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.