In 2011 - the same year that the Occupy protests occurred - political scientist Jeffrey A. Winters published a book entitled, Oligarchy Professor Winters explains that the common definition of oligarchy as "rule by the few" is incorrect. The defining feature of oligarchy is the power of wealth and specifically, fortunes so vast that they can be leveraged to corrupt an entire political process - elections, the media, lobbying of representatives, revolving-door corruption of administrative agencies, paid scientific experts, drafting of legislation and so on. Thus, oligarchs are not elites and are not the result of ordinary (even fairly marked) inequality. Oligarchy results from vast concentration of wealth; the type of wealth that can thoroughly corrupt an entire political system.
Winters explains that civil oligarchy - our form of oligarchy - is relatively new. In the past, oligarchs existed, but they were armed (meaning they themselves possessed police power). This traditional form of armed oligarchy is what was known to and considered by our Founding Fathers (and indeed, if oligarchs had police power, they would be subject to significant constitutional limitations; under current judicial interpretation, oligarchs have the rights of citizens). Winters explains that in post-Renaissance Italian city-states, oligarchs came to be disarmed. Though it caused them great worry at the time, it did not prove a problem as civil oligarchs have consistently been able to corrupt governments to an extent that they can use the police and military power of the state for their own purposes (and, even better, they can do so at taxpayer expense).
Interestingly, you are starting to hear claims of tyranny. However, those claims are coming from those concerned with war powers and/or the NSA. Unfortunately, what they are referring to are the symptoms of tyranny, not its cause. Tyranny results from inequality of power; it's symptoms are abandonment of rule of law and oppression. So, the inequality crowd as well as the those concerned with NSA abuse are really talking about the same thing: however, one side of the debate is concerned with the cause of the tyranny (vast wealth inequality, creating a civil oligarchy) and the other is concerned with the symptoms of tyranny (disregard of rule of law and oppressive tactics).
This actually makes sense. "We are the 99%" seems to be about more than just inequality; it's saying that our political economy is not benefiting the collective, but rather, a very few. That is the definition of a tyranny - a government that benefits the few rather than the collective. And the symptoms of a tyranny - disregard of rule of law and oppression - seem increasingly apparent.
This suggests something interesting. Namely, that our Constitution is broken. Constitutions are designed to prevent tyranny; that is their purpose. So, if you have a tyranny, you - by definition - have a constitutional problem. And honestly, it appears that we do. Our Constitution - drafted in the late 18th century - reads a bit like the bible to me: Just as the bible reads like a bronze-age document; our Constitution reads like a pre-industrial, late 18th century document. They're both really impressive, making real progress on some of the stickiest issues of justice, but they're obviously outdated.
Let me give you an example. With respect to war powers, our Constitution only considered two possible scenarios: civil war and attack by a state. And the rules for these two are different: You can suspend habeas corpus in the event of civil war. But what you can see looking at the two covered scenarios is that our Constitution's foreign policy is isolationism. As soon as we - as a country - rejected isolationism, the Constitution has no rules. It's supposed to cover foreign policy, but it didn't anticipate an interventionist foreign policy. Thus, we have no constitutional checks on pretty much all of our wars (and it shows). Like Vietnam being a police action and not a declared war? That looks like you have a hole in your Constitution. It looks like the war version of off-shore tax shelters. And we have lots of them: black-site torturing, getting corporations to do unconstitutional things, getting other nations to do unconstitutional things. As a lawyer, those look like legislative holes. They happen when situations change. It's hard to make a really tight law and no one has a crystal ball. Of course all of those holes could be closed. We could have rules for intervention; we could get rid of these end runs through corporations and other nations.
Given that our form of tyranny is oligarchy according to Professor Winters, it would seem clear that economic matters should be reviewed. Many were upset that the Court ruled that corporations are people in Citizens United. However, if you really look at the constitution, it's clear it intends to regulate the economy (The Commerce Clause, for example), but corporations and the global economy were not considered at all. Why would they have been considered in the late-18th century? So, one could see an intent to regulate the economy, but it's clearly ineffective under modern conditions.
This raises an obvious question: Could we modernize our constitution? It turns out that we can, by simple majority vote, in fact. But that fact is essentially unknown to the activist community. And that's a long story, but I'll make it short(ish).
Basically, when industrialization kicked into high gear and this oligarchy problem flared up, historians concluded that this must have been the intent all along: Of course, our Founding Fathers were wealthy; so, the entire document is geared to favor wealth. This wasn't based primarily on anything our Founding Father's had written, mind you: It was simply based on the fact that they were wealthy. But based on this, what they had written came to be disregarded. I mean if you're trying to restrain wealth, why consult that document? It was set up for the wealthy. So, they lost sight of what the Founding Father's said. This led a few generations of constitutional scholars to conclude that Article V of the Constitution was the only means for amendment - Article V is very burdensome and it is done by government officials, not the people.
However, when you look to what the Founding Father's said, it is clear that Article V applies only to amendment by the GOVERNMENT. Article V it in no way prohibits constitutional amendment by popular sovereignty. In fact, the very principle of popular sovereignty is that the people are the government and therefore, have the inalienable right to altar or abolish their government at any time, by simple majority vote.
That has quite radical implications, if one thinks about it. First, it could actually fix problems rather than getting small legislative gains that are quickly unwound. Second, it could fix a lot of problems: inequality, environmental concerns, internet communications, labor, war powers, the IMF/World Bank, and so on. What Professor Amar's analysis - set forth above - shows is that the people, as sovereigns, control the supreme law of the land and they can change it as they please by simple majority vote. You could constitutionally limit inequality instead of constantly fighting legislative battles. You could specify the rules for the internet. You could end privatization of public goods. You could specify rules for foreign intervention. Professor Amar's analysis shows that we could do whatever we like by simple majority vote. That is what popular sovereignty means: It means the people are the government and therefore, control the supreme law of the land.
Now if Professor Winter's oligarchy analysis is correct and we are a tyranny, it means that the democracy is broken - working through the democratic process will do little. You could get small gains here and there, but you could never really fix problems. The political economy is working for the benefit of the 1%; that's its design. Well, the fix for that structural problem must be constitutional.
So, it appears we have a mechanism of peaceful revolution at our disposal. Our Founding Fathers explicitly talked of constitutional amendment by popular sovereignty in these terms - as a mechanism for peaceful, legal revolution. They envisioned that if there was a structural problem (and tyranny IS a structural problem), that it would be fixed. And by now (in the 21st century), much needs to be fixed. It can be, but as far as I know, no one knows about it.
