Du Bois and the Project of Constitutional Transformation

Guest Blogger

This post was prepared for a roundtable on Constitutional Faith and Veneration, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Aziz Rana 

Sanford Levinson’s scholarship has long been a central influence on my own work. His critique of constitutional veneration and of the American “constitution of settlement” have driven my own interest in making sense of the history and politics of U.S. constitution worship. His call to expand the judicial canon has informed my efforts to incorporate the law of colonialism and empire more systematically into the study of American constitutionalism. With both of these Levinsonian ambitions in mind, for my reflection paper I aim to recover the arguments of a key voice of U.S. constitutional dissent: W.E.B. Du Bois.

Du Bois is rarely read by legal scholars as a constitutional thinker, but his arguments—especially in the 1930s and 1940s—offer among the most sustained accounts of the limitations of the American federal constitutional model. Indeed, for scholars today confronting the breakdown of our legal-democratic institutions, expanding the “canon” centrally concerns not only incorporating new cases, but also alternative foundational figures who rarely appear in conventional constitutional writing. These figures offer essential insight into basic struggles over the federal constitution’s legitimacy as well as the meaning of the text in contemporary cultural and political life.

W.E.B. Du Bois’s writing, against the backdrop of the Great Depression and the convulsive events of the early-to-mid twentieth century, is particularly noteworthy because he wrestled with the question of how to transcend a deeply undemocratic legal-political system under conditions in which holding another constitutional convention may be especially difficulty. He began from the perspective that the deep social unrest of the 1930s highlighted the need for a new transformative politics. This politics had to have an account of alternative governing institutions, and thus of the profound flaws within existing constitutional structure and organization. But it also had to appreciate the multiplicity of ways that Americans had long implemented revolutionary change, especially in the years during and after the Civil War—from improvising new textual interpretations, to formally amending the document, to extra-legal acts of mass rebellion.

This indicated that, in the present, it was essential to experiment broadly with a variety of revolutionary means, which together could chip away at the prevailing collective order. What would link all of these methods was a liberationist imagination, one that repudiated any politics of constitution worship and that embraced the need for real institutional rupture. His approach drew from strands of 1910s Socialist Party constitutional politics. Not unlike Eugene Debs or Crystal Eastman, the basis for assessing each reform approach was the degree to which it altered the basic distribution of power within the society and thus made it increasingly difficult for the established racial and economic hierarchy to persist.

By the 1930s, post-World War I racial violence, Jim Crow extremism, and the Depression all combined to radicalize Du Bois’s politics. This shift was powerfully expressed in his magisterial book, Black Reconstruction in America, 1860-1880 (1935). The book today is remembered as a landmark response to the dominant American historiography of Reconstruction, indebted as it then remained to William Dunning and others.[1] But it was also a sustained examination of the symbolic and structural role of the federal constitution in shaping the terms of economic life, race relations, and democratic possibility. In it, Du Bois argued that the end of slavery was not the product of white political largess but rather due to a massive “general strike” of Black enslaved workers, as hundreds of thousands of African Americans shut down the Southern economy, took up arms against their enslavers, and, through their own actions, fundamentally linked emancipation to the war effort.

Du Bois also systematically repudiated the pervasive and racist conventional wisdom that Reconstruction ended because of Black political limitations. Emphasizing a class-based structural analysis, Du Bois instead underscored how the ultimate détente between Northern industrialists and the Southern planter class led to the rise of the Jim Crow order, with Republican Party complicity. In the process, he challenged white assumptions that Black-run and inter-racial governments were corrupt and mismanaged, demonstrating in profound detail the remarkable achievements of the era—from extending the vote to poor whites and Black men formerly enslaved, to building new public school systems, to confronting questions of landlessness and material access.

At the same time, the book also implicitly and explicitly reflected on the problems of the 1930s and on the type of radical political thinking and energy that would be necessary for addressing them. Crucially, Du Bois rejected the belief that meaningful transformation could occur in the United States through a politics that presupposed constitutional fidelity rather than a far more instrumental relationship to the constitutional framework. According to him, the lesson of the Civil War and of Reconstruction was that actual change required revolutionary means that consciously broke from established processes and legal commitments, given the depth of white supremacy and the prevailing institutional order.

The Black “general strike” that led to emancipation, the military rule in the South that produced Black voting, and even the Reconstruction Amendments—based as they were on denying white Southerners their seats in Congress—were all properly understood as revolutionary acts that sought to democratize a fundamentally undemocratic constitutional system. In his view, they were not in the spirit of the document and they were pointedly unfaithful to the 1787 institutions. Instead, these changes were predicated on the belief that “[r]ule-following, legal precedence, and political consistency are not more important than right, justice and plain commonsense.” And, as a result, Du Bois contended that African Americans and Radical Republicans had, in truth, re-founded their country: “formed a new United States on a basis broader than the old Constitution and different from its original conception.”[2] In doing so, he paralleled earlier arguments by journalist and social critic E.L. Godkin, who during the 1887 constitutional centennial celebrations had declared that—since the end of the Civil War had profoundly transformed the polity—those like Charles Sumner, rather than Madison or Hamilton, were the current constitutional order’s real framers.

As for the 1930s present, the United States continued to be mired in a politics of white supremacy and minority rule, in which “fetich-worship [sic] of the Constitution”[3] operated in practice to sustain economic and political subordination. This meant that the institutions of government needed to be radically democratized just as they had been during Reconstruction. For Du Bois, as he would later discuss in Color and Democracy (1944), this transformation of the constitutional order had to focus on the central problem of federalism: how the states embedded at virtually every level of government a politics of minority rule that fractured and marginalized the effective power of Black and poor voters in particular. 

If earlier Progressives and Socialists highlighted the undemocratic nature of the state system for the amendment process and representation in the Senate, Du Bois underlined the corrosive implications—going all the way back to the founding—of such overrepresentation, specifically for the former slave states. According to Du Bois, the very existence of a Senate and of state-based representation in it was the “survival” like a “fetish” “of eighteenth-century American tory hatred and fear of democracy.” Just as it preserved the slaveocracy before the Civil War, nearly a century later state-based representation—combined with Black disenfranchisement—ensured that a small white Southern oligarchy enjoyed effective veto power over the nation’s economic and racial policies. “This lack of democratic methods not only gives the South four times the political power of the Middle West,” Du Bois contended, “but also gives it control of some of the most powerful committees in the Senate.” According to him, this meant that, “The race problem has been deliberately intermixed with state particularism to thwart democracy,” with the consequence that “[s]uch discrimination turns 13,000,000 Americans into second-class citizens.”[4] 

Indeed, it was out of these concerns that Du Bois, while supportive of the New Deal, remained skeptical that the Democrats—due to the stranglehold that white supremacist elites had over their Southern wing—would, when push came to shove, actually press for the interests of all workers regardless of race. It was not a surprise to him that, in passing the Wagner Act, New Dealers bowed to their white Southern wing in defeating efforts that would have prohibited racial discrimination by unions or extended the bill to farm workers (who constituted a substantial portion of the Black working class in the South).[5] This was also why he saw constitution worship as such a political threat. World War I’s hawkish climate linked “Constitution Day” celebrations to a culture of deference to the state—as well as of general fidelity to whatever the existing processes might be, regardless of how those rules systematically enhanced the power of the few. 

For Du Bois, the story of Reconstruction spoke to the fact that, given the reality of profound legal and constitutional roadblocks, genuine democratization likely would have to proceed through creative and even disruptive means. These means may combine mass protest with electoral and legislative mechanisms, all with the aim of significant institutional innovations affecting everything from federalism and representative authority to the structure of the judiciary. Such innovations would aim to impose new and popularly codified governing arrangements—though amendment, textual reinterpretation, or legislation—and proceed without falling prey to a destructive constitutional inflexibility. In fact, the country would only be transformed if Americans rejected “legalist” beliefs either in the wisdom of existing structures or in the idea “that consistency with precedent is more important than firm and far-sighted rebuilding.”[6] These arguments remain strikingly relevant in our current moment of institutional dysfunction, complete with the prevailing minoritarian takeover of the Supreme Court. Just as Du Bois contended, our times too call for broad-ranging and uninhibited discussion of the federal constitution’s constitutive flaws as well as creative reflection on how to improvise a new legal-political order out of the old. 

Aziz Rana is the Richard and Lois Cole Professor of Law at Cornell Law School. You can contact him at ar643@cornell.edu. 

[6] Du Bois, Black Reconstruction, 336.