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Venerating Constitutional Veneration?


David Pozen is the Charles Keller Beekman Professor of Law at Columbia Law School and the author of The Constitution of the War on Drugs.

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


Aziz Rana’s The Constitutional Bind upends the standard story of constitutional veneration in not one but two ways. Against the notion that “Americans have treated the United States Constitution . . . as a sacred symbol” since “the moment of its ratification,” Rana shows that anti-constitutional activism remained a potent force in American life until the past fifty years or so. What Louis Michael Seidman has described as “the secret history of American constitutional skepticism” turns out to involve a much more robust, and less secretive, array of movements than is often assumed today.

In addition, The Constitutional Bind shows that the eventual triumph of constitutional veneration—and the consolidation of a political culture that treats skepticism as heresy—was bound up with the nation’s rise as a global superpower. Policymakers and pundits enlisted a “creedal” account of the Constitution to justify a series of imperialist projects at the turn of the twentieth century and then, more systematically, following World War II. Hegemonic worship of the founding document at home facilitated hegemonic power projection abroad. The real story of how Americans learned to stop worrying and love the Constitution, Rana teaches, is surprisingly contemporary, contingent, and Cold War–inflected.

These are major contributions, and the analysis that bears them out is dazzling in its intellectual acuity and empirical range. Yet while I celebrate Rana’s retelling of constitutional history, his centering of marginalized visions, and his call for “a constitutional politics of change” (36), I will use this essay to put pressure on one aspect of his argument: the premise that constitutional veneration has itself played a crucial role in thwarting “essential democratic reform” (2), trapping us in the book’s titular “bind.” I don’t doubt that constitutional veneration has shaped and constrained political possibilities in ways that demand critical scrutiny. But just how much of an obstacle to reform does “this American ideology” (15) pose? There are, I think, several reasons to question the extent of its practical significance.

The plasticity of constitutional ideology. — First, both constitutional skepticism and constitutional veneration are big tents, subsuming all manner of competing and even contradictory reform agendas. Within the skeptical camp, as Rana recounts in rich detail, we find populists and socialists, territorial separatists and cosmopolitan utopians, radical activists and pragmatic incrementalists. Among those who profess fealty to the Constitution, we find abolitionists and ethnonationalists, progressive New Dealers and Christian evangelicals, civil libertarians and law-and-order conservatives. Just how constraining is an ideology that encompasses such discrepant programs and perspectives? Whatever influence constitutional veneration might have had on the development of these movements, it appears to allow a great deal of play in the joints.

Domination and dysfunction without veneration. — Second, plenty of countries that lack a culture of constitution worship have their own profound democratic deficits as well as brutal legacies of exclusion, exploitation, and colonialism. “What defines French political identity,” Rana observes admiringly at one point, “has little to do with the Fifth Republic’s 1958 constitution” (36). Israel, Saudi Arabia, and the United Kingdom don’t have written constitutions at all. If any number of emancipatory advances haven’t come to pass in these countries, it’s not due to an excess of constitutional veneration. The prevalence of socioeconomic domination and democratic dysfunction across so many modern states might suggest that forces such as global capitalism buttress them more than any domestic constitutional ideology.

Structural barriers and biases. — Third, structural features of the U.S. Constitution that have been in place for much longer than constitutional idolatry, on Rana’s telling, have made certain democratic reforms extraordinarily difficult to achieve regardless of the cultural climate. These features include not only Article V’s amendment rules, which place multiple supermajoritarian hurdles in the path of formal constitutional change, but also bicameralism and presentment, the apportionment of senators, and judicial review. Each of these institutional arrangements and more, Jonathan Gould and I have argued, are structurally biased against progressive causes. Many political scientists contend that the constitutional framework further explains why we developed two, and only two, relatively stable, centrist parties. The United States has at once (1) the most onerous constitutional amendment process in the world, (2) more veto points in its legislative process than any other advanced industrialized nation, and (3) an entrenched two-party duopoly—all of which pose formidable barriers, separately and jointly, to the sorts of bold transformations that Rana seeks.

Subconstitutional possibilities. — Finally, some foundational changes to our democratic practices could be implemented without changes to constitutional law. In his concluding chapter, Rana expresses support for expanding voting rights, adding justices to the Supreme Court, curbing presidential power, moving to multimember House districts, providing reparations for Native nations, offering statehood to the District of Columbia and self-determination to Puerto Rico and Guam, and making it easier for workers to unionize and strike. Depending on the details, each of these reforms could be accomplished without revising constitutional doctrine, much less the canonical text. (Revisions to constitutional doctrine could, of course, do additional good.) It thus seems unlikely that Constitution worship ranks high among the features of the U.S. system that stand in their way.

To be clear, Rana does not claim that an ideology of constitutional reverence is the only or primary force binding us to an inequitable status quo, and he makes a compelling case that this ideology risks “naturalizing a fundamentally undemocratic order” (37). Recovering the skeptical strains in twentieth-century American constitutional thought may well be an important step toward liberating our present-day politics as well as grappling with the costs of the creedal consensus. Thanks to Rana, we now have an authoritative new resource for effecting this recovery.

It is no knock on Rana, then, that The Constitutional Bind ultimately raises more questions than it answers regarding how much, and in what ways, constitutional veneration matters. Is constitutional veneration the cause of constitutional stagnation, or is it in part a symptom, insofar as longstanding legal arrangements invite reactionary rationalizations to justify their persistence over time? Or perhaps both are best seen as epiphenomenal excrescences of deeper social and economic logics? Just how widespread is constitutional veneration, as an empirical matter, and to what extent do its substantive and symbolic meanings vary across contexts and groups? What are the mechanisms, exactly, through which this ideology facilitates minority rule, and is its overthrow a necessary or sufficient condition for potentiating democratic reform? Might it be the case that constitutional veneration is more bark than bite, constraining political rhetoric to a greater degree than it constrains the feasible decision set for policymakers and activists?

These are hard questions, and one of the many virtues of The Constitutional Bind is that it helps to surface them. Whatever the ideology of constitutional reverence has done to our politics, it is vital to appreciate how the ideology itself was politically constructed. Yet insofar as Rana can be read to pin some real blame for the United States’ moral and democratic defects on Americans’ tendency “to idolize a document that fails them,” we might wonder whether this magisterial work ironically gives its subject too much credit—venerating the very constitutional veneration that it deconstructs.