effectively use their constitutional
authority)....the separation in the Constitution between legislative and the
executive is wholly artificial."
Further, it's pure myth that the government is constrained by limited powers.
Quite the opposite is true "which at the point of execution (reside in)
one man," the President. In addition, "Until the American electorate
creates effective political parties (which it never has done),
Congress....will always be pretty much under (Presidents') thumb(s)."
Under the "American
constitutional system (the President) is very much a de facto king."
Lundberg cited examples such as Franklin Roosevelt, considered one of the
nation's three greatest Presidents along with Lincoln and Washington. He
"waged (illegal) naval warfare against Germany before Pearl Harbor."
During the war, he stretched his powers to the limit and functioned as a
dictator. Truman atom-bombed Japan twice gratuitously and criminally with the
war over and the Japanese negotiating surrender. He also went around Congress
to wage a war of aggression on North Korea when its forces attacked the South
after repeated US-directed southern incursions against the North. Lyndon
Johnson attacked North Vietnam February 7, 1965 using the contrived August,
1964 Gulf of Tonkin Resolution as justification even though there was none. The
examples are endless, Presidents take full advantage,
and nearly always get away with it.
The only thing Presidents can't do, in theory, is openly violate the law. But
since he can interpret it creatively, it's up to Congress and the High Court to
hold him to account, and that rarely happens. Nixon was forced to resign to
avoid impeachment because there was smoking gun evidence on tape to convict him
on top of his being roundly disliked making it easier to act. But what he did
overall wasn't unusual except that he paid the price for it.
As Lundberg put it, "highhandedness, unpalatable doings (and)
scandals" are part and parcel of politics from top to bottom in the system
at all levels of government. Jethro Lieberman showed this type behavior "is a steady
occupation at every level of government" in his pre-Watergate book -
"How the Government Breaks the Law." At the executive level,
he showed government proceeds "pretty much ad libitum
outside the stipulated rules at all levels." In other words, the nation was always infested with Nixons at all levels, but most got away with their offenses
and today that's truer than ever.
As for impeaching and convicting a President for malfeasance, Article II, Section
4 states it can only be for "treason, bribery, or other high crimes and
misdemeanors." Based on the historical record, it's near-impossible to do
with no President ever having been removed from office this way, and only two
were impeached, both unjustly.
Lundberg quoted John Adams on this issue saying he was right believing it would
take a national convulsion to remove a President by impeachment, it hasn't
happened up to now, which is not to say it never will with no President more
deserving of the "distinction" than the current sitting one who
almost makes Richard Nixon look saintly by comparison. It's long past the time
to smash the inviolate notion of presidential invincibility, and given the
growing groundswell, it could happen against all odds. If it does, it will be a
first, and if he were still living, it would also make Lundberg rethink his
final comment on the subject that it's "virtually impossible to remove a
President (and) His security in office....is but one facet of his power."
Still remember, an exception, when it happens, only proves the rule, so
Lundberg's assessment is still valid.
Presidential power since WW II is also reinforced by their own private army
through the vast US intelligence apparatus and much more. The CIA is part of it and today
functions mainly as a presidential praetorian guard and global mafia-style hit
squad operating freely outside the law as a powerful rogue agency backed by an
undisclosed budget likely topping $50 billion annually. And since
January, 2003, the Department of Homeland Security functions as a national
Gestapo about as free to do as it pleases as CIA that also operates outside its
mandate on
The Risks in One-Man Rule
Lundberg quoted noted political scientist Herman Finer (1898 - 1969) again
reinforcing what's covered above that "there is (virtually) no limit to
the Chief Executive's power." In six and a half years in office, George
Bush proved he was right and then some. Finer, even in an
earlier less complex era, portrayed the President as overweighted
with responsibilities while having enough concentrated power in his hands to
make irresponsible, rash or dangerous decisions with potentially immense
repercussions.
Finer proposed a way to improve the presidency by relieving one man of more
responsibility than anyone can handle alone and minimize incompetency
or villainy at the same time. His idea was for a collective and supportive
leadership formed around the President, including a cabinet of 11
Vice-Presidents elected in combination with the chief executive every four
years.
The framers structured the
government to frustrate and confuse the electorate. They did it through
staggered elections to avoid a clearly visible line of authority as well as
maintain a continuity of governance whatever else the public might prefer.
Finer wanted to correct these kinds of faults in the current
system. He also understood that Presidents are plucked out of almost
anywhere because of their perceived electability, not
from their ability to govern effectively in an office enough to overwhelm
anyone no matter how able and dedicated.
His idea was for Presidents and Vice-Presidents to be required to have served
in either house of Congress a minimum four years to learn how
Finer also wanted the President and his cabinet to sit in the House of
Representatives to make them more visible and responsible like the British
model. His main concern was that too much responsibility lay with one man, with
too much power to discharge it, and far too often that man turns out to be
incompetent, venal or both. Under the present system, the President is
near-omnipotent, operates in secrecy, is most often the wrong one chosen, and
is able to spring surprises at will, often with potentially disastrous
implications like today under George Bush.
He was also concerned about Presidents having secret ailments, impediments or
becoming seriously ill enough to be unable to govern yet still be able to
retain the power of the office. Woodrow Wilson was a case in point as he
suffered a severe stroke and paralysis on his left side 17 months before his
second term of office expired. His principle biographer said he was
"either gravely ill (his last year in office) or severely incapacitated at
the time the country needed his leadership most."
Franklin Roosevelt is another prime example. At age 39, eleven years before
being elected President, he was stricken with what was thought to be polio and
was permanently paralyzed from the waist down. Yet, he kept his condition
secret and (before the age of television) was never photographed in a
wheelchair in public. In his third term, he was advised not to run for a fourth
time because of his health. He did, of course, and won, but in 1941 his blood
pressure was high and rising, his heart was enlarged, and he suffered from
congestive heart failure from which he finally expired
in April, 1945. By early 1944, he was in marked decline and a dying man.
With the most calamitous war in history in its late stages and the power of the
chief executive most needed, Lundberg described FDR as "a burned-out
matchstick" barely able to function. It showed in some of his irrational
decisions at the end. Yet, he was still in charge as commander-in-chief and the
most powerful leader on earth as the war in Europe and Asia still raged, and he
alone was calling the shots.
With future Presidents just as vulnerable to serious health problems,
Lundberg's view was as the presidency is now structured, "the American
people are sitting on a bomb....likely to explode (unexpectedly) at any
moment." The problem, he said, isn't just about an imperial presidency,
but an "anarchic," "wild-cat" or "Protean" one
under which "anything can happen." Drawing an analogy to a modern-day
corporation, he explained the obvious. No large publicly-owned corporation would ever operate
this way. It would never put its chips on a single person or "choose its
chief executive (as) nonchalantly as does the
Wilson and Roosevelt weren't the only Presidents who served in office while
experiencing serious illness. Eisenhower suffered two heart attacks along with other health problems,
and Kennedy "was a walking bundle of ailments" with much of it
concealed. Lyndon
Johnson, as well, was in trouble from the start, suffered a massive heart
attack before winning national office, and (unknown to the public) was never
judged physically or mentally sound while President.
His actions proved it and give pause to what may be afflicting George Bush,
kept secret from the public. A disastrous six and a half year record
conclusively shows this man is unfit to serve in the nation's highest office or
in any responsible capacity. Because he's there taking full advantage, all
humanity is held hostage to what's coming next at the hands of a venal,
incompetent and possibly mentally unbalanced or deranged US chief executive.
For all the above-stated reasons along with the examples just cited, Finer
believed the office of the President was ill-structured and should be
drastically changed for the betterment of the country (and all humanity). As
far as achieving any of what he proposed or any other type broad brush makeover
of the system, Lundberg believed it's near-impossible. Doing it would involve
amending the Constitution and in a wholesale way. With certain opposition in
enough states, there's almost no chance these type changes can happen.
How did this happen, and were the framers at fault, Lundberg asks? To some degree, but not entirely. It's pure fantasy to
imagine any group of men, even if they'd been the most talented and
far-sighted, could have met in 1787 to produce a Constitution, elaborate,
detailed and ingenious enough to "anticipate and provide for every facet
and contingency of the nation" that would eventually encompass 50 states
and grow to a diverse population exceeding 300 million. It was impossible then
and now everywhere. Furthermore, they made the amending process extremely hard
to do even though it was subsequently accomplished 17 times after the Bill of
Rights was added to get the Constitution ratified in the first place.
At a much simpler time, the framers didn't understand that governments fundamentally act in their own
self-interest whatever the law says. The Constitution complicates it for
them by consisting of a "set of incomplete prescriptions, ostensibly
frozen in time except as subject to an almost impossible amending
process." So to get around the problem or ignore it, governments function
ad libitum with one man at the top calling the shots
even though this isn't what the framers had in mind.
So all the "patriotic praise....heaped upon the Constitution in
schoolbooks....is simple nonsense, pap." How well the country is served at
any time depends on the pure luck of the draw to get a really first-rate
capable leader as President. It rarely happens, and Lundberg cites only the three example
of Washington, Lincoln and Roosevelt. None of the others matched them,
and far too many were abysmal failures or worse with one candidate just cited
standing out prominently as the overwhelming choice for the worst and most
dangerous ever.
On top of all the other
flaws and faults, "the people" were deliberately and willfully left
out of the process proving "democracy is not recognized in the
Constitution," shocking as that notion is to most people reading
these words. Lundberg had hopes, however, that a
future time would come that would embrace constitutional improvement on a
significant scale. As he put it, this document, "as it stands, is by no
means the system the
A Renewed Call for a Second Convention
With the need so much greater now than 30 years ago, in the age of George Bush,
it's time we went about the process Lundberg advocated in the title of this
section. Doing it, however, is infinitely harder than achieving relatively
simpler amendment tinkering here and there, even though Article V allows for
such a procedure. With everything in mind from what's covered above, it's easy
to believe, whatever the Constitution allows, convening a convention for
constitutional change is near-impossible given the way the country is now run,
by whom and most importantly for whom - the immensely powerful monied interests sitting in corporate boardrooms running
the country, the world and our lives.
They've got everything arranged their way, it's taken decades to get it, they
engineer elections to get the best "democracy" they can buy, and it
always turns out that way, more or less. The bankers and Wall Street even own
the Federal Reserve giving them the most powerful instrument of government -
the right to print and control the nation's money supply and charge interest on
it. By so doing, the government (and the public) must pay interest on its own
money that wouldn't happen if it printed its own as Article I, Section 8 of the
Constitution says only the government can do.
It relinquished that power when Woodrow Wilson betrayed the public by signing
the most disastrous piece of legislation in the nation's history willfully
after Congress passed the Federal Reserve Act in the dead of night December 23,
1913 with many of its members away for the holiday and most others unaware of
what, in fact, they were signing.
Today, with a virtual stranglehold on state power, in league with Democrat and
Republican governments in their pockets, why would corporate giants ever give
up what took so long for them to get. They never will, Lundberg knew it, too,
and said the chance for
real change from a second convention "is almost nil....if (these pages)
have shown anything, (it's clear as day) the government (backed by the power of
money) controls the Constitution," not the other way around or "the
people" either, left out completely from the start.
Lundberg didn't say it but surely believed achieving the kinds of democratic
changes he wanted would have to come from the bottom up. Only an aroused
public, en masse and undeterred, fed up with the state of things and committed
can make it happen. Impossible as it seems, history at times surprises, and if
it does this time, it will be the greatest one ever....and not a moment too
soon.
Stephen Lendman lives in
at lendmanstephen@sbcglobal.net.
Also visit his blog site at sjlendman.blogspot.com
and listen Saturdays to the Steve Lendman News and Information
Hour on TheMicroEffect.com at