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.
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Of the classical myths scholars of constitutional law invoke, few are more widely drawn upon than that of the dual and dueling protagonists William Lloyd Garrison and Frederick Douglass. The fable we tell ourselves about these two men is a moralistic tale of the possible worlds we might inhabit in response to injustice: Garrison, a white abolitionist, declared the United States Constitution a “covenant with death”; Douglass, a revered Black philosopher who had personally experienced and escaped enslavement, referred to the Constitution as a “glorious liberty document.” Both men seemingly inhabited a shared nomos, or moral universe, that understood the institution of human enslavement as the abomination of their time; both men seemingly aspired to the same imagined and utopian future where enslavement was wrested root and branch from American society. But their views diverged on the Constitution or, more particularly, the constitutional law and culture necessary for realization of that utopian vision.
When the Garrison-Douglass myth is invoked in the twenty-first century, a flattened reading of the characters within a modern context drives the narrative: human enslavement has been long abolished by formal constitutional amendment; the civil rights movement organized around the Constitution to persuade a public to embrace equality, at least nominally. Against this backdrop, Douglass’ stance appeals. Douglass himself, now a figure of mythic proportions, exerts his own gravitational pull back to the Constitution. If a person enslaved by the United States can maintain and even celebrate constitutional faith—so, too, can “We the People.” This is one reason why, as the historian David Blight has observed, the American right has appropriated Douglass in recent years, with congressional Republicans even wearing “Frederick Douglass Was a Republican” buttons to mark the unveiling of a statue of Douglass in the United States Capitol in 2013.
Professor Aziz Fidel Kipngeno Rana appears, at first blush, an unlikely figure to embody William Lloyd Garrison in our time. But more than simply reanimating Garrison, Professor Rana’s monumental new book offers over eight hundred pages of deeply researched and blistering analysis that will forever transform, even destroy our simple Garrison-Douglass myth. Indeed, The Constitutional Bind may unsettle our reliance on constitutional myths entirely, taking with it our blind faith in the Constitution we have inherited. In this brief post, after describing what I see as the text’s central virtues, I turn next to what might be lost were we to abandon our longstanding constitutional struggle toward a more perfect union.
Renouncing Our Constitutional Faith
The Constitutional Bind will no doubt add momentum to the growing critique of our current constitutional culture and, particularly, the role of the Supreme Court within that culture as the exclusive and unassailable font of constitutional meaning. The text offers a rigorous “constitutional accounting” (655) that rejects the overwhelming focus in constitutional law pedagogy on the Supreme Court and its practices of textual interpretation; it even rejects the constitutional culture of legal elites entirely.
But the real strength of The Constitutional Bind comes from the extended march that the text guides its readership through toward realizing, and ultimately questioning, the taken-for-granted presumption that “We the People” must maintain faith in our Constitution to hold our nation together on the path toward a more perfect union—however flawed that Constitution and nation might be. Professor Rana names this taken-for-granted presumption “creedal constitutionalism,” which he defines as “fusing of constitutional devotion with the idea of the country as an unfolding project in equal liberty” (11) (elsewhere, as an “overarching myth of peoplehood” (3) that contains both a “commitment to the document” and “belief in a national narrative of unfolding equality and liberty” (11)). By identifying and naming this particular strand of constitutional culture, The Constitutional Bind allows readers to question and interrogate the presumed universalism of our modern constitutional culture, reshaping discourse around constitutional practice, culture, theory, and law for generations to come. In example after example, Professor Rana reveals “creedal constitutionalism” as historically contingent. Though this culture often self-presents as reaching back to the Founding, it turns out not to be a creature of even the long nineteenth century, but rather came to life in the twentieth.
In aiming to unsettle the dominant constitutional faith to forge a wholly different constitutional future, The Constitutional Bind sets its sights breathtakingly high. No text can spontaneously liberate a public from the constitutional culture that binds it—and the discourses of power that culture offers, however ephemeral—without presenting an alternative path forward, either toward dissolution of the state, transformation of our existing nation, or perhaps some form of insularity or secession. Whether The Constitutional Bind reaches those breathtaking heights will likely turn on whether it offers a viable path from our creedal constitutional present to such a utopian future. On this point, however, the text may serve too many masters.
On one hand, Professor Rana embodies the Garrisonians. But in the place of their moral perfectionism, which called to seek personal holiness, he offers “democracy”—at times refined to democratic socialism—as well as Marxist or great “Left” views, toward “decolonization” and away from our “settler” state (567-612). For readers that share that utopian vision, the draw to abandon creedal constitutionalism could be strong. But rather than aim for dissolution of the state, The Constitutional Bind seems to take the position that the United States will hold together, even while rejecting our written Constitution. In support of this prediction, Professor Rana renders decades of history—history that reaches from the Philippines to Liberia to Indian Country—and, in a model lesson of inclusive constitutional conversation, foregrounds philosophers and activists from Black, Native, and other colonized communities.
On the other hand, The Constitutional Bind aims to thread the needle between Garrison and Douglass by pressing the reader toward a broader vision of constitutional law and constitutional history. Douglass “sought to call into being a national ethos that did not in reality exist” (69). Our national identity has never been wholly wedded to the text of the Constitution, Professor Rana reveals (while revealing himself as neo-Turnerian)—rather it was the long nineteenth century projects of expansion, dispossession, racialized hierarchy, and human enslavement that provided the United States with its national identity and coherent political and constitutional ethos (46-47). In essence, these projects of dispossession, extraction, and settlement constituted the United States more than the written Constitution. So much so that in the late nineteenth century, the postbellum, post-frontier public questioned the ongoing vitality of a constitution drafted for a wholly different era. It was only when the Constitution was repurposed in the twentieth century that it, rather than colonialism, became our national religion.
Yet, after marching through eight hundred pages of gorgeously and fiercely rendered exposition, the path from creedal constitutionalism to Utopia remains shrouded by fundamental questions. Most importantly, for a scholar of American colonialism, is the question of how the abandonment of creedal constitutionalism will lead the United States to a decolonized Utopia. The Constitutional Bind gestures toward the need for “a conscious moment of decolonial rupture and accounting,” a broader embrace of the lessons of black nationalist visions of decolonization, and perhaps greater independence and self-determination for Native nations and other colonized peoples (602). But its most forceful contribution is its recognition that what must be wrested root and branch from our society is not the vestiges of institutions of human enslavement, it is not colonialism, it is creedal constitutionalism. Its efforts at balance and inclusion notwithstanding, The Constitutional Bind remains firmly in the Garrisonian camp.
The Binds We Have Built
The spirit of Douglass may continue to haunt The Constitutional Bind. There are, as Douglass and his “radical constitutionalists” recognized, significant costs to the Garrisonian approach, costs which loom particularly large in the context of American colonialism. The abandonment of our constitutional order leaves unanswered central questions of what government will resolve the longstanding (and ongoing) problems of American colonialism. As critics of Garrison wrote in 1855, “[d]issolve the Union, on [the issue of slavery], and you delude the people of the free States with the false notion that their responsibilities have ceased, though the slaves remain in bondage. Who shall stand up as deliverers, then?”
In abandoning “creedal constitutionalism” or a vision of national and constitutional struggle toward a more perfect union, we also abandon our debts, failures, and the original sins that must be redeemed toward perfecting that union. Abandoning “creedal constitutionalism” might appeal, in part, because it allows us to erase the seemingly unredeemable constitutional memories of American colonialism—memories of invasion, dispossession, family separation, and mass slaughter. But this past is more than mere prologue, it is our present also.
Abandoning our Constitution also erases the struggles of the past two hundred and fifty years toward a more perfect union and the laws crafted amidst that struggle. Douglass and the “radical constitutionalists,” in contrast to the Garrisonians, centered law within their movement and “[w]hile their movement lasted, the radical constitutionalists contributed to an immense growth of law.” So, too, have communities colonized by the United States crafted over the last two hundred years some of the most robust forms of self-determination in the world—organic acts giving life to specialized agencies, innovative forms of representation, complex forms of dual citizenship, hundreds of treaties, full titles of the United States Code, reams of regulations, as well as tribal constitutions, codes, and governments. Native advocates fought contemporaneously to Douglass and his radical constitutionalists, and they continue to fight today. Much of this history, especially of the last fifty years, is omitted from The Constitutional Bind—a text that foregrounds metaphor, intellectual history, and internationalism over the laws and legal histories crafted by the hands of peoples colonized by the United States.
Professor Robert Cover famously described law as “the projection of an imagined future upon reality.” In this way law offers us an archive, a text that reveals the paths drawn between our present moment—however flawed—and the utopian future of those who imagined and co-created those laws. At its best, law offers a map bridging our present moment with an imagined destiny; a map sketched in the blood of generations of Native and other borderlands peoples as they resisted with their bodies and lives to build a less violent, less colonial world—law by law, treaty by treaty. Must we wipe these archives clean toward the aim of a utopian future? Can we truly envision Utopia and the path to that future without these archives?
Consider, for instance, whether a bare appeal to “democracy,” without recourse to our specific constitutional history, will return the Black Hills (Pahá Sápa) to the proper care of their relatives. It is only by attending to this history (and law) that the Lakota have won federal recognition that the United States violated the Fort Laramie Treaty of 1868, and that the ongoing rejection by the Lakota of monetary compensation for their loss can be properly understood. Similarly, will “democracy” return our languages to our children and guide them toward proper relations and the good life? Will democratic socialism? Will equality? If so, why were these not the aims of colonized peoples all along? Perhaps there are deeper lessons in these laws, and the imagined futures they project, that we must learn before we can truly release ourselves from whatever binds us.
