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Toward a New Constitutional Politics


Aziz Rana is a professor of law and government at Boston College.

This post introduces a symposium on Aziz Rana’s The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them. Read the replies here.


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: the lopsided grant of power to certain states, an impassable constitutional amendment process, widespread voter disenfranchisement, and of course the dramatic control exercised by a tiny group of lifetime federal judges.

And yet, if you grew up in the United States around the turn of the twenty-first century, the dominant culture was that of almost religious textual devotion. Even Occupy Wall Street was launched on Constitution Day, September 17. One might well have assumed that the American constitutional system stood at the apex of liberal-democratic ideas. Given its manifest flaws, how did Americans come to idolize this document and what have been the political consequences of this reverence?

My new book, The Constitutional Bind, attempts to make sense of this striking tension in our collective life. It argues that the substance and implications of modern constitutional veneration have not been continuous since the founding. They are, instead, a distinctively twentieth century development. Over the past century, the text became constitutively joined to what Swedish sociologist Gunnar Myrdal in 1944 famously labeled the “American creed”—the idea that the U.S. stands for the promise of equal liberty for all. Such creedal constitutionalism was then further augmented by a series of additional commitments: civil libertarian values, market capitalism, constrained representative government with an empowered Supreme Court, and—crucially—the belief that these principles explained why the U.S. should direct the global order.

On its face, these are all disparate ends, which need not go together and might well be in profound conflict. But the story that U.S. politicians and commentators entrenched around the Constitution served a critical role in cohering such ends into a single national ideology, complete with shared faith in what the magazine magnate Henry Luce famously dubbed the “American Century.” And it is this story that Americans, even today, largely romanticize and embrace when venerating the text. 

The rise of modern constitutional culture cannot, therefore, be understood without connecting it to a second, equally significant twentieth century development: the transformation of the United States from a regional settler polity into the world’s dominant power, in the context especially of World War II, international decolonization, and Cold War conflict. Rather than being antithetical to empire, creedal constitutionalism provided the ethical core of the modern American imperial imagination.

The culture around the Constitution helped to invest U.S. interventionism—in service of market dictates and related security objectives—with a moral legitimacy that had rippling effects for both domestic and global practices. This fact also underscores the importance of linking the external and internal dimension of American constitutional politics—both when engaging in critique and when imagining transformative change.

Such an internationalist perspective speaks to the double-edged quality of creed and Constitution. The country’s driving national narrative has been a powerful language of reform, especially in the context of struggles for racial, gender, and LGBTQ+ inclusion. But its reverential approach to constitutional politics—in cementing the boundaries of dissent—has also buttressed existing hierarchies and justified state violence, at home and abroad. Moreover, at a time when the established institutions seem less capable than ever of responding to endemic flaws, the official, Cold War version of creedal constitutionalism offers an increasingly exhausted toolkit for thinking in comprehensive terms about today’s unfolding crises. 

In pushing beyond that confined vision, the book explores how the dominant constitutional culture steadily erased from shared memory the constitutional politics and ideas of a broad range of dissenting Left traditions. Especially before the strictures of Cold War law and politics, activists and critics articulated genuine constitutional alternatives to the existing state and economy, aimed at creating—for the first time in the United States—an authentically democratic society.

In highlighting these voices, the book offers an alternative archive of reformers, rarely engaged with in traditional legal scholarship, but whom I argue should be understood as important constitutional thinkers in their own right—Eugene Debs, Crystal Eastman, Laura Cornelius Kellogg, W.E.B. Du Bois, Vito Marcantonio, Jawaharlal Nehru, Oginga Odinga, Grace Lee Boggs and James Boggs, Beulah Sanders, Afeni Shakur, and Hank Adams, among numerous others.

Such activists range across social movements and even transnational identities, embodying perspectives grounded in Black, Indigenous, feminist, labor, immigrant, and Third World politics. Indeed, some were not Americans at all, but due to U.S. state power had no choice but to grapple with the terms of the American constitutional model. All of these figures confronted the constraining structures of their times with novel and evolving constitutional diagnoses and strategies. Given the well-worn nature of our current constitutional discourse, their collective reflections offer fresh insights, especially about the ties binding constitutional design to capitalist market relations, structural hierarchies, and imperial power.

All of this leads me to view The Constitutional Bind as partly an expression of the political and intellectual sensibility that in recent years has grown alongside the Law and Political Economy Project. Like much of the scholarship spotlighted by this blog, the book aims to expand the restricted terrain of what has typically counted as a constitutional or even legal matter. And it does so by attempting to place long-buried Left thinking about state and economy at the very center of our debates today, both scholarly and political.

To a significant extent, the book emerged from a second experience of the present, this one shaping my professional life. I was increasingly struck by the disconnected nature of teaching constitutional law every fall to first-year students. Outside the walls of the classroom, convulsive events were touching virtually every aspect of society and fundamentally puncturing the old faith in creed, Constitution, and American exceptionalism. But the course I oversaw, modeled after other classes long taught at American law schools, had remarkably little to say about virtually any of these unfolding dilemmas—military overreach, financial crisis, extreme class inequalities, the carceral state’s generational effects on poor and minority communities, white authoritarianism, and ecological disaster, to name a few. 

This is because my academic field, U.S. constitutional law, focuses primarily on the internal analysis of judicial, particularly Supreme Court, decision-making. More or less the entire scope of a contemporary constitutional law class consists of examining how judges resolved legal professional disputes about the textual interpretation of key clauses.

For this reason, course topics generally revolve around those matters that past Supreme Court justices considered worthy of deliberation. The only significant reform conversation that typically occurs centers on the kind of reform that the Court deemed important to address through its doctrine or that ultimately could be implemented through shifts in judicial interpretation. The result has been a course that sometimes appears to exist in an alternate universe. And teaching it seems to require first bracketing out the prevailing realities, and then proceeding as if we still live in another era entirely.

Of course, it is perfectly comprehensible for lawyers at law schools to focus their study and teaching of the Constitution on court cases and on judicial practices. Our schools are in the business of training future members of a particular profession, and our educational responsibility rests in preparing them for practice in the law. But the class highlighted to me the extent to which a very specific legal professional elite had come to dominate American knowledge production and cultural memory around the meaning of the constitutional system writ large. Due to specific mid-twentieth-century dynamics, academic and popular understandings of the Constitution had increasingly become directed by lawyers—in the academy and on the courts—deeply invested in a romance around the Constitution and its related national narrative.

As the Trump presidency proceeded, there seemed something deeply antiquated about holding on to a politics of constitutional rededication as the primary language for reform. Past left-of-center strategic choices, from the 1930s to the fallout of student and civil rights protest, were clearly compelling in their time—and they bore undeniable fruit. But each defensible choice was a step further down a path that, along with numerous exogenous factors, left the country adrift without the political resources and institutional arrangements to address deep-seated problems in the here and now. And despite it all, it was as if legal training, and much of the legal professional elite, remained in a bygone cultural moment, even as none of the terms and paradigms of that moment continued to make sense of the reality confronting Americans.

Thus, over these last few years I confronted a central dilemma in my own teaching: namely, the extent to which I felt ill equipped to answer increasingly present (and pressing) questions about the overarching constitutional system: Where did this pervasive constitutional veneration come from? How did it intersect with the main ideological battles of collective life? What were the alternative visions of constitutional possibility?

I suspected that the field of constitutional law—which might reasonably be asked these questions—was itself a key product of the very developments that warranted explanation. As I wrote this book, I began to see it as a belated, and in some sense personal, constitutional education. I wanted to resolve for myself important questions that I felt unable to answer and that I therefore too rarely presented to my students. Indeed, this project has at least partly been something of an origin story for my field—a field that has deeply shaped the nation’s understanding of its political structures, and yet is increasingly bereft at just the moment when Americans require serious interrogation of their constitutional system.

Ultimately, I believe that to make our way out of the general American fog, the broader public needs to fully reclaim cultural and political ownership of both constitutional memory and constitutional politics from a small coterie of judges and lawyers. Such a reclamation would, I hope, place transformative agendas—like those that once circulated broadly—at the heart of collective conversations going forward. My aspiration for this book is that in offering, among other things, a record of long-ignored accounts of constitutional possibility, and even of rupture, it can serve as one piece of that effort. And I am honored to be launching it through a set of conversations hosted by the Law and Political Economy Project. The participants in this symposium and their work have been profound influences on my thinking, and I am truly appreciative of their deep engagement with my arguments.