The Constitution’s Cultural Costs

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Aziz Rana           

In recent years, the anti-democratic flaws of the U.S. Constitution have become increasingly apparent. Commentators now routinely worry over the system’s exaggerated checks on popular authority—from the blockages of the Senate to gerrymandering in the House of Representatives, from an impassable constitutional amendment route to widespread practices of voter disenfranchisement, and of course the high stakes judicial appointments process and the dramatic power exercised by a tiny group of lifetime federal judges over legal-political life.

            This growing attention to the Constitution’s procedural weaknesses is a very welcome development. Yet, the problems with the document extend beyond anti-democratic institutional damage alone. Over the course of the twentieth century the text became wrapped up with a narrative about national purpose that has made it increasingly difficult to address these procedural limitations along with the country’s larger social crises. Reforming the constitutional system will require both remedying institutional mechanisms and reshaping American constitutional culture itself.

The American Constitutional Narrative

By the mid-twentieth century, the U.S. Constitution became deeply joined to what Swedish sociologist Gunnar Myrdal famously labeled the “American creed”—a vision of the U.S. as standing for the promise of equal liberty for all. Indeed, during this period, a nationalist faith crystallized around a series of essential commitments: to market capitalism, to representative democracy, to racial equality, to the protection of individual liberties, and to the belief that these principles grounded the U.S.’s global power. On the face of it, these were disparate ends, which need not go together and might well be in profound tension. But the narrative that American politicians and commentators developed around the Federal Constitution served a critical role in cohering these ends into a single American ideology. 

By the beginning of the twenty-first century, this consensus linked the center-left to the center-right in what amounted to a romance about the national project. The eighteenth-century document had evolved beyond merely a set of rules for legal and political decision-making, which could be judged based on its comparative effectiveness and fundamentally changed if found wanting. Instead, for policymakers and academics alike, belief in the Constitution became wrapped up with an alluring set of propositions about the country’s unique status: from the genius of its governing institutions to the inherently progressive direction of its unfolding history to the indispensability of its international role.

One great strength of this constitutional narrative was its political fluidity, which had important consequences for reform and social cohesion. Activists on opposing political sides could both assert that they were speaking in the true language of the Constitution. But to the extent that governing elites justified their own authority in creedal terms, more marginal voices could productively re-appropriate the dominant framing to push for social change. Thus, during decisive periods of struggle, such as with 1950s and 1960s civil rights protests, many Black American activists—routinely treated as dissidents by state authorities—still claimed the mantle of both the creed and the Constitution. Such movement actors articulated extensive critiques of existing conditions, but they often did so from within the shared national narrative, accentuating particular elements and deemphasizing others. They thus deployed the document as a powerful discursive tool for reform.

This very flexibility proved a clear strength in consolidating mid- to late twentieth century Cold War politics behind a particular version of American liberal nationalism. As a shared set of claims and arguments, the constitutional narrative provided a discourse that could incorporate communities long marginalized in American history. It allowed members of many of those communities to see themselves as valued and respected within the dominant, often white, society. Moreover, American constitutionalism offered a framework for positing and internalizing the “un-Americanness” of explicit white supremacy, including for white national officials and political elites who built their own political self-conceptions in part around the principle of inclusion. 

The Divided Liberal Mind

This American ideology, and the social cohesion and reform possibility it offers, has granted the Constitution significant immunity from challenge. As a symbolic and institutional center of twentieth century American nationalist faith, generations of political leaders came to identify deeply and personally with the constitutional story. In a sense, they had worked and suffered for it, and it gave their lives a larger meaning. Any serious effort to fundamentally transform the constitutional system would raise profound issues about what it means to be American in the first place.

In fact, we can see this in today’s very divided liberal mind on the document. On the one hand, liberal commentators and politicians increasingly decry the anti-democratic features of the Constitution. But many also profess an abiding faith that the very same text and institutions will somehow save Americans from authoritarian entrenchment. After Trump’s 2016 election, for example, this tendency emerged in everything from the reverential invocations of the Constitution when contesting the Muslim Ban to hopes that the Russia investigation and impeachment would provide an off-ramp from the conditions that produced Trump’s rise in the first place. 

Most recently, it was present in how the Biden Administration and various commentators condemned Trump’s call to “terminate” the Constitution’s electoral rules.  In condemning Trump’s authoritarian attack on free elections, they essentially fell back on a broad embrace of Constitution worship—regardless of that overall system’s massive flaws from a ‘one person one vote’ perspective.  Take Andrew Bates, White House spokesperson, who declared to the press that the text, as such, was a “sacrosanct document” and “the soul of our nation.” 

Cultural Constraints on Procedural Reform

This retreat back into Constitution worship carries with it profound limitations. It ignores how today’s pathologies are not simply unintended and contingent consequences. Instead, these effects can be seen, at least in part, as a product of the framers’ own hostility toward real democracy. James Madison, Alexander Hamilton, and others riddled the constitutional order with veto points precisely to contain the central political tool that poorer citizens had to pursue their needs: the power of the vote. And, of course, these constitutive and undemocratic features also fit hand in glove with the long history of racial subordination: Racial elites have benefited greatly from both state-based representation and the various checks embedded throughout the constitutional system, which create partisan incentives at the national level to avoid meaningful reform. The framers placed this constitutional system largely beyond popular revision through its incredibly elaborate amendment process. The result is a framework that systematically disadvantages those with the fewest resources, while allowing those with power to use a fragmented political system to quietly preserve their interests.

Thus, the call to remain true to the Constitution amounts to an invitation to hold firm to the very arrangements that have facilitated, both today and in the past, the authoritarian brand of politics that Biden officials attack as un-American. And it has the added effect of draining the reform energy that might exist—even around the more specific technical fixes. If the constitutional system protects us from danger, why should politicians and publics engage in serious political struggle to push for revisions? 

Ethno-Nationalism and The Problem of Colonial Erasure

More broadly, the country’s overall constitutional culture has had significant political-cultural costs that extend beyond debates over the Electoral College or the Senate. For instance, the creedal narrative, in perhaps unexpected ways, renders largely invisible the country’s own colonial infrastructure and even provides ideological space for ethno-nationalist politics. In addition, it has bolstered elitist suspicions of mass democracy and, paradoxically, justified security excess through the language of constitutionalism itself.

It is again no doubt the case that many American reformers and activists have productively used the dominant constitutional story to press for significant change.  But the political culture promoted by that story entails real consequences for national memory. In particular, it has largely erased mainstream consciousness of the country’s foundations as a settler society, in which the freedom, equality, and access to land of in-group members—largely, Anglo-European men of a certain background—depended on the exclusion and subjugation of Black Americans, Indigenous peoples, and women, among others.

For all the positives associated with the white national embrace of a vision of the country as free and equal from the founding, a clear problem thus remained: Although oppressed groups eventually accessed greater legal protections, these changes ultimately occurred on ideological terms shaped principally by a white majority. Unlike colonized peoples abroad, Black people and Native Americans, among others, were never able to insist on a conscious moment of colonial accounting or, with it, a sustained national engagement with the persistent structural hierarchies bound to the country’s settler roots.  In many ways, the last decade’s racial justice movements—in the context of mass incarceration and economic crisis—are a response to the historic failure of American institutions to uproot these ongoing legacies and practices.

This failure to confront such settler foundations has meant that, perhaps counterintuitively, mainstream constitutional discourse itself can provide cultural space for the development of a modern American ethno-nationalist politics. As the twentieth century progressed, part of the appeal of the ideologically flexible creedal discourse, for some, lay in its openness to racially exclusionary commitments. Critics of a multiracial political identity began to locate the founding’s liberal essence and exceptionalism in the distinctive cultural attributes of a Euro-American experience. Figures from Woodrow Wilson in the early twentieth century to more recent backers of Donald Trump have argued that the creed emerged from that special cultural history and that, therefore, unless other communities assimilated into an essentially Euro-American identity, the country’s founding ideals would be abandoned.

In this way, mainstream politics around creed and Constitution often promoted a narrative of national innocence.  And this embedded vision of the country’s innocence allowed ethno-nationalist assertions about Euro-American exceptionalism to persist well after explicit defenses of white supremacy became politically unpalatable. 

The Dangers of Supreme Court Genuflection and Constitutional ‘Illiberalism’

            Furthermore, this overall constitutional culture tended to promote an elitist genuflection before the Supreme Court in ways that evinced real hostility to mass democracy. For decades, political and legal speeches and commentary presented the judiciary as an educational seminar for the public, whatever the record of past court complicity in everything from slavery and segregation to Indigenous expropriation, the violent repression of labor, and the subjugation of women. Those with overweening economic and political power, oftentimes including the individuals sitting on the federal bench, frequently undermined essential rights and democratic values—legitimating exercises of national security and police violence, not to mention voter disenfranchisement and crackdowns on workers. But, under the common narrative, threats to basic liberties almost always came from below; thus, unruly elements had to be contained by a wiser and more mature set of economic, political, and legal elites.

The result was a prevailing tendency to interpret almost any radical political intervention that sought to fundamentally revise the legal-political order, along with the basic terms of the state and the economy, as a danger not just to the existing Constitution but to constitutionalism as such. This sensibility not only embodied suspicion of the capacity of ordinary Americans to shape collective life. It also operated in practice to transform the dominant constitutional framework into the only possible way Americans could exercise their constitutional imagination and engage in constitutional politics.  

            Equally concerning, this elevation of the judiciary and other counter-majoritarian spaces obscured the historical conditions under which these institutional actors gained such exalted status. Past publics did not simply accede to the dramatic narrowing of the boundaries of constitutional politics or to the elevation of federal courts as central articulators of constitutional meaning. The first half of the twentieth century involved intense movement opposition both to a mythologizing of the judiciary and to virtually all the foundational elements of American ideology and statecraft—from the basic legitimacy of the Senate to the U.S. assertion of an expansive and capitalist global authority.

Thus, although late twentieth century commentators routinely waxed poetic about the country’s liberal self-reflectiveness, such praise systematically ignored the extent to which this self-reflection operated in a dramatically narrowed context—only after foundational questions about social ordering and design were largely removed from the table. And, moreover, the pervasive and legal discourse-driven conversation around the Constitution effectively sustained that removal, since in practice it offered very little space for broader institutional assessments or competing argumentative languages and tools. All of this underscores how the deliberative practices of the overarching constitutional paradigm significantly circumscribed truly critical self-reflection—whatever the conventional wisdom.

In addition, encomiums to the liberalizing power of the American brand of constitutionalism ignored the extent to which these practices remained bound up with actual and persistent state violence against opponents. They failed to contend with the legitimating role that the overall constitutional paradigm played in acts of profound discretionary violence across the globe. Indeed, American governing elites cemented the twentieth century ties between market capitalism, global primacy, and constitutionalism in ways that often entailed real repression both at home and overseas.

Despite being framed in a constitutional register, then, the American version of liberal nationalism that solidified in the twentieth century shared many commonalities with other more explicitly aggressive and belligerent nationalist projects—projects that U.S. officials were often at pains to distinguish as ‘un-American.’ The consequence has been an unavoidably tangled relationship in collective life between the liberal and the ‘illiberal’ dimensions of the governing constitutional story. 

Standing now on the other end of the politics established in the mid-twentieth century, we can wonder whether the particular compact around creed and Constitution too hastily papered over real deficits in the governing order. In recent decades, not only has American political dysfunction become especially apparent. So too have the ways in which national mythologies—including those related to the Constitution—shielded ideological flaws from critical analysis and marginalized political alternatives. Americans face not only an issue of identifying institutional problems and proposing appropriate technical solutions—though that analysis and activism are essential. The myths surrounding the Constitution constitute a block to significant reform, and also underpin an American political culture with consequences well beyond constitutional design. Ultimately, any genuinely transformative project for the United States will have to come to terms with both the system’s anti-democratic procedural limitations and its cultural effects. 

Aziz Rana is the Richard and Lois Cole Professor of Law at Cornell Law School.  He can be reached by email at ar643@cornell.edu.