In 1807, GWF Hegel published his forbiddingly dense Phenomenologie des Geistes. In it we will find the preliminary ruling in McCutcheon v. Federal Election Commission, No. 12-536, the latest Supreme Court ruling to give money a seat in the United States legislature. McCutcheon overturns significant elements of Federal Election Campaign Act of 1971 (FECA), the Bipartisan Campaign Reform Act of 2002 (BCRA), as well as Buckley v. Valeo, 424 U. S. 1 (1976), which held that campaign contributions could be limited where not doing so led to “corruption” of the electoral process. But the Court focused in particular on limitations to the First Amendment right to free speech. And here is where GWF Hegel comes into play.
Readers of this blog may be surprised to learn that I agree with the Court’s overturning of Buckley, not because unlimited campaign contributions do not corrupt the process — they do — but because the remedy does not touch upon the cause for this corruption. In Buckley, at least in 1976, the Court clearly held excessive campaign donations in and of themselves corrupting. This was because one individual who possessed unlimited resources could speak louder than an individual with limited or no resources. This in turn violated the principle of one-person-one-vote. The Roberts Court by contrast rightly asks whether the Government has an interest in silencing loud mouths or providing megaphones to the meek. Can the Government limit how loudly an individual talks?
And this brings us to the threshold of the instant question surrounding money and the abridgment of the First Amendment’s guarantee of free speech. In 1787, when delegates to the Constitutional Convention were debating this very same question, it was Rufus King (MA) and Gouverneur Morris (PE) who framed the question most clearly. The point of debate was the publication of a Report commissioned by the delegates on the question of taxation and representation.
Mr. King: wished to know what influence the vote just passed was meant have on the succeeding part of the Report, concerning the admission of slaves into the rule of Representation. He could not reconcile his mind to the article if it was to prevent objections to the latter part. The admission of slaves was a most grating circumstance to his mind, & he believed would be so to a great part of the people of America. He had not made a strenuous opposition to it heretofore because he had hoped that this concession would have produced a readiness which had not been manifested, to strengthen the Genl. Govt. and to mark a full confidence in it. The Report under consideration had by the tenor of it, put an end to all those hopes. In two great points the hands of the Legislature were absolutely tied. The importation of slaves could not be prohibited-exports could not be taxed. Is this reasonable? What are the great objects of the Genl. System? 1. defence agst. foreign invasion. 2. agst. internal sedition. Shall all the States then be bound to defend each; & shall each be at liberty to introduce a weakness which will render defence more difficult? Shall one part of the U. S. be bound to defend another part, and that other part be at liberty not only to increase its own danger, but to withhold the compensation for the burden? If slaves are to be imported shall not the exports produced by their labor, supply a revenue the better to enable the Genl. Govt. to defend their masters? -There was so much inequality & unreasonableness in all this, that the people of the Northern States could never be reconciled to it. No candid man could undertake to justify it to them. He had hoped that some accomodation wd. have taken place on this subject; that at least a time wd. have been limited for the importation of slaves. He never could agree to let them be imported without limitation & then be represented in the Natl. Legislature. Indeed he could so little persuade himself of the rectitude of such a practice, that he was not sure he could assent to it under any circumstances. At all events, either slaves should not be represented, or exports should be taxable.
Before considering Gouverneur Morris’ objections, let us first be clear about the precise nature of Mr. King’s objections. These objections focus on securing and defending a federal government, which King here calls the “General System” (Genl. System) or “General Government” (Genl. Government). This General System, Mr. King accurately observes, was made necessary not simply out of fears that southern states with their own resources might not be able to successfully suppress a slave revolt, but also out of fears that northern states might not with their own resources be able to suppress a tax-payers revolt such as the rebellion let by Captain Daniel Shays in 1786 and 1787. Shays’ rebellion was the event the provoked the new Constitutional Convention to convene in 1787. The Report under consideration has seemingly ignored in its entirety the very reason for the Convention, recommending (1) that the labour market in slaves cannot be limited; and (2) that this market cannot be taxed. In other words, the Report allows the importation of a commodity — the labour of slaves — that endangers the safety of the republic, but does not provide for the resources — the taxes — the federal government would need to pay federal troops to restore public safety.
While related, Gouverneur Morris’ objections to the report lie elsewhere. He is concerned with representation without taxation:
Mr. Govr. MORRIS moved to insert “free” before the word inhabitants. Much he said would depend on this point. He never would concur in upholding domestic slavery. It was a nefarious institution. It was the curse of heaven on the States where it prevailed. Compare the free regions of the Middle States, where a rich & noble cultivation marks the prosperity & happiness of the people, with the misery & poverty which overspread the barren wastes of Va. Maryd. & the other States having slaves. Travel thro’ ye. whole Continent & you behold the prospect continually varying with the appearance & disappearance of slavery. The moment you leave ye. E. Sts. & enter N. York, the effects of the institution become visible, passing thro’ the Jerseys & entering Pa. every criterion of superior improvement witnesses the change. Proceed south wdly & every step you take thro’ ye. great region of slaves presents a desert increasing, with ye. increasing proportion of these wretched beings. Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them Citizens and let them vote. Are they property? Why then is no other property included? The Houses in this city [Philada.] are worth more than all the wretched slaves which cover the rice swamps of South Carolina. The admission of slaves into the Representation when fairly explained comes to this: that the inhabitant of Georgia and S. C. who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondages, shall have more votes in a Govt. instituted for protection of the rights of mankind, than the Citizen of Pa. or N. Jersey who views with a laudable horror, so nefarious a practice. He would add that Domestic slavery is the most prominent feature in the aristocratic countenance of the proposed Constitution. The vassalage of the poor has ever been the favorite offspring of Aristocracy. And What is the proposed compensation to the Northern States for a sacrifice of every principle of right, of every impulse of humanity. They are to bind themselves to march their militia for the defence of the S. States; for their defence agst. those very slaves of whom they complain. They must supply vessels & seamen in case of foreign Attack. The Legislature will have indefinite power to tax them by excises, and duties on imports: both of which will fall heavier on them than on the Southern inhabitants; for the bohea tea used by a Northern freeman, will pay more tax than the whole consumption of the miserable slave, which consists of nothing more than his physical subsistence and the rag that covers his nakedness. On the other side the Southern States are not to be restrained from importing fresh supplies of wretched Africans, at once to increase the danger of attack, and the difficulty of defence; nay they are to be encouraged to it by an assurance of having their votes in the Natl. Govt. increased in proportion, and are at the same time to have their exports & their slaves exempt from all contributions for the public service. Let it not be said that direct taxation is to be proportioned to representation. It is idle to suppose that the Genl. Govt. can stretch its hand directly into the pockets of the people scattered over so vast a Country. They can only do it through the medium of exports imports & excises. For what then are all these sacrifices to be made? He would sooner submit himself to a tax for paying for all the negroes in the U. States, than saddle posterity with such a Constitution.
Like Mr. King, Mr. Morris too is keen that his fellow delegates bear in mind the public danger entailed in maintaining a market for slave labour. But to it he adds a second consideration. The market in slave labour, he notes, threatens the integrity of republican institutions as such. This threat consists not in the risks slave rebellions or tax-payer revolts pose to the republic, but in making despotism an integral element within the federal system. For clearly his objections cover much more than slaves and tax-payers, encompassing “the vassalage of the poor” as a general category. At issue for Mr. Morris, in other words, is preserving the very essence of republicanism, the “common wealth” or “res publica” on behalf of which the delegates were meeting and proposing a new constitution. When Mr. Morris therefore faults the Report for introducing an “aristocratic countenance” into the proposed Constitution, he is accusing its authors of promoting privilege (private law) over public law, oikonomia, the laws of the private household economy over politeia, the laws governing public life. Private property is taxed. Citizens are represented. To tax citizens and represent property is to turn the republican principle on its head; or, rather, to turn it inside out. “Are [slave labourers] men? Then make them Citizens and let them vote. Are they property? Why then is no other property included?”
The relevance of this debate to McCutcheon could not be clearer. Were he alive today, Mr. Morris would no doubt want Mr. Roberts to explain to him the principle under which property has earned the right to free speech while citizens have been silenced. And Mr. King would no doubt want Mr. Roberts to explain the principle under which plutocrats can introduce a factor into the republic — the vassalage of the poor — that endangers all citizens, without the slightest obligation to mitigate the risks this factor poses to all.
To which, were he honest — which, of course, he is not — Mr. Roberts would no doubt reply, “And do you recall how the Convention resolved this debate?” End of discussion.
The Convention resolved this debate, of course, by granting property a seat in Congress in exchange for the right to tax said property. However, in this the Convention was highly selective. Only one commodity, slave labour, and even then only three fifths of its full value, would be granted a seat in Congress. No other commodity would earn such a right. And, in return, the owners of this commodity agreed to allow the federal government to overrule local and state courts, to tax states, to regulate interstate commerce, to enforce full faith and credit, to enforce contracts, and a host of other federal regulations and laws that restricted and bound the states to their federal government. This was the quid pro quo, the private property for citizens concession, lodged at the center of the US Constitution.
The Convention, of course, limited this representation of commodities to one commodity alone: to slave labour. And, yet, there was a general principle in this exception. For while non-slave males everywhere counted as full persons where representation in the House was at stake, in 1787 fully nine tenths of all voting age adults still enjoyed no right to vote for their own representatives, either because they were slaves, because they were women, because they were poor, or because they lacked property. Only gradually, state by state, did non-slave males gain the right to vote; voting rights for African Americans was spotty even after 1865 all the way up to (and beyond) 1965 and passage of the Voting Rights Act.
Thus, in reply to Mr. Morris or Mr. King, Mr. Roberts would no doubt reply: the United States has a long history of silencing those who for whatever reason — race, gender, class, poverty — have not earned their right to be represented; and the United States has also long acknowledged the rights certain commodities enjoy, beginning with slave labour, to a place in Congress. Free speech has been and can still be limited by and pegged to the universal commodity, to money. So don’t lecture me about the rule of law. As I recall, Mr. Morris and Mr. King, both of you signed your names at the bottom of the original Constitution. Both of you agreed to grant commodity slave labour three-fifths a seat in the House per head. So what part of the Rule of Law do you not understand?
Which brings me back to GWF Hegel and to his Self-Moving Substance that is Subject. Already in 1787, it was this Subject, Capital, that was spreading its wings over the United States, guaranteeing itself a seat, and then several seats, and now all seats, in Congress. Already in 1787, this Substance, this Commodity Form, was brooding over the nation and the people it had created. So when Mr. Roberts validates this fact, he is doing no more and no less than endorsing this original act of Congress. At the same time, it might be well for us to remember that at least in 1787 this was far from a done deal, that the framers of the US Constitution knew full well what was at stake and that some of them felt terribly uneasy by the deal they were making with the devil. Mr. Roberts and his Court by contrast, who are spawn of the Devil if there ever was one, display no such disease or discomfort. They are perfectly happy, even gleeful, to deprive citizens their free speech and grant capital full representation in accordance with the law.