Peter
McMillan teaches English part-time and writes part-time.
Several books (fiction and non-fiction) published under
his name and a pen name (Adam Mac) are licensed under
the Creative Commons and available for free download as
PDF books.
For
all the meaningful twentieth-century changes, the mythmaking
that took hold around the text obscured how serious defects
had never been addressed. And today such flaws have become
virtually impossible to ignore. Above all, the Constitution
remains deeply undemocratic. Americans have a system that
profoundly distorts popular sentiment—through extreme
over- and underrepresentation; veto points that allow corporate
goals to quietly dictate policy; and unelected judges that,
given a dysfunctional Congress, have significant rein to
impose their own worldviews, even when they diverge wildly
from pervasive national values.
The persistence of a culture of constitutional veneration
creates an upside-down world. For decades, Americans have
been conditioned to uphold an increasingly dysfunctional
system as an ideal—typical embodiment of democratic
possibility and to seek to replicate it everywhere. At the
same time, the central repositories of constitutional memory
and knowledge—in universities and in public life—have,
until very recently, spent surprisingly little time questioning
the overall narratives or asking where they came from.
In 2024, Aziz Rana, professor of constitutional law at Boston
College, published The Constitutional Bind: How Americans
Came to Idolize a Document that Fails Them. The book
is timely in that the Constitution and its custodian, the
U.S. Supreme Court, have again surfaced the tensions between
the egalitarian promise of democracy in the Declaration of
Independence and the anti-majoritarian features of the Constitution.
Discussions of constitutional change are in the air in the
U.S., and even the New York Times has published a number of
essays by its columnist, Jamelle Bouie, addressing some of
the contemporary shortcomings of the Constitution. Rana and
Bouie fall in the camp of those who share a progressive vision
for American democracy. Meanwhile, on the Right, there have
been calls for a second Constitutional Convention to re-write
the document in line with conservative republican views on
the pre-eminent role of property and capitalist markets in
American society and the lesser role of the state in ensuring
social justice and direct democracy.
At this point, Rana’s book’s title needs to be
deconstructed. What is the constitutional bind? How is it
that Americans idolize the Constitution? And how does the
Constitution fail Americans? Rana introduces the term ‘creedal
constitutionalism’ to refer to the excessive or even
obsessive veneration (other terms Rana frequently uses are
‘worship’ and ‘reverence’) that Americans
have for the 1787 document that sketches the structure and
processes of a new government. This is take two, because the
Articles of Confederation, the first attempt to design a new
government framework, failed. Rana notes the irony in there
being a ‘constitutional creed’ as it would seem
to be more appropriate for there to be a creed, or statement
of deeply held beliefs, in the preamble to the Declaration
of Independence:
We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty
and the pursuit of Happiness.
Now, in the words of the preamble to the Constitution:
We the People of the United States, in Order to form a more
perfect Union, establish Justice, insure domestic Tranquility,
provide for the common defense, promote the general Welfare,
and secure the Blessings of Liberty to ourselves and our
Posterity, do ordain and establish this Constitution for
the United States of America.
The former is a system of political beliefs, while the latter
is the means of achieving a set of beliefs, and not necessarily
those enumerated in the Declaration of Independence. For Rana,
the implicit statements of belief in the Constitution are
at odds with the Declaration of Independence insofar as the
former creates a structure of government relations that privileges
aristocratic and business elites and was designed to prevent
‘mob rule’ and disruptive rebellions. In contrast,
the notions of political and economic equality in the Declaration
of Independence threaten the established order as was the
case with the early 20th century Progressive and Socialist
dissidents as Rana discusses in the text.
Returning to the book’s title, the ‘worship’
of the Constitution is something that Rana shows has developed
over the centuries with the expansion of American interventions
(political, economic and military), which he traces back to
the Philippine-American War (1899-1902). He explains how America's
early foreign policy as an emerging Great Power used constitutionalism
as a means of amplifying its international influence without
the baggage of European imperialism. Constitutionality provided
a more modern and egalitarian cover for realpolitik, and it
was also useful in re-presenting the 1787 Constitution to
an American citizenry who had become disillusioned with the
disconnect between egalitarian promises and the actual blueprint
for the American system of government. It does bear remembering
that this was before the constitutional amendments that transformed
the Senate to an elected legislative chamber and that extended
the right to vote to women and before the turn of the American
system of government to presidentialism.
Rana argues that after World War II with the ensuing intense
rivalry for ‘empire’ between the U.S. and the
U.S.S.R. over the newly-liberated nations of the Third World
(today’s Global South), the positive changes in America’s
post-war liberal democracy can be explained in part by the
fact that as a superpower in a global rivalry, America was
compelled, as many elites conceded, to improve its record
of actual democracy in domestic affairs, above all, in race
relations. Of course, other determinants—economic prosperity,
civil rights concessions and the fear of Soviet-style totalitarianism
and widespread nationalizations—converged in post-war
America to produce a common veneration for the Constitution.
Dissent was silenced by state suppression, creating one of
the ironies of the Cold War, where Orwellian terms could equally
apply to free America. And in the early part of the century,
the alternatives of socialism and Progressivism had been made
practically invisible. State suppression of unorthodox views
has not been a stranger in America’s history. There
is the way of the Constitution and it is the best way.
By 1987 [the Constitution’s bicentennial], it appeared,
America’s romance with its founding document had been
set in stone. The Constitution was no longer treated as
just one political system among many possibilities. Instead,
in the years between the centennials, the document gained
a culturally exalted and near-sacrosanct position. Above
all, it became fundamentally wrapped up with what Americans
viewed as the country’s singular characteristics and
special global destiny.
Essentially, the Constitution has become one of America’s
most important exports—not infrequently marketed with
evangelical zeal—and the perceived universal relevance
of the Constitution has enhanced its veneration by Americans,
notwithstanding the sometimes blatant inconsistencies between
American democracy for export and American democracy for domestic
consumption. Most egregiously, the lag between 1863 emancipation
and the end of segregation and the passage of legislation
to protect the voting, representation and participatory rights
of Black Americans took more than a century, and still these
rights have only been partially realized.
To complete the analysis of Rana’s book title, the Constitution
has failed the American public—not everyone, for the
elite minority has continued to prosper—by making it
increasingly less likely to correct longstanding representation
issues. The Electoral College and the Senate, as from the
beginning, give disproportionate electoral power and upper
house legislative power to less populated states whose political
agendas diverge significantly from states with large urban
populations. This is the ages-old controversy between rural
and urban centres where differences over infrastructure and
social justice priorities have been insurmountable.
In short, for Rana, a pervasive constitutional idolatry has
limited the scope for progressive change in America. This
serves anti-majoritarian elites who fear mass democracy but
obstructs representative democracy for the majority in presidential
elections and in the legislation coming out of Congress. Furthermore,
an undemocratically-elected president has repercussions on
the federal judiciary, especially the Supreme Court, which
exercises considerable law-making authority by means of judicial
review. For example, the Roberts Court (sometimes referred
to as the Trump Court) has recently ruled in favour of broad
presidential immunity from criminal prosecution and has reversed
50 years of abortion jurisprudence by overturning Roe v. Wade.
Both decisions are now effectively law, yet neither reflect
American popular support, neither would pass as legislation
and neither conform to Court precedents.
Throughout the book, Rana takes issue with the outsized role
of elites in American politics. He, himself, has lived and
worked among elites having earned his law degree from Yale
and his Ph.D. from Harvard and taught at two private universities,
Cornell and Boston College. Yet, the somewhat extravagant
and exhausting list of different kinds of elites—such
as white planter elites, mercantile elites, corporate elites,
party elites, governing elites, racial elites, labour movement
elites, intellectual elites—raises the frighteningly
disturbing question: Is this book, which is highly critical
of elites, not only written by an elite but also written for
other elites?
* * * * *
This is not a traditional text for constitutional law but
a text for understanding the constitutional politics at play
through nearly a quarter of a millennium of American history.
Unlike constitutional law, which focuses on the courts, lawyers
and the corpus of decisions and legal reasoning, Rana’s
constitutional politics concentrates on the body politic,
specifically the forgotten and the non-elites. The non-elites
fall into two general categories: those disenfranchised or
underrepresented on account of race and those left out because
of their economic standing.
This is also not an anti-American history. As the author puts
it, it is “a form of social criticism, in which history
is presented in service of today’s problems as well
as tomorrow’s latent possibilities.” It can also
be read as a critique of the way nations write history for
their citizens as part of nation-building. What is particularly
useful in the author’s reconstruction is the rediscovery
of counter narratives and conflicting values and perspectives
that have been homogenized over the scores of years. Referring
to many of those not typically featured in constitutional
writing, the author argues that:
These characters, familiar and unfamiliar, should be named
and understood as important constitutional thinkers—Eugene
Debs, Emma Goldman, Crystal Eastman, Hubert Harrison, Laura
Cornelius Kellogg, W. E. B. Du Bois, Harry Haywood, Paul
Robeson, Norman Thomas, Vito Marcantonio, Martin Luther
King Jr., Grace Lee Boggs and James Boggs, Afeni Shakur,
Beulah Sanders, Vine Deloria Jr., and Hank Adams, to name
just a few. These activists confronted the constraining
structures of their times with their own novel and evolving
constitutional diagnoses and strategies, many of which remain
relevant today.
The author’s purpose in writing this book is to foster
solidarity and resistance on the Left and to infuse egalitarian
and majoritarian features into America’s elitist and
anti-majoritarian system of government. His move to undo the
Constitution’s anti-majoritarian bias is an advocacy
for taking political and economic power from the traditional
elites and transferring it to the ‘majority’ who,
until now, have been ruled by an elite minority. This is not
to give license to the subjugation of the ‘elite,’
but rather to rebalance political rights based on the principles
espoused in the Declaration of Independence and notionally
ascribed to America’s liberal and democratic system
of government, in which ‘liberal’ refers to limited
government and not ‘Leftist.’ One of the central
points of the book is that there has always been dissent,
although state suppression has likewise always tended to silence
the voices of protest and propagandize to the contrary, often
with great success. Take for example the fact that, even today
70 years after the McCarthy Red Scare, to be called a ‘communist’
or even a ‘socialist’ in America can be more harmful
to one’s reputation and prospects than to be called
a ‘godless atheist.’ It is therefore critical
that dissenters along with their arguments and the context
should not be lost to history, and it is especially important
to call up during times like the present, which Rana characterizes
as deferential and even worshipful, with respect to the Constitution
and the framers. And, for Rana, in today’s America,
this reverence applies to those on the Left as well as those
on the Right.
One of the areas where the ideas expressed in the book could
be better fleshed out relates to the executive branch and
the expansion of presidentialism in America. While the author
often speaks of the Constitution’s checks and balances
as tending to thwart representative government, in America
an unchecked executive branch is a real threat as well, as
has been demonstrated time and again, most recently in the
reckless flouting of limits to the presidency claimed by former
President Trump and endorsed by the deferential Roberts Court
in its presidential immunity ruling and twice validated by
the Senate in its impeachment trial acquittals. It is reasonable
to believe that President Nixon would never have been impeached
let alone forced to resign if he had had a Court as supportive
as the Roberts Court. Where the Constitution shows itself
to be the guardian of a conservative elite is in the fact
that Trump lost the 2016 election by three million votes but
became the elected president based on the arcane logic of
the Electoral College, which gives small Red states, like
Wyoming and the Dakotas, greater electoral power per capita
than the large Blue states of California and New York.
While the author addresses the threat to representative government
posed by the Supreme Court, he fails to give sufficient space
to the dangers of presidentialism other than a brief comparison
of parliamentary and presidential systems of government, where
a parliamentary system provides a modicum of responsible government
with the no confidence vote that can bring down a prime minister
and their government. This is a missed opportunity to explore
the issues around the expansion of presidential power in America
since the early 20th century. The strong, centralized executive
branch is a double-edged sword. Unchecked presidential power
might be desirable if the president is one’s choice,
but it could lead to permanent rule by one party, which would
effectively disenfranchise a large part of the electorate
and lead to authoritarian government, and having one party
in power would not be desirable, notwithstanding Trump’s
fantasy of replicating Xi Jinping’s or Vladimir Putin’s
forever presidencies.
A second area where the author’s analysis could be extended
is in the de-politicization of the Constitution. It’s
a fair argument that debates about the Constitution nowadays
tend to be conducted in the language of the courts and that
a more democratic and representative management of the Constitution
would re-engage the public in the discussion of constitutional
issues in terms not strictly of the law but in terms of politics
and what ought to be, e.g., based on the circumstances of
the 21st century and not the 18th century. A similar argument
could be made with respect to economics, viz. that economic
debates need not be restricted to economists and businessmen
but should respect the views and values held by the public.
To what extent does the increased specialization of knowledge
and practice of a complex post-industrial society of more
than 300 million that is interconnected with a community of
nations justify a technocracy? That would be a fundamental
question for constitutional consideration.
A third area of examination that would better illustrate how
profoundly democracy in America has been captured by elites
is the connection between money and political influence. On
August 8th, Bernie Sanders, Senator from Vermont, responding
to a New York Times reporter’s question about his reaction
to President Biden's decision to withdraw from the reelection
campaign, sums up the problem thusly,
I was really quite
amazed that every other day The New York Times
was telling us what wealthy donors wanted. And I think the
New York Times helped, I think, the American people understand
who controls politics in America.
Indeed, the quadrennial presidential elections and even the
biennial congressional elections could easily be mistaken
for auctions.
* * * * * *
At more than 800 pages, the book is long, but since the writing
is not particularly dense—certainly not as much so a
standard history textbook or a constitutional law book—it
is a relatively comfortable read. It is well researched, and
a quick browse through the Acknowledgements will show that
numerous individuals contributed to the project. One such
reference that I found valuable was the article, ‘The
Perils of Presidentialism’ by Juan Linz, published in
the Journal of Democracy in 1990. The book will be
of special interest for those who have some knowledge of American
history, as it introduces an important cast of characters
and ideas that have mostly disappeared from contemporary American
discourse. Though they are not on the winning side of history,
the portraits and quotes of these individuals still have relevance
and resonance in contemporary America, and in the author’s
view, will hopefully find a resurgence of interest as the
debate over America’s Constitution, which has been and
will continue to be fractious, carries on into its third centennial.
Many non-Americans share this hope as the rest of the world
cannot help but take notice when the elephant in the room
convulses.
