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Constitutional Politics and Dilemmas on the Left


Willy Forbath (@WForbath) is the Lloyd M. Bentsen Chair in Law and Associate Dean for Research at the University of Texas, Austin School of Law.

This post is part of a symposium on Aziz Rana’s The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them. Read the rest of the posts here.


Aziz Rana is an invaluable scholar and public intellectual. No one has done more to push legal scholarship to examine law’s part in the construction of American empire and the building of the United States as a settler colonial society. Nor has any law professor so inspired left activists to think hard and creatively about what programmatic ideas and visions ought to guide an anti-racist, anti-imperialist, anti-capitalist political movement today.

Part of what distinguishes Rana’s approach is a rare combination of unflinching radicalism and thoughtful attention to coalition-building, not only among left social movements, but also between “revolutionaries” and “reformers,” “leftists” and “liberals,” in hopes of forging a progressive democratic majority. These virtues are on display in Rana’s new book, and in what follows, I hope to illustrate and explore the role they play in a few ways: by reflecting on Rana’s discussion of the Black Panther Party’s constitutional discourse; by comparing Rana’s take on constitutionalism to the one that Joey Fishkin and I advance in The Anti-Oligarchy Constitution; and by briefly examining how Rana wrestles with the problem of rupture – of what political and ethical considerations should inform collective decisions to break constitutional rules and conventions in service of progressive change.  

These discussions are also united by my main disagreement with the book. Rana aims to free us from Constitution worship. An abiding faith in “redemptive” or “creedal” constitutionalism, he argues, has long held back liberals, progressives, and even “the Left” from seriously promoting major change in our structures of government. Rana’s heroes are the idol-smashers who urged Americans to scrap the Constitution and build a genuine democracy. 

I think Rana greatly exaggerates how much “redemptive constitutionalism” has ever hobbled radical imagination or practical efforts for radical change. Not constitutional blinkers but violence, material asymmetries of power, and elite concessions have been the limiting factors. What’s more, the left has always done better at change-making when key figures and movements have made canny use of redemptive constitutional narratives and arguments. Rejecting that tradition leaves far too much on the table. And in his own final analysis, Rana’s democratic ethic leads him to put aside the rejectionist thrust of the book’s first several hundred pages in favor of this insight.

Constitutional Adventures of Black Socialism

Like Barack Obama, Aziz Rana’s father is Kenyan, and Rana has written about his upbringing in 1980s Los Angeles, with parents committed to “black internationalism” and the anti-colonial independence movements afoot in Africa. But if Obama’s upbringing inspired him to link “Malcolm and Martin” with “Jefferson and Washington,” in Rana’s family, “Malcolm and Martin” were linked to “Lumumba and Cabral.” And Rana carries on this internationalist legacy.

Constitutionalism, however, is a doggedly national enterprise, quite apart from the conservative tilt of U.S. constitutionalism today. So, you might think that a book by a committed left internationalist – and, above all, a book that’s concerned with the dangers of constitutional veneration – would adopt an anti-constitutionalist outlook. You might expect Rana to line up with the “Against Constitutionalism” branch of the legal left, or the let’s-just-get-on-with-doing-radical-politics wing of the LPE community. That may even be how some anti-constitutionalists choose to read the book. But it’s not so.

Rana finds that “democratic constitutionalism” long supplied an essential language and toolkit for envisioning radical change and framing radical demands. Constitutional politics, debate, and imagination provided radical movements and organizations – from Black abolitionists and Radical Republicans to Populists, Socialists, and Wobblies, from 1930s leftists to Dr. King’s Poor People’s Campaign in the ‘60s – with vital space for contesting the “basic organization of state and economy.” Perhaps the most revealing example of this perspective is Rana’s admiring but critical account of the Black Panther Party’s engagements with constitutionalism in the 1960s and ‘70s. The thrust of this account is not that the Panthers were too caught up in constitutional shadowboxing, but that their ideas weren’t constitutional enough!

The Black Panther Party, Rana shows, “invested deeply” in constitutional discourse and constitutional rights, which provided a language for articulating “both a project of radical institutional rupture and one of respect for legality.” He recounts how the Panthers framed their famous armed community self-defense campaign against police brutality and neglect around the Second Amendment’s right to keep and bear arms. Rana also delves into the Black Panther Party’s 1970 “Revolutionary People’s Constitutional Convention.” The broad rainbow coalition of radical movements and organizations hammered out a “re-founding” of state and society with “constitutional reports” framed around resource redistribution and reparations, along with “proportional representation in the administration of [governing] institutions” for “Black and third world people,” as well as for women. They also outlined a raft of new constitutional rights to a guaranteed adequate income, “full, equal, and non-exploitative employment,” and other social goods like health care, housing, and education. These deployments of democratic constitutionalism, Rana argues, provided the Panthers with a kind of “off-ramp from violent confrontation with the state” and a “culturally American” space for “irruptive politics” and envisioning transformative change.

What was missing from the Black Panther Party’s brand of constitutionalism, however, was no less significant than what it included. Their platform of policy proposals, according to Rana, failed to engage directly with constitutional structure and design. Here Rana draws a sustained comparison between, on the one hand, the Panthers and the 1970s left and, on the other, the American Socialist Party and the left of the early 20th century, including leading Black leftists like W.E.B. DuBois.

In contrast to the Panthers and the rest of the left of the 1960s and ‘70s, the early-twentieth-century left carried on extensive debates about constitutional structure. Discussions about “what to do with the states, whether or not to have a Senate, how to organize the federal judiciary,” Rana writes, “had been part of the drinking water of pre-Cold War Left politics.” Though the anti-left crusades of the Cold War era did not extinguish Black revolutionary politics, they did erase that kind of structural constitutional thinking and imagination from public consciousness, even among the “Black counter-public.”

And so, Rana underscores, the Panthers and the 1970s left lacked their forbears’ “sense of [constitutional] design” and appetite for structural constitutional “experimentation.” Unlike a “Debs, DuBois, or Haywood,” radical leaders and public intellectuals of the 1970s had nothing to offer in the way of “thick institutional analyses” of the procedural and electoral structures and national/state/local governmental relations baked into the Constitution.

A few old-time Black revolutionaries, like the great James Boggs, remained attuned to this thicker, structurally minded constitutionalism. Boggs predicted the rise of Black political power in the nation’s cities. The “City,” he wrote in 1966, “Is the Black Man’s Land,” but the radical potential of Black urban power, Boggs warned, would be stymied without structural changes to the federal constitutional system, its state-based scheme of representation, and the disproportionate power it gave to white rural and suburban spaces. So, Boggs urged black revolutionary organizations to “formulate a new Constitution,” establishing “a new relationship of government to people and to property, as well as new relationships between the national government, the states, and the cities.” But, as Rana ruefully observes, the Panthers never took up Boggs’s invitation to think hard about constitutional design.

Had they done so, they might have thought to argue for “proper federal electoral representation for cities” – via structural reforms like “giving senators to major cities in a reconceived upper house” or “assigning additional senators based on actual state population.” And had the Black Panther Party put forward those kinds of ideas, they’d have been able to dramatize “how aims of Black self-determination and genuine American democracy could reinforce one another.”

So, the history lesson on offer is this: Black and white socialists alike once had modes of thought to address how entrenched structures of state and national power tilted in favor of conservative forces. These long-ago socialists developed an “account of how American legal-political design contained [possibilities of] transformative changes.” But for the erasure of such structural constitutional thinking from collective memory back in the mid-20th century, the Black Panther Party might have carried on that robust form of democratic constitutionalism and bequeathed it to the socialists of today.

Rana’s Great Forgetting

In a word, Rana is concerned with what, in The Anti-Oligarchy Constitution, Joey Fishkin and I call a “Great Forgetting.” It’s clear what Rana thinks was forgotten – that crucial old tradition of radical, structural constitutionalism. And a central aim of The Constitutional Bind is to recover that tradition, by chronicling the words and deeds of its great proponents, examining how and why it was forgotten, and exploring what it would mean to reclaim this tradition today.

The Anti-Oligarchy Constitution has a similar aim and method. Like The Constitutional Bind, it sets out to chronicle and reclaim a forgotten tradition of constitutional thought and politics that may serve as a progressive resource today. Our respective storylines have similar turning points and some of the same protagonists. Our great forgettings happen in the same mid-twentieth century moment, when the Cold War eclipsed the New Deal.

But there are also important differences. Rana’s focus is on a tradition of ideas and arguments about structural-constitutional design, critique, and imagination – what to do with the states, whether or not to have a Senate, how to organize the federal judiciary, etc. Our primary focus is on a tradition of constitutional ideas and arguments about the nation’s political economy: What to do with the public lands, the currency, the giant banks and corporations, how to undo the social and political power of industrial and financial capital, and how to empower the working class and secure the material security and independence of all Americans.

Unlike the issues Rana’s book addresses, many of these subjects are ones that Americans no longer see as constitutional at all. So one aim of The Anti-Oligarchy Constitution is to show what constitutional arguments and battles about them even looked and sounded like – and particularly what the progressive side had to say. Arguments in this tradition were about the kind of political economy our “republican form of government” requires: one that prevented oligarchy, ensured a wide-open middle class that was broad enough to accommodate everyone, and honored (haltingly and often in the breach) a principle of inclusion across race, gender, and other lines of group subordination.

The main venue of these arguments was not the courts, but the Congress and Executive, the polity, and the public sphere. These were chiefly interpretive arguments; but they were also often arguments for amendments and structural change, such as Rana explores. Fishkin and I show how these structural-reform arguments built on the idea that such changes were needed to revise those features of the extant Constitution that enabled ruling elites in their governmental strongholds to thwart essential substantive reforms and block popular self-rule.

Both books, then, rest on the premise that progressives today need to step back from the narrow, court-centered, liberal-legalist ways of thinking and arguing about the Constitution forged by legal and political elites in the last century. Both hope to rekindle forms of argument and collective action that happen outside courts – and address institutional arrangements and structures of power that can only be seriously challenged and remade in the polity and public sphere.

There is, however, another marked difference between the two books. The tradition of structural constitutional thought Rana prizes is one he sees as the distinctive province of “the Left,” while the tradition of constitutional political economy Fishkin and I reconstruct is one that was decidedly mainstream, though often overlapping with Left currents.

Rana’s book aims to provide today’s left with an historical lineage and precedents for the constitutional battles ahead. It offers a compelling set of forbears. If I were there in the early 20th century, I’d have joined Rana as he (narratively) lines up with Debs’s American Socialist Party, wrestles with the Party’s internal debates between the direct-action, revolutionary syndicalist and the electoral-politics-minded parliamentary socialist factions, and signs on to the Party’s agenda of structural-constitutional reforms.

A quarter century older than Rana, I was there in the late 1960s and early 1970s. A fledgling anti-war activist, I worked in a community center in Harlem alongside the local Black Panther Party and took on board views like the ones Rana’s parents imparted to him: that the eradication of Black poverty and subordination was linked to reconstructing America’s political economy and dismantling the American empire. And like Rana, I continue to think that’s right.

So, I am a fan of the intergenerational exchanges amongst left thinkers and activists, past and present, that Rana weaves into this magnificent book.

But The Anti-Oligarchy Constitution has different ambitions. It aims to show mainstream liberals and progressives that for most of U.S. history, their forbears would have spurned the now-dominant liberal view that the Constitution is silent about what we today call “economic policy.” Instead, they made constitutional arguments and waged constitutional battles against concentrations of wealth and power, class domination, and material inequality in changing iterations of the tradition I just sketched.

The Problem of Creedal Constitutionalism

What explains this difference in emphasis? Part of the answer is a difference in our imagined audiences – to whom we see our respective book’s speaking, and upstream from that decision, who we think needs convincing in our present moment. But it also represents an underlying disagreement about how best to read U.S. social and constitutional history.

Rana makes much of the fact that Debs and the Socialist Party called for more thorough-going structural reforms and highlights their supposedly distinctive project of “disenthralling” Americans from constitutional veneration. I am more struck by the commonalities of structural reform proposals on the Left and in the mainstream of early 20th century politics, which are no surprise because there was plenty of intellectual and political commerce between these worlds. If the socialists called for abolishing judicial review, so did the stodgy, anti-socialist Sam Gompers and his American Federation of Labor, along with a great many other mainstream reformers. If Debs and the socialist press called for making the Constitution far more changeable by amending Article V, so did the New Republic and Theodore Roosevelt and his Progressive Party. Both camps also wanted to alter or abolish the Senate. And so on.

Throughout The Constitutional Bind, Rana also makes much out of the distinction between constitutional reform arguments framed around principled rejection of “the 1787 text” and ones framed instead around “redeeming” the “true principles” of the Constitution — popular sovereignty, the Declaration of Independence, and the Bill of Rights. Taking a leaf from Jack Balkin, Rana calls arguments and narratives built around this second frame “redemptive” constitutional arguments and narratives. While Balkin champions this framework, Rana opposes it.

Whatever matters of principle separate the two of them, I am not sure that the difference between these rhetorical frames mattered so much to the relevant historical actors. And I am not sure they should matter so much to us. The tradition Fishkin and I reconstruct employed the redemptive frame on behalf of substantive reforms that often were identical to those demanded by Rana’s rejectionist Left; and it employed both the redemptive and critical frames in its arguments for structural reforms that were often identical to those advocated by that same Left. Even figures that Rana lionizes as disenthralling Americans of the constitution, like Eugene Debs, often embraced the rhetoric of constitutional redemption. When it came to framing constitutional arguments, one could – and did – mix up one’s tropes.

Rana’s distrust of redemptive constitutionalism across the American past has much to do with his account of Cold War America, where he finds that this redemptive style of constitutional thought and argument morphed into what he calls “creedal constitutionalism”: the belief that from its founding the U.S. has been committed to equal opportunity and equal rights for all; and that the collective project inscribed in the nation’s founding texts has been the halting but steady fulfillment of this promise.

As Rana acknowledges, this nearly messianic narrative actually goes back to the abolitionists and was brought into the mainstream by Lincoln and the Republican Party of the mid-nineteenth century. It was taken up by conservatives in the early twentieth-century who wielded it against all that era’s “constitutional tinkering,” and pressed it into service as an apologia for American imperialism: America was bringing the genius of its constitutional ideals to the lesser, non-white peoples of the world. But, according to Rana, “creedal constitutionalism” only came into its own during the Cold War in the form of what Mary Dudziak memorably dubbed “Cold War civil rights.” When the Supreme Court finally lent some heft to the abandoned commitments of the Reconstruction Amendments, it enabled the nation’s legal and political elites to fashion a brand of proto-neo-liberal constitutionalism, which fused civil rights and liberties to the more or less untrammeled sway of American capital, at home and abroad – firmly wedding continued racial hierarchy and universalism, continued class domination and equal rights.

True enough as far as the stifling “consensus politics” of Cold War liberalism was concerned. Yet, Dr. King and the Poor People’s Campaign still managed to find in “creedal constitutionalism” rhetorical resources for making much the same demands for radical reform that Rana finds in the texts and reports of the Panthers’ Revolutionary Convention. Still, Rana cannot help but rue and criticize the “redemptive beliefs” and “reformist faith” afoot in King’s and others’ rendering.

The problem with this embrace of constitutional redemption, Rana argues, is that it bolstered a hegemonic reverence for text and structures that sorely needed radical change. Whether the hegemony of “creedal constitutionalism” really was to blame for the eclipse of structural constitutional critique – or whether the Cold War purges and the mid-century successes of now-defunct New Deal labor reforms did the lion’s share of the work, by depriving radicals of all stripes of the kind of mass working-class support their agendas enjoyed in the 1930s – are questions that no longer matter much, at least when it comes to the present.

Revolutionary Ethics

And when it comes to the present, and what is to be done, Rana does something remarkable. He puts aside the critique of “creedal constitutionalism” at the heart of his book. No longer is structural constitutional change anathema to liberals. We are awash in proposals from card-carrying legal liberals and mainstream progressives for structural constitutional reform. But how to enact them?

Prominent liberal scholars – think Bruce Ackerman or Akhil Amar – have long had proposals for working around the obdurate Article V in the name of structural reform. They offer elaborate and arcane arguments about the ways that constitutional history authorizes constitutional rule-breaking and rupture. Perhaps because he is a revolutionary, Rana treats the problem of rupture more gravely. For the left to urge constitutional rupture in the context of Trumpian fascism, he points out, is nothing responsible democrats should do without deep ethical reflection.

The Constitutional Bind offers no full-blown discussion of revolutionary ethics, but it lays down a marker, which Rana calls the “majority first” principle. Without a broad majority behind progressive change, there can be no responsible calls for rupture. And building that majority, Rana concludes, is only done by putting aside quarrels about constitutional narratives. Before structural reforms and whatever ruptures their enactment may entail are ripe for discussion, there must first be power-building reforms, and a left-leaning creedal constitutional legacy, Rana concedes, has at least as much to contribute as the heroes of his long chronicle. It is a wise conclusion from an unflinching yet coalition-building revolutionary.