Escaping America’s Constitutional Bind: A Review of Aziz Rana’s “The Constitutional Bind”
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Escaping America’s Constitutional Bind: A Review of Aziz Rana’s “The Constitutional Bind”
Articles

Escaping America’s Constitutional Bind: A Review of Aziz Rana’s “The Constitutional Bind”

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Luke Pickrell reviews Aziz Rana’s recent book, “The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them.”

Anton Refregier, “Untitled.”

Introduction

At a private gathering last year, Joe Biden warned, “If the Democrats don’t own the presidency, we’re going to find ourselves in the position where democracy is…literally at stake.”1 At a later event dedicated to the memory of John McCain, Biden explained that “history has brought us to a new time of testing” and that democracy means adherence to the Constitution and its system of separation of powers and checks and balances.2 During this year’s State of the Union address, it took Biden all of two minutes to declare, “Not since President Lincoln and the Civil War have freedom and democracy been under assault at home as they are today.”3 Finally, at a ceremony in June marking the 80th anniversary of D-Day, the President intoned, “The struggle between a dictatorship and freedom is unending” and “Democracy is never guaranteed — every generation must preserve it, defend it, and fight for it. That’s the test of the ages.”4

Most Americans locate something called “democracy” in our ancient Constitution — as some combination of checks and balances, semi-universal suffrage, the Bill of Rights, a supposedly impartial Supreme Court, and the phrase, “We the people.” The Constitution is said to make our country unique. Good things happen when people respect and follow the Constitution, and things go poorly when people don’t. However, this narrative is starting to fall apart. The increasingly obvious retort to Biden and the Democratic Party’s claim of defending democracy is, “What democracy?” As The American Prospect editor David Dayen asks,

Exactly what part of democracy are we trying to save? Is it our democratic legislature, gerrymandered and malapportioned beyond recognition, with supermajority thresholds that deny rule even by that corrupted majority? Is it our democratic presidency, which Trump legally took over after losing the popular vote in 2016, and George W. Bush in the same fashion 16 years earlier? Is it our democratic judiciary, morphed into a super-legislature and habitually twisting the Constitution to advantage those with power, money, and influence?… Where can we find this democracy we need to fight to preserve?5

With his latest book, The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them,6 Aziz Rana continues unraveling our undemocratic constitutional regime. The Constitutional Bind seeks to understand why a period of constitutional critique before the First World War morphed into a seemingly impregnable ideology of constitutional veneration that reached maturity by the end of the 1980s. Celebrants of the Constitution’s first centennial in 1887, Rana persuasively argues, would not have recognized the “creedal constitutionalism”7 that developed during the Cold War. The book also examines how various working-class and political left segments critiqued and eventually embraced the Constitution.

The Constitutional Bind is akin to Michael Kammen’s A Machine That Would Go of Itself,8 the only book before Rana’s to attempt to document a widespread understanding of the Constitution. In his preface, Kammen expressed surprise and concern that “no one has attempted to describe the place of the Constitution in the public consciousness and symbolic life of the American people.”9 Written in the mid-1980s, when mainstream critiques of the Constitution were essentially nonexistent, A Machine argued that the relationship between Americans and their Constitution is far more complicated than commonly believed. Kammen also argued that the basic pattern of American constitutionalism is “conflict within consensus,”10 in which debates are waged over the results of America’s political structure rather than the political structure itself. 

Like Kammen, Rana explores how non-experts have thought about and interacted with the Constitution. Also like Kammen, Rana wants to take the Constitution off its imaginary pedestal and place it where it belongs in the messy world of social and political strife. Both authors aim to make the Constitution comprehensible to non-professionals and correct the myth of an uninterrupted infatuation with the Framer’s creation. 

However, A Machine That Would Go of Itself gives the impression of being written by someone who thought the Constitution was fundamentally sound, save for a few elite-initiated adjustments. Rana, on the other hand, is far more skeptical. Rather than the average Joes presented in A Machine, the subjects of Rana’s work are Marxists, Maoists, Civil Rights activists, labor leaders, and other political iconoclasts and outcasts who struggled to change America’s convoluted political system and make the country into the democratic republic it has never been. The Constitutional Bind is a “form of social criticism, in which history is presented in service of today’s problems as well as tomorrow’s latent possibilities.”11

Before diving into the content of Rana’s book, it’s important to note that The Constitutional Bind is very much a product of a particular time and place. As far as I know, books like The Constitutional Bind, Tyranny of the Minority, Minority Rule, We the Elites, and The Frozen Republic are not being published in countries with unicameral legislatures and universal and equal suffrage, such as Finland, Sweden, and Denmark.12 In these democratic countries, where a majority opinion can be turned into law, the focus is rightly on the outcome of the political process rather than the structure of the process itself. On the other hand, in the United States, it is now common to find highly reviewed books and articles lamenting how the political system obstructs the will of the majority and questioning our culture of constitutional veneration. 

Resistance

Criticism of the Constitution peaked in the lead-up to World War One, as evidenced most clearly by the activity of the Socialist Party of America (SPA). These turn-of-the-century socialists — still grounded in the democratic republicanism of Marxism and the homegrown democratic republicanism of Tom Paine and later Radical Republicans like Thaddeus Stevens — were among the most vociferous critics of the Constitution. SPA co-founder and Congressman from Wisconsin Victor Berger denounced the Senate (created by Article I, Section 1 of the Constitution) as “an obstructive and useless body, a menace to the liberties of the people, and an obstacle to social growth.”13 The only solution, Berger declared, was to place all legislative power in the House and strip the Executive and Judicial branches of their veto powers. Five-time SPA candidate for President Eugene Debs — whose combination of free speech advocacy and constitutional critique, writes Rana, represented the SPA’s “ideological center of gravity”14 — kept up the heat, exclaiming, 

There is not the slightest doubt that the Constitution established the rule of property; that it was imposed upon the people by the minority ruling class of a century and a quarter ago for the express purpose of keeping the propertyless majority in slavish subjection, while at the same time assuring them that under its benign provisions, the people were to be free to govern themselves.15

Later, Debs called Gustavus Myers’s History of the Supreme Court “beyond a doubt the book of the year for Socialists.”16 In his book, Myers, a journalist, historian, and one-time member of the SPA, concluded that

[a] dominant class must have some supreme institution through which it can express its consecutive demands and enforce its will, whether the insulation be a king, a Parliament, a Congress, a Court or an army. In the United States, the one all-potent institution automatically responding to these demands and enforcing them has been the Supreme Court.17

In 1914, SPA member and soon-to-be presidential candidate Allan Benson wrote a comprehensive dissection of America’s undemocratic political system called Our Dishonest Constitution.18 The SPA’s newspaper, Appeal to Reason, regularly ran constitutional polemics, such as “Tricked in the Constitution,” which declared, “Democracy — government by the people or directly responsible to them — was not the object which the Framers had in view.”19 For two decades, the SPA’s national party platform consistently called for the abolition of the Senate, the direct election of federal judges, and convening a second constitutional convention. 

Many socialists, including Benson and Crystal Eastman (co-founder of the parent organization of the ACLU), defended civil rights as innate human rights endangered by the Constitution’s denial of universal and equal suffrage. Eastman and her collaborators strove to “uproot the existing mode of constitutional decision-making” and ensure “meaningful control by working people over the constitutional system as a whole.”20 As Benson explained, “‘[t]he rights of citizens would be safeguarded’ only if constitutional power was ‘vested in the people themselves,’ since ‘no flimsy words in a constitution ever safeguarded human rights.’”21 

Rana reiterated the connection between democracy and robust civil rights during a recent interview.22 The Bill of Rights is based on universal rights that exist for all people in all places, regardless of what the Constitution says. The Bill of Rights uses the language of universal rights, but the Constitution does not speak those rights into existence. The Constitution’s various minoritarian features endanger universal rights by placing them in the control of unelected judges, a powerful Executive, and a malapportioned and gerrymandered legislature. The Constitution is the greatest threat to individual rights because it denies universal and equal suffrage.

Critiques of the Constitution by socialists and labor unionists continued during the 1920s and 30s — the one-time SPA member Chandler Owen and labor organizer A. Philip Randolph used The Messenger to criticize constitution worship as reactionary, pro-war, and anti-labor. The two men, explains Rana, also denounced the “willingness of more moderate Black periodicals to accede to the constitutional celebrations of the times. Those periodicals, wary of being labeled unpatriotic, would repeat bromides about the wisdom of the founders and even support Constitution Day events organized by the likes of the National Security League.”23 Meanwhile, the Black communist activist Harry Haywood attacked gerrymandering and demanded democratic changes to the “governmental and administrative structure” of the South. A  “Black democratic majoritarianism,” Haywood wrote, could only come about through a system of proportional representation.24

Meanwhile, the SPA’s 1928 party platform proposed a “modernized” constitution with direct elections for the Executive, proportional representation in Congress, and the elimination of judicial review.25 The newly-formed Communist Party, on the other hand, while identifying the malapportioned Senate and the Constitution’s various minoritarian checks, named “democracy” one of the three “chief methods of capitalist dictatorship.”26 Henceforth, communists largely abandoned the idea of a democratic constitution based on universal and equal suffrage as the “first” and “fundamental condition” for the “political liberation of the proletariat.”27

Acceptance

By the time the United States declared war on Japan, the country had been “swept up in one of the most extensive mass celebrations in national history, far greater than any previous constitutional anniversary.”28 Criticism of the Supreme Court by New Deal supporters ceased for fear that condemnation would provide an ideological opening for dissident voices, foreign or domestic. Labor unions began honoring the Bill of Rights, especially the First Amendment. In 1941, Roosevelt declared December 15 “Bill of Rights Day,” and almost everyone closed ranks. Soon, “fully one-quarter of the nation’s population…belonged to organizations that ‘actively supported’ the celebrations.” Absurd celebrations ensued, including “a simultaneous reading of the Bill of Rights in all 83 [Chicago] neighborhoods.”29 Even some Black Americans were incorporated into the nationwide celebrations of constitutional reverence to prove that racism belonged to the Nazis, not the United States. Several pundits went as far as declaring that the United States was “committed to equality from the founding.”30

Comparing the Soviets to the Nazis distracted from the fact that the United States was not truly a democracy. It seemed that Americans had to choose between totalitarianism and a form of constitutional republicanism called democracy. Even previous critics of the Constitution, like Charles Beard and A. Philip Randolph, changed their minds. The ACLU and Communist Party wrapped themselves in “flag and text.”31 America had significant problems, the story went, but constitutional critiques were too dangerous during periods of external instability. Many swallowed the idea that checks and balances and the Supreme Court’s use of judicial review were the only things holding back the rise of an indigenous Stalin or Hitler. “Issues of fundamental reform,” explains Rana, were steadily replaced by “a consolidating faith that the [Constitution] was central to an anti-totalitarian American way of life, which culturally and politically safeguarded citizens from dictatorship.”32 Notably absent in toeing the line was W.E.B Du Bois, who criticized the “rotten-borough system” created by the malapportioned Senate in his 1945 work, Color and Democracy,33 just as Martin Luther King Jr. would two decades later.34

The United States came out of the war relatively unscathed, unlike the rest of the world. Britain, “clearly bled white by two world wars” and unable to bail out the Greek economy or fund the Turkish army, quickly “handed the job of world leadership with all its burdens and all its glory to the United States.”35 America’s success in the war was attributed to the Constitution, including its Bill of Rights and magnificent system of checks and balances. As a result, the United States was well on its way to Cold War nationalism and a strengthening of reverence for the Constitution. Hence, abolishing or significantly changing it became “unthinkable”36 by the early 1960s.

Survival

Critiques of the Constitution and skepticism regarding the reality of American “democracy” were pushed underground during the Cold War. As the United States cemented itself as the global hegemon, it was up to a few dissident voices to keep the dream of democracy alive. One of those voices belonged to the great dissident sociologist C. Wright Mills, who described in 1956 the ubiquity and domination of the “military event” in society. Americans, Mills explained,

[H]ear that the Congress has again abdicated to a handful of men’s decisions clearly related to the issue of war or peace. They know that the bomb was dropped over Japan in the name of the United States of America, although they were at no time consulted about the matter. They feel that they live in a time of big decisions; they know that they are not making any.37

Another critical voice belonged to one-time Students for Democratic Society (SDS) president Tom Hayden, who wrote his Master’s thesis on Mills and made an ambiguous statement about the Constitution’s denial of democracy in the first draft of SDS’s Port Huron Statement.38

The last great political uprising in the United States occurred during the 1950s and 60s when struggles were waged for universal and equal rights. For the most part, these struggles avoided the question of the Constitution. As Rana explains, 

In the 1950s, liberal Black and white voices presented the struggle for Black freedom as one of fulfilling principles embedded in the existing federal Constitution, especially those of equal protection associated with Reconstruction-era amendments. The project emphasized litigation and focused on redeeming an egalitarian national promise by unlocking the Constitution’s textual language.39

However, after the signing of the Civil Rights Act and the ongoing suffering of Black Americans, Martin Luther King publicly lamented the American legal system’s limits. In Where Do We Go From Here: Chaos Or Community?, written a year before his murder, King concluded that the Civil Rights Movement had “left the realm of constitutional rights” and entered “the area of human rights.”40 Months later, James Earl Ray pulled the trigger, and King was dead before he could develop his critique. Rana’s is one of the few books (if not the only one) highlighting King’s criticism of the Constitution.

Two years after King’s assassination, the Black Panthers’ People’s Convention marked what Rana calls “the country’s last culturally resonant moment of mass constitutional rejectionism.”41 While the draft constitution that emerged from the convention took up many new and innovative demands, including ones centered around the family and children’s rights, as well as control and use of the military and police,42 it lacked the structural critique found in the SPA’s program’s denunciation of the minoritarian Senate, Supreme Court, and Electoral College. Ultimately, the People’s Convention exemplified the shift toward a rights-based understanding of the Constitution still present today. 

Revival

Decades after the Panthers’ convention, the Left is beginning to discuss the Constitution again. Rana references the political platform of the Democratic Socialists of America (DSA) and its constitutional analysis two times: as an exception to the otherwise “limited nature of the current reform conversation”43 and as a “conscious effort to update the 1912 SPA legal-political agenda for the present day.”44 DSA should consider Rana’s statements a challenge to live up to the SPA’s standards. There is a glaring need for precisely what he describes: a “conscious effort to update the 1912 SPA legal-political agenda for the present day.” So far, DSA has been reluctant to critique the Constitution consistently. This reluctance is seen in the contradictory nature of DSA’s 2021 political platform and the recent For Our Rights Committee (FORC) program,45 which grew out of last year’s Defend Democracy Through Political Independence convention resolution. The political platform calls for the abolition of the Senate and Electoral College. Yet, a few sections later, it calls on the Senate to pass the For the People Act through Congress. Meanwhile, the FORC program says its “ultimate goal is working-class majority rule, through a democratic constitution that establishes a political system with universal and equal working-class voting rights, proportional representation in a single federal legislature, and ending the role of money in politics.” Yet, its political demands include nothing more radical than expanding suffrage and eliminating the Senate filibuster. A revival of the SPA’s 1912 program it is not. 

However, last year, Young Democratic Socialists of America (YDSA) passed a convention resolution that was far more consistent than either DSA’s or FORC’s program. Titled “Winning the Battle For Democracy,” the resolution raised the demand for “a new and radically democratic constitution, drafted by an assembly of the people elected by direct, universal and equal suffrage for all adult residents with proportional representation of political parties, and rooted not in the legitimacy of dead generations of slave-owners and capitalists, but that of a majority consensus of the working masses.”46 YDSA urged all DSA members in and out of elected office to take “concrete actions to advance the struggle for a democratic republic such as agitating against undemocratic Judicial Review, fighting for proportional representation, delegitimizing the anti-democratic Senate, and advancing the long-term demand for a new democratic Constitution.”47

Necessity

At this point, the main struggles are intellectual and ideological. DSA leaders must be convinced that the battle to democratize the political system is the leading edge of the class struggle. No DSA elected official will denounce the Senate like Victor Berger without a significant mass movement for democracy. Fortunately, Rana’s book proves that discussion about the Constitution will develop regardless of what happens inside DSA. The question is not whether the debate about democracy will catch up with the DSA but whether the DSA will catch up with the discussion about democracy. 

The undemocratic Constitution poses a significant challenge, but like anything crafted by human hands, it has a complex history. Previous generations of Americans fought for a democratic constitution, and comprehending the history of those struggles – both positive and negative–will benefit those continuing the work. Taken individually, all of the constitutional critiques in the world will only amount to “firing a peashooter at a battleship.”48 Ultimately, we need a political party, like the SPA in its heyday, that will center the demand for a democratic constitution and stand at the vanguard of the struggle for democracy. Consolidating all the diverse and scattered criticisms into one powerful force is essential.

Americans’ relationship to the Constitution can be likened to the story of the blind men and the elephant, in which each person feels a different part of the elephant but fails to grasp how all the parts come together to form a cohesive whole. Unable to understand what’s going on, the men squabble amongst themselves. Once in a while, someone realizes it’s an elephant but decides to look the other way, maybe thinking the obstacle is too big or that it’s not an opportune time to raise the issue. As shown in Rana’s book, socialists in America did not always look the other way. The Constitutional Bind will be essential in developing the movement for democracy in the United States. The “test of the ages” is not to preserve the current minoritarian constitutional republic as suggested by Biden but to create a genuinely democratic political framework through which even more democracy can be extended into all sections of life.

 

 

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  1. Joe Biden, “Excerpts of Remakrs as Prepared for Delivery by Presdient Joe Biden on Democracy in Tempe, AZ.” The White House, September 28, 2023, https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/09/28/excerpts-of-remarks-as-prepared-for-delivery-by-president-joe-biden-on-democracy-in-tempe-az/#:~:text=%E2%80%9CNow%20today%20in%20Phoenix%2C%20Arizona,very%20character%20of%20our%20nation.%E2%80%9D.
  2. Joe Biden, “Remarks by President Biden Honoring the Legacy of Senator John McCain and the Work We Must Do Together to Strengthen Our Democracy.” The White House, September 28, 2023, https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/09/28/remarks-by-president-biden-honoring-the-legacy-of-senator-john-mccain-and-the-work-we-must-do-together-to-strengthen-our-democracy.
  3. Joe Biden, “State of the Union 2024.” The White House, March 7, 2024, https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/09/28/excerpts-of-remarks-as-prepared-for-delivery-by-president-joe-biden-on-democracy-in-tempe-az/#:~:text=%E2%80%9CNow%20today%20in%20Phoenix%2C%20Arizona,very%20character%20of%20our%20nation.%E2%80%9D.
  4. Kaia Hubbard, “Biden warns about “price of unchecked tyranny” as he vows to continue to help Ukraine.” CBS News, June 6, 2024, https://www.cbsnews.com/colorado/news/biden-normandy-d-day-ukraine-unchecked-tyranny/?intcid=CNR-01-0623.
  5. David Dayen, “America Is Not A Democracy.” The American Prospect, January 9, 2024, https://prospect.org/politics/2024-01-29-america-is-not-democracy/.
  6. Aziz Rana, The Constitution Bind: How Americans Came to Idolize a Document that Fails Them (Chicago: University of Chicago Press, 2024).
  7. Rana, Bind, 3.
  8. Michael Kammen, A Machine That Would Go By Itself: The Constitution in American Culture (New York: Routlidge, 1986).
  9. Kammen, Machine, 19.
  10. Ibid, 97.
  11. Rana, Bind, 32.
  12. Daniel Ziblatt and Steven Levitsky, Tyranny of the Minority (New York: Penguin Random House, 2023); Ari Berman, Minority Rule (New York, Farrar, Straus and Giroux, 2024); Daniel Lazare, The Frozen Republic. (Boston: Mariner Books, 1997).
  13. Andrew Glass, “House member seeks to abolish the Senate, April 27th, 1911,” Politico, April 27, 2024, https://www.politico.com/story/2016/04/house-member-seeks-to-abolish-the-senate-april-27-1911-222359.
  14. Rana, Bind, 130n13.
  15. Eugene Debs. “Why We Have Outgrown the U.S. Constitution,” Marxist.org, accessed April 28, 2024, https://jacobin.com/2021/02/eugene-debs-why-outgrown-constitution#:~:text=In%20a%201911%20article%2C%20legendary,fiery%20essay%20here%20in%20full.
  16. Rana, Bind, 128n5.
  17. Gustavus Myers, The History of the Supreme Court of the United States (Chicago: Charles H Kerr, 1912), 8.
  18. Rana, Bind, 131.
  19. “Tricked in the Constitution,” Marxist.org, accessed April 20, 2024, https://www.marxists.org/history/usa/pubs/appeal-to-reason/120302-appealtoreason-w848.pdf.
  20. Rana, Bind, 126-127.
  21. Ibid, 139.
  22. Donald Parkinson and Luke Pickrell, interview with Aziz Rana, Cosmopod, podcast audio, May 13, 2024, https://cosmonautmag.com/2024/05/escaping-the-constitutional-bind-with-aziz-rana/.
  23. Rana, Bind, 281.
  24. Ibid, 291-92.
  25. Kirk H. Porter, National Party Platforms: 1840-1956 (Urbana: University of Illinois Press, 1956), 293.
  26. Porter, Platforms, 311.
  27. Friedrich Engels, “Draft of a Communist Confession of Faith.” Marxist.org, June 9, 1847, https://www.marxists.org/archive/marx/works/1847/06/09.htm.
  28. Rana, Bind, 359.
  29. Ibid.
  30. Ibid.
  31. The CPUSA was “212 degrees Fahrenheit patriotic,” according to Norman Thomas; it later supported Japanese internment under FDR (Rana, Bind, 382); Rana, Bind, 297.
  32. Rana, Bind, 353.
  33. W.E.B. Du Bois, Color and Democracy: Colonies and Peace (New York: Harcourt, Brace and Company, 1945).
  34. Martin Luther King, Jr., Where Do We Go From Here: Chaos or Community? (Boston: Beacon Press, 1967), 14.
  35. David Halberstam, The Best and the Brightest (New York: Balentine Boons, 1972), 333.
  36. Rana, Bind, 389.
  37. C. Wright Mills, The Power Elite, 1st ed (England: Oxford Press, 1956), 9.
  38. James Miller, Democracy is in the Streets (New York: Simon and Schuster, 1987), 122.
  39. Aziz Rana, “Democracy Was a Decolonial Project,” Boston Review, May 20, 2024, https://www.bostonreview.net/articles/democracy-was-a-decolonial-project/.
  40. James M. Washington (ed.), Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr. (New York: Harper Collins, 1991), 58.
  41. Rana, Bind, 590.
  42. Ibid, 591.
  43. Ibid, 7n12.
  44. Ibid, 666n4.
  45. “FORC 2024 Program: In 2024, Workers Deserve More!,” accessed May 2, 2024, https://docs.google.com/document/u/1/d/e/2PACX-1vRXJPwDotin60oZBZeLdS-5_CxDUcdzU0sHNwr0KIXD53AqI3RoeVIoy6FQOXicrqxBWcDDinvDeBbe/pub.
  46. “R21: Winning the Battle For Democracy,” accessed April 28, 2024, https://drive.google.com/file/d/1eBmtHUha1G72fGmSpwLVWbOG750IzqsR/view.
  47. “R21.”
  48. Lazare, Frozen, 8.