A Closer Look at Citizens United (558 U.S. 08-205 (2010), 558 U.S. ––––, 130 S.Ct. 876)

A lot has happened since 1787. The un-propertied, poor, non-white (in 1964), and non-male (in 1920) have gained the vote. Senators are now elected by popular vote (in 1913). And, who knows, perhaps by the mid-21st century, we may elect Presidents that way too.

Yet, perhaps the biggest game-changer, the premise implicit in the 1787 US Constitution, is the way that money over the past two centuries has replaced republican institutions and democratic process. Read the US Constitution, the original 1787 Constitution, sans its many amendments, and you will be pressed not to conclude that it is, in the main, an economic, not a political document.

Forget the Bill of Rights for a moment. It was tacked on to satisfy the anti-Federalists, without whose assent the Constitution would not have been ratified. (And, yes, these are the same folks who today continue to rail against the Fed, the Department of Education, the Department of Environmental Protection, the Post Office, etc.)

The issue before the Constitutional Convention in Philadelphia was principally economic. Here is how William Randolph put it when he introduced the Virginia Plan:

In speaking of the defects of the Confederation, he [Randolph] professed a high respect for its [the Articles of Confederation] authors, and considered them as having done all that patriots could do in the then infancy of the science of constitutions and of confederacies; when the inefficiency requisitions was unknown—no commercial discord had arisen among any states—no rebellion had appeared, as in Massachusetts [Shays’ Rebellion]—foreign debts had not become urgent—the havoc of paper money had not been foreseen—treaties had not been violated and perhaps nothing better could be obtained, from the jealousy of the states with regard to their sovereignty.

What issued from this universal complaint—universal because no anti-Federalists were invited and none gained admission to the Convention—was the interstate commerce clause, federal preemption, sole federal authority to mint money, the authority to tax the states, sole authority to negotiate treaties, and an electoral system that locked five out of every six adults out of the federal franchise.

We may be inclined to credit this original rule by the few (oligopoly) to greed. And, no doubt, there is more than a shred of truth to this interpretation. Note should be taken, for instance, that nearly all of the anti-federalists were property-less, poor, underemployed European American males. Their leaders were by and large tradesmen.

And, yet, if we listen to their arguments during the convention, their real interests were far from being so cut and dried. The real problem with the landless and penniless, or so they claimed, was not their lack of title, deed, or wealth, but the fear that they would use their vote and—God forbid—their office, not for the public good, but to promote their private self-interest. The landed and wealthy, by contrast, had no interest in using their office to acquire what they already had. Thus, it was argued, the landed and wealthy would instead use their vote to promote res publica, the common or shared wealth—i.e., the Commonwealth.

To this, however, we need to add that the framers of the Constitution were deeply suspicious not only of the general, uneducated rabble, “the many” (or hoi polloi), but of the elites who, like Pericles of old, would use the ignorance of “the many” to promote their own self-interest. Better that “the few”—equally well-educated, equally wealthy, equally landed—be compelled to face one another fairly than that some rogue demagogue yield to the temptation presented by Gorgias’ “fine art,” e.g., political speech-making.

(As a simple matter of historical record, each expansion of the franchise, rather than diminishing the role that money plays in politics, has instead expanded this role, forcing candidates to deploy ever larger sums of private capital to placate, buy off, or rhetorically dazzle ever broader and more volatile constituencies.)

In 1787, these two strands of the republican tradition in America—the oligopoly of money and the political oligopoly, the economic elite and the political elite—were joined in the de facto framers of the Constitution. Yet, as the franchise was expanded, non-elite voters posed an ever greater threat to both elites, posing an ever more present danger to the very foundations of the US Constitution and principally to those of its elements (vide William Randolph’s Virginia Plan) surrounding the stability of economic markets. For remember, it was concerns over economic stability that brought the conventioneers to abandon the Articles of Confederation and set out to “form a more perfect Union.”

Viewed from this angle, Citizens United could be seen as an attempt by the Supreme Court to set the US electoral system back upon a more stable and sound path, to restore power to the elites, and to place the electoral system back under the power of the original oligopoly.

So, why did their attempt backfire? It backfired because the justices mistook the contemporary economic elites for the heirs to the original elites. The original elites, it must be recalled, established a narrow franchise at least in part because they believed that res publica or shared wealth would be threatened by the private self-interests of “the many.” For, however deluded they may have been, these original elites, all classically trained, still believed that without rigorous education and economic independence, it would be impossible for a people to govern themselves responsibly. By “economic independence,” however, the framers did not understand some metaphysically obscure belief in freedom of choice. Rather, did they understand real, tangible assets, sufficient means to give a person the education and leisure they would need in order to govern themselves responsibly. And “governing responsibly” meant one thing and one thing alone: in the interests of the shared or common wealth: the res publica.

However, by ruling on behalf of the appellant, the Supreme Court justices displayed not only their complete and total ignorance over the legal reasoning of the original framers—the notorious question of “original intent”—but their complete and utter misreading of the motives driving present-day economic elites.

For present-day economic elites, res publica is the very last thing on their minds. Moreover, today’s economic elites are not the classically-trained, republican-minded heirs to the founders. They are, rather, very nearly the opposite. Nor have they sought to conceal their self-interest. To the contrary, they wear these self-interests as a badge of honor.

To be sure, even if the Justices had been familiar with, much less interested in, the legal reasoning of the framers, this would in all likelihood have made no difference in their decision, which was based, n.b., on the First Amendment granting—money—free speech.

And viewed from this angle, Citizens United would appear to have achieved precisely what it set out to achieve. It completely removed the wall separating the political from the economic, making transparent the interests on behalf of which we make and enforce laws.

And the fact that these interests are not republican only illuminates a tension already implicit in the original document, the original Constitution. Citizens United could therefore serve to draw our attention not only to the undeniable influence money exercises over politics in the US. (That, after all, was the original intent of the Constitution.) It might also serve to draw our attention to the poor companions wealth and politics make in the absence of universal rigorous education, universal social security, and sufficient free time for all citizens to govern themselves responsibly.