From Trump to Project 2025 to the speeches of multiple Republican senators and members of Congress, you’ll frequently hear the phrase “post-constitutional” applied. They refer to a “post-constitutional moment” and a Republican “post-constitutional presidency.” But what do they mean by this?
In the five decades after the Republican Great Depression, Franklin D. Roosevelt, Harry Truman, Dwight Eisenhower, Jack Kennedy, Lyndon Johnson, Richard Nixon, Gerald Ford, and Jimmy Carter taught America and the world a great truth: a middle class is not a normal thing, and if a country wants one it must be created by direct government intervention in the marketplace.
Prior to FDR’s New Deal, America had never had a broad middle class that encompassed more than half of us. What we today call the middle class — the ability to raise a family, buy a house and car, take a vacation, save for old age — was, until the 1940s, typically very small in the United States, as it was in much of the rest of the developed world.
As recently as 1900, for example, women couldn’t vote, senators were appointed by the wealthiest power brokers in the states, and poverty stalked America. There was no minimum wage; when workers tried to organize unions, police would help employers beat or even murder their ringleaders; and social safety net programs like unemployment insurance, Social Security, Medicare, food and housing supports, and Medicaid didn’t exist.
There was no income tax to pay for such programs, and federal receipts were a mere 3 percent of GDP (today its around 20 percent). As the President’s Council of Economic Advisors noted in their 2000 Annual Report:
“To appreciate how far we have come, it is instructive to look back on what American life was like in 1900. At the turn of the century, fewer than 10 percent of homes had electricity, and fewer than 2 percent of people had telephones. An automobile was a luxury that only the very wealthy could afford.
“Many women still sewed their own clothes and gave birth at home. Because chlorination had not yet been introduced and water filtration was rare, typhoid fever, spread by contaminated water, was a common affliction. One in 10 children died in infancy. Average life expectancy was a mere 47 years.
“Fewer than 14 percent of Americans graduated from high school. … Widowhood was far more common than divorce [because of the dire economic consequences to women of divorce]. The average household had close to five members, and a fifth of all households had seven or more. …
“Average income per capita, in 1999 dollars, was about $4,200. … The typical workweek in manufacturing was about 50 hours, 20 percent longer than the average today.”
This is the America Republicans want to return us to today. This is how, they assert, the Constitution wants us to live. The way things used to be.
In the decades immediately following the Civil War, American government was fundamentally altered. The process was sped up with the 16th Amendment, authorizing the income tax, and the 19th Amendment that allowed women to vote. Along with the 13th, 14th, and 15th Amendments, these changes provided the basis for the US government to intervene in the “free market” and create America’s first broad middle class.
FDR imposed a top income tax rate of 90 percent on the morbidly rich, 50% on corporate profits, and passed legislation giving average people the right to unionize, balancing the power equation between management and labor.
The result was that by 1980 well over 60 percent of Americans were in the middle class, the majority with a single household income.
This is the series of events to which Republicans object when they say they want to either “return America to constitutional principles” or enter into a “post-constitutional” era, depending on who’s speaking.
Libertarian billionaires consider any interference in the “magical free market” to be a violation of some sort of natural law that creates Dickensonian societies with massive concentrations of wealth at the top, widespread poverty among the working class at the bottom, and a small middle class made up almost entirely of entrepreneurs and professional people like doctors and lawyers.
This is why Republican intellectuals like former OMB Director Russell Vought, a major advisor to Trump and Project 2025, are, as Heather Cox Richardson noted in her brilliant Substack newsletter:
“[C]alling for draconian cuts to government agencies, student loans, and housing, health care, and food assistance. [Vought] called for $2 trillion in cuts to Medicaid over ten years, more than $600 billion in cuts to the Affordable Care Act, more than $400 billion in cuts to food assistance, and so on.”
Its why Republicans are working so hard to disempower women in the workplace, starting with eliminating their control over their own reproductive capacity (which is what drove the women’s liberation movement of the 1970s post-Roe v Wade).
It’s also why they’re doing everything they can to shut down corporate Diversity, Equity, and Inclusion (DEI) programs nationwide; the majority of the hiring and increased pay benefits coming from corporate, government, and academic DEI programs go to women, a situation Republican men find intolerable.
Republicans want to either “return” to a pre-Civil War understanding of the Constitution (as advocated by Clarence Thomas and Sam Alito) or a “post-constitutional” order in which the last century’s “innovations” (including the income tax, women’s suffrage, “welfare” programs, entitlements, and even free public school and college) are ended.
We see this in the ways Republicans on the Supreme Court have gutted both the Civil Rights Act of 1964 and the Voting Rights Act of 1965, how they’ve stripped most of the teeth out of the 1935 National Labor Relations Act, and how they’re working to castrate most regulatory agencies including the EPA, FTC, and even the IRS.
Some of it is simple greed: as the middle class shrinks and poverty grows, the cash stash at the very top of the American economic pyramid grows exponentially. Other American oligarchs follow the teachings of Russell Kirk, William F. Buckley, and Ronald Reagan who all argued that a larger-than-50% middle class is a threat to the stability of the nation.
When the 1960s happened and workers, women, draft-age young men, Blacks, Hispanics, and gays were all simultaneously demanding equal rights and protection from exploitation, conservatives in the GOP believed they were seeing the actual, disastrous unraveling of America.
They argued that transferring even part of the wealth of rich people to help build a middle class is the first step in a socialist agenda that must ultimately end with torches, pitchforks, and rich people facing the guillotine in a full-blown communist takeover of America.
As Richardson notes:
“Vought argues that the United States is in a ‘post constitutional moment’ that ‘pays only lip service to the old Constitution.’ He attributes that crisis to ‘the Left,’ which he says ‘quietly adopted a strategy of institutional change,’ by which he appears to mean the growth of the federal government to protect individual Americans. He attributes that change to the presidency of President Woodrow Wilson beginning in 1913. Vought calls for what he calls ‘Radical Constitutionalism’ to destroy the power of the modern administrative state and instead elevate the president to supreme authority.”
These are the real stakes in this fall’s election:
— Democratic President Joe Biden believes that government intervening in the marketplace to build and sustain a broad and diverse middle class is good for all Americans. He holds up the success of the New Deal and the Great Society as exemplars, justification for programs holding corporate America to account and empowering women, minorities, and workers generally.
— Republican Donald Trump and his fellow billionaires in the GOP believe the middle class is still too large at today’s 49 percent and needs to be cut further down to size to take America back to the pre-1913 “constitutional” era when there was no income tax; women couldn’t vote, work, or have a checking account; there was no minimum wage or unemployment insurance; no Social Security, Medicare, or Medicaid; and police routinely collaborated with employers to murder union organizers.
Republicans are dead serious about this. Your vote, and those of your friends and acquaintances, will determine which of these two dueling narratives about the future of the American middle class will win.
Choose wisely.
