Aziz Rana Interviewed on DSA's 'Class'

Rana spoke about The Constitutional Bind on DSA's National Political Education Committee podcast. Part one of two.

Originally posted on the Class website.

In this episode, we talk with Aziz Rana about the struggle for democracy and America’s Constitutional Bind. Aziz Rana is a professor of law at Boston College.  He’s the author of two books, The Two Faces of American Freedom, published in 2014, and The Constitutional Bind, published in April of this year.  In 2022, Aziz spoke at the Socialism Conference in Chicago about the need for a democratic constitution. That recording is available in the class episode archive.  Aziz recently published an op-ed in the New York Times titled “The Constitution won’t save us from Trump,” which drew a response from Nacy Pelosi. 

In the first part of the interview, Aziz talks about the inspiration for his book and lays out his primary arguments: America finds itself in a constitutional bind.  We cling to an undemocratic document that does us great harm.  It didn’t always used to be this way.  Our “Constitutional creed” developed over time, starting around the turn of the 20th century, in the context of American imperial expansion.  

Rana explains the importance of universal and equal rights to the Socialist Party of America, which exemplified pre-Cold War democratic agitation.  He compares the Socialist Party of America’s (SPA) political agitation and the Black Panther Party’s Revolution Peoples Constitutional Convention in 1970 to determine how the Cold War shaped constitutional critique - for better and worse.  A few subaltern voices, such as W.E.B. Du Bois and James Boggs, connected pre-Cold War critiques with those of the ‘60s and ‘70s.  Rana also identified many interesting points regarding democracy and the Constitution in the DSA’s 2021 political system.  At the end of Part One, Rana discusses the Bill of Rights and how socialists such as Crystal Eastman fought for civil liberties without supporting the Constitution. 

Transcript:

Aziz: Thanks so much for having me on the show. I really appreciate it.

Luke: Yeah, absolutely. So, if you could go ahead and tell us about your latest book, The Constitutional Bind. Why did you write it?

Aziz: So the book was really a product of experiencing what felt like this kind of remarkably divided moment where if you just read the opinion page of mainstream newspapers, New York Times, The Washington Post, there's a kind of growing sense that the American constitutional system doesn't work and is in fact deeply undemocratic.

And this is a view that frankly isn't just a view among socialists or the left broadly, but is increasingly a kind of center-left and liberal position. And I can just kind of rehearse some of the concerns with the constitutional system. That would be familiar, I think, to many of the folks listening. So, this is this idea that we imagine that any kind of democratic politics is supposed to be built on the principle of one person, one vote.

And yet, we have a system that's marked by a plethora of veto points that fractures really the only tool that most people have, which is the power of the vote in the political process. Not only does that but the power of the vote essentially gets undermined by all of these veto points across the federal and national levels.

That representation is built not around people, but it's built around states, around geography that produces an incredibly malapportioned system. Through the structure of the Senate's control over house districts and gerrymandering in the house, the Senate is up so that increasingly, 70 percent of the population is in just 15 of the states.

And then the role of state representation in affecting the presidency through the Electoral College. And then all of that in shaping who's on the Supreme Court, because of the fact that it's presidents that nominate justices to the federal bench, and then it's folks in the Senate that do the confirmation.

We've reached a place where our political institutions are wildly out of step with popular opinion. All of that is further underscored by the fact that in US constitutional politics, debates about rights and the basic institutions of state economy are funneled into this Supreme Court, whose representation is so fundamentally undemocratic in a way that means that it's very difficult for most people to actually influence constitutional politics.

We have an incredibly hard amendment system. By many accounts from social scientists, it's the hardest constitution in the world to amend. And so this funneling process produces a bottleneck in which essentially, like the far right, controls the basic terms about what even counts as a constitutional discussion.

And this has just become so evident that it's part of the popular debate. Yet at the same time, it's also the case that if you grew up in the United States at the end of the 20th century at the beginning of the 21st, your sense of the Constitution wouldn't be that, oh, we're just kind of trudging along and making do.

In political speeches, in education in schools, and in just national events and ceremonies, the framing was that the constitutional system was a near-ideal distillation of liberal democracy. It was also wrapped up with a series of other ideological commitments, which, in the book, I collectively refer to as creedal constitutionalism. This is the idea that the Constitution fulfills egalitarian principles always embedded in the country from the founding, from the Declaration of Independence. That it's also tied to anti totalitarian civil liberties commitments that protect an individual from state infringement. That's connected to an account of property rights.

That civil liberties are tied to economic liberties. And so that you have a basic bedrock commitment to market capitalism. And then that justifies or is linked to this restrained version of representative government with extensive checks and balances overseen by a nearly all-powerful court. And all of that supposedly explains why the U.S. is exceptional and enjoys a kind of leadership, global hegemonic role on the world stage. And that this kind of complex distillation of ideological commitments, none of which necessarily go together, I mean, there's no inherent reason why all of these commitments are bound together, have become what amounts to a kind of American national ideology.

It's like the heart of American liberal nationalism and of American national politics. What I wanted to do was to make sense of the disconnect between the reality of institutional breakdown and this culture of veneration and romance around an American project with the Constitution at the center and increasingly the argument that I came to was that this rise of a modern way of thinking about the U.S. Constitution is very closely tied to a second development that we almost never think of in relationship to the Constitution. And that's the fact that over the course of the 20th century, the U. S. moves from being a regional settler polity in North America to a global hegemonic state. The Constitution became a central language for the justification of American power overseas and the spread of various types of reforms at home, but reforms were pretty fundamentally limited.

And that, in a way, is what we're living with right now. In the breakdown, both of domestic institutional practices and really in the collapse of the way that the U. S. operates abroad, and we see this in the reverberating effects of U. S. policy, in Gaza, and also how that's implicating our own domestic politics, is that we've reached a kind of exhaustion with this specific way of thinking about American institutions and the American project, and it's time at this moment to really think again and think anew about what the democratic principles could mean, and also what more broadly, equal and effective freedom for everybody.

So, equal and effective freedom at home and self-determination abroad can be consistent. And so the other part of the book attempts to chart over the course of the 20th century within Black, Indigenous, Feminist, Socialist, Immigrant, and Third World politics, so not even just exclusively in the U.S., alternative constitutional visions, building an alternative archive of constitutional politics That can allow us to think seriously about what freedom and equal and effective freedom could amount to. 

Luke: There are two times in the book where you cite DSA's 2021 political platform. I was curious if you could explain why you cited DSA's political platform.

Aziz: Yeah, so, I think there are probably a few different reasons why I mention it in the book, both in the introduction and then again in the conclusion. So the first is, I just think it's a really excellent distillation. Of the sort of stakes in terms of thinking in a comprehensive way about the potential for constitutional change so that it covers, reforms that would address many of those democratic flaws that I articulated upfront from, you know, addressing the issue of the Senate to, you know, altering the nature of the amendment process to broadly expanding who has the right to vote, including moving toward non-citizen voting, to addressing the colonial infrastructure in the country, including thinking seriously about ending the colonial status of various territories, and on and on and on, changes, fundamental reforms to the bench.

So I think substantively, it's actually something that's incredibly appealing and worth us thinking about if we need to have a broader transformative conversation about meaningful change. But then, alongside that, there are a couple of other things. So the second thing that I think is actually really valuable about the platform is the way in which it engages with the long history of American socialism.

So that there's clear continuity between the platform and the 1912 platform of the Socialist Party of America, as well as the platforms of that Socialist Party across really its entire life as a powerful electoral force in the U. S., the first three to four decades of the 20th century. And it speaks to the fact that in the United States.

It's really been socialist politics that's been at the heart of thinking in a systematic way, root and branch way, about constitutional change. And one of the destructive effects, many destructive effects of the Cold War, is to essentially cleave that memory and to transform the question of democracy into a question that is supervised and spearheaded by Cold War liberals.

Where in point of fact, the kind of political compact they were constructing was in many ways a direct assault on basic democratic principles. The most significant democratic activists in the U. S. were oftentimes themselves socialists who were articulating the principle of mass mobilization and majority rule in the context of really intense forms of crackdown.

In fact, I'd also say some of the most significant defenders of civil liberty. The right to protest were themselves, again, socialists, where over the course of the Cold War, those projects of transformation were then re-inscribed as, you know, threats, forms of majority tyranny that were threats to the body politic when this is really a kind of upside down framing.

And then I'd say the third thing, the reason why I thought it was really worth highlighting, Is that just like those earlier traditions of American socialism, I think what the platform highlights is that you cannot separate what you might think of as the procedural questions, technical questions of institutional arrangements of the state from the bread and butter stuff that socialists have long fought for fundamental shifts to our system of capitalism and the construction of a properly democratic economy that operates for all. And that unless You alter the rules of the political game, which put a massive thumb on the scale on specific sides in the context of really fundamental conflicts over class and status in the country.

Unless you alter those rules of the game, you can't necessarily make the bread-and-butter shifts that you want, and the two are deeply interconnected. And in fact, early American socialists, just as you see with that DSA platform, did not distinguish between You know, what you might think of as political and economic demands in any kind of substantive way, they saw them both as united under a shared project of altering the existing balance of power between business and workers, between the haves and the have nots, and that all of these were different tools to transform who actually has the authority to make change and to assert their interests within a deeply hierarchical society and relatedly, there were ways of essentially shifting the institutional terrain so that it was harder for the existing status quo to reproduce itself. 

Luke: Talking about the SPA's 1912 program and also talking about the impact of the Cold War, and I will say, I think that's one of the most interesting parts of looking at this history is to see. How war and the Cold War impact these ideas. And I think 1 way that you present that is by showing us the SPA's1912 program. but then also the draft constitution that emerged from the Black Panther parties, the Revolutionary People's Constitutional Convention. which was in 1970. So these two, historically distinct attempts to reckon with or interact with the Constitution. and so curious, what were the differences, between the pre and post-Cold War discussions about the Constitution that were taking place?

Aziz: so in a sense, I think one of the aims of the book, and in some ways like this is maybe left a little bit implicit in the book is that I work through these. distinct constitutional visions. And I think part of the project for the present is figuring out how to, how to actually synthesize them so that they, they both, embody two sides of the same kind of political coin on behalf of truly transformative change.

So the SPA 1912 platform, when it comes to constitutional demands, is really infrastructural. They're about how to alter the institutions of the state so that they can be sites for the continuous negotiation and renegotiation of the basic terms of society by an organized mass political base. And so it's, it ends up focusing on things like simplifying the amendment process. It's abolishing the Senate, moving toward a system of parliamentary democracy and proportional representation, constraining some of the overreaching powers of the presidency that end up entrenching a national security state later on, and basic changes to the Supreme Court. Then, in the late 60s and early 70s, the Black Panther Party, as well as many of the activists around them, were thinking very seriously about a kind of separate but related question, which is what to do with the extent to which the United States has this history, they didn't use the term settler colonialism, but they're essentially thinking about the colonial infrastructure of the country, which is that it has a foundation where various kinds of rights and economic opportunities for some grounded in projects of native expropriation, native dispossession, and the use of coerced labor, you know, the classically enslaved black labor, but other forms of coarse labor as a condition of providing insiders various kinds of benefits and that this created deep sort of economic and political structures that shaped American life, and that even in the context of the end of segregation or the rise of U.S. power in a decolonizing world, had not been systematically addressed. And so they wanted a constitutional project that centered on the question of decolonization. And they had a variety of potential ideas that could shape that. And these are many ideas, frankly, that have been part and parcel of how decolonial politics has emerged globally in places like South Africa. 

And I should note, they were centrally inclusive. You had people like James Boggs, the great black labor activist and intellectual who argued that the nature of the mutually entangled nature of white and non-white life in the U S meant that you could not actually get black liberation without addressing the problems of all people in the country.

And so part of this decolonial agenda that they saw as something that could be instituted through a new constitution. So the Panthers had a revolutionary people's constitutional convention as a counter-constitution day event in 1970, which included things like land return for native peoples, ending the colonial status of Puerto Rico, Guam, and other territories, a systematic project of reparations, both for folks domestically, but also for people that have been subject globally in the context of that time of the war in Vietnam to various acts of US national security state violence, but then also, the broad provision of various kinds of universal goods, health, housing, education, and, you know, reproductive rights, as well as, nonexploitative job, a universal income, a fundamental demobilization of the carceral state and the social security, and excuse me, the, the, the national security state, and, you know, a series of other kinds of commitments decriminalizing the border, thinking of migration as a place for addressing various types of, colonial grievances and questions.

Again, this is an inclusive vision for imagining, imagining a fundamentally different society. Each of these perspectives caught something that, like the earlier or other perspectives, did not necessarily entail. and then also had limitations. So, for instance, I'd say that a big problem of the 1912 platform is that even though the SPA was one of the places that was hospitable to Black politics and Black equality at the time, so, Debs was a strong defender of Black equality, it was also still an institution that had numerous central figures that were themselves deeply racist, and then even those that were not, essentially treated the question of race as a sideshow and did not understand the centrality of racism and white supremacy to the reconstruction of capitalism in the US, what scholars today call racial capitalism, and it meant that they also oftentimes failed to appreciate that the most apparent form of authoritarianism in the United States in the early 20th century was the rampant white authoritarianism that shaped both post-reconstruction South. 

So, like the entrenchment of Jim Crow, but also American politics more generally, that meant that there was a real emphasis on putting front and center, even in these institutional changes, the kinds of alterations that would address, you know, bedrock concerns about the proliferation of a system of white authoritarianism. And it's why, in some ways like the hinge between that 1912 platform and the 1970 Revolutionary People's Constitutional Convention are the ideas of people like Du Bois in the 30s and 40s in Black Reconstruction, another book called Color and Democracy, or Harry Haywood, a black communist figure that was articulating arguments about the Black Belt Thesis, where they said not that black people should be independent, but that there was an underlying colonial predicament that shaped the limitations of any kind of democracy, quote-unquote, agenda in the U.S. 

And that in order to be able to achieve that basic institutional transformation, you had to kind of push beyond the 1912 Program toward an infrastructural vision that takes into account the centrality of white supremacy. So both Du Bois and Heywood, for instance, emphasized the importance of breaking up the states. Especially but not exclusively in what was called the Black Belt from Eastern Virginia to Eastern Texas, creating fundamentally different administrative units that actually tracked onto local democracy. So you could have majorities of poor white and black people exercise meaningful power, and that was the only way that you'd then be able to have basic changes, for instance, to land ownership, land tenure, to those who, in fact, enjoyed economic power in the country. 

So this was a kind of limitation, I think, of the 1912 platform and approach, which is it has this rich focus on institutions, but I think divorced from a serious engagement with the questions of colonialism and its instantiation through white authoritarian politics across the country. And then on the other side, by the time you get to 1970, you're at a moment in the country Where the socialist idea that Debs deeply believed in, which was plausible in the early 20th century, that you could actually have a multiracial, mass, working-class base that would be able to use elections to instantiate their platform.

That's largely dissipated because of the strictures of the Cold War, its repressive climate, and also some pretty profound cultural transformations and material transformations. To white working-class life, the fact that white workers in many ways, with the rise of the suburb, are much more like a middle class than some, than class conscious in the way that Debs would have, would have seen his constituents, you know, 50, 60 years previously.

And I think that dynamic means that when it comes to the Panther's constitutional imagination, there are very little of few concrete institutional arrangements about how to reconstruct. state practice, both of the variety that you get in the 1912 platform and of the variety that you get with black socialists in the pre-Cold War period.

And so you have, I think, some really interesting, expansive, centrally important ideas about decolonization. But is decolonization divorced from, let's say, that earlier democratic imagination? And what that, I think, highlights is, for me, part of the project of the present is attempting to bring these two sides together so that you can have a comprehensive agenda that engages with the colonial infrastructure in the country and also thinks in really serious ways about how to reconstruct state institutions. And the hope is that this is a moment. Maybe we'll talk about this a little later on. Where you can then build something like a genuinely transformative, multiracial, but class based majority around both sides of that agenda.

Luke: Yeah. As I mentioned, one of the really interesting parts of this history is to see These discussions about the Constitution. Taking place at different points in time, and then, you know, you know, Dubois, you know, James Boggs to see how there are some people who, if you will, kind of carry particular ideas in a subaltern manner to other people and periods. It's not exactly that clean, but as times are changing and most other people are changing with those times, there are some people who are almost serving as, conduits, if you will, to these other periods. 

Aziz: you're absolutely right. And like, I think James Boggs is a really central example here. So, Boggs and Grace Lee Boggs, both of them. Are figures who, even under the terms of a kind of repressive Cold War climate, maintain deep intellectual contacts with a pre-Cold War world, including links with, you know, towering figures like C. L. R. James and Boggs, and Grace Lee Boggs, so the Boggses, they write an amazing piece in 1966 called The City is the Black Man's Land, which in many ways is an effort to To update some of those ideas that Du Bois and Heywood had in the 30s for a different historical moment, and what they're thinking about is that the result of black migration to the north means that, the project of a kind of democratic agenda that deals both with Decolonization and also with, you know, effective one person, one vote probably isn't going to be built around reconstructing the South in the same way, but will be built instead around thinking of the city as a potential political unit of majority rule and so reimagining relationships of federalism.

So how can you actually get something like local democracy? By transforming how the city is connected to the national government and again addressing what Du Bois had called, you know, all the way back earlier in the 20th century, that national taboo, the taboo of not talking about the states and how the state as the central unit of American political government deforms everything so that there are these wonderful connective tissues across the 20th century, but then there are also, unfortunately, these profound breaks that are a function of how big social processes as well as just the coercive power of the Cold War state end up fracturing left memory and left identity. 

Luke: You mentioned civil rights and many of the socialists in the, at least in the early 20th century, being champions of. civil rights in various ways. Crystal Eastman is someone who features prominently in your book. And so, As we, of course, know, the Constitution contains a bill of rights. I was curious if you could speak to the Bill of Rights, civil rights, and how perhaps previous socialists, activists, and what you would have Grappled with a question or a concern that I hear a lot today, which is if we critique the Constitution, aren't we jeopardizing those rights? Aren't we throwing out the Bill of Rights? 

Aziz: Yeah, so I think Crystal Eastman's a really good person to turn to in terms of her own thinking about this. So Crystal Eastman was a Tremendous early 20th-century activist, lawyer, and socialist who was one of the authors of the initial authors of the Equal Rights Amendment, was also one of the founders of what would become the ACLU, and had a really powerful commitment to holding together a set of agendas. An anti-racist politics. An anti-imperialist, anti-war politics during World War I, under conditions of tremendous personal risk. And then also a commitment to feminism, linking feminism and socialism together with constitutional transformation. So for somebody like Eastman, and I think this is the way that they, they kind of combine this, that there are absolutely things in the text of the Constitution.

And for her, at a time of protests, both labor and anti war protests, she was thinking about the First Amendment and protections of dissent that might exist in the Constitution that are worth defending. but they're worth defending because they're effectively universal principles. Like any constitutional system that can facilitate a path toward economic and political liberation will have these principles embedded in them.

And so she was willing to defend those principles, but not out of a kind of jingoistic national patriotism, because one of the things that oftentimes happens is the reframing of the fact that there might be this language as then saying, well, there's something unique, special about this system that has to be defended.

And then the other thing that she and others would do, and you see this actually even with the IWW, is that to say, well, there are these principles that exist within the system, and that when you have protesters or activists or various marginalized communities that face really profound forms of threat and violence, You don't just, like, abandon them. You might have to work within the context of the courts. Like, you provide kind of defensive efforts to protect people under the existing terms of the institutions. And that effort can produce You know, real reprieves from violence can actually materially improve the conditions of people that you're defending, that you're trying to mobilize.

And even if that doesn't happen, what that process also exposes is something that's fundamentally the case, which is that the existing terms of how the constitutional system and state are set up, Mean that that, that like actually making good on these commitments cannot be done through, without like fundamental changes.

In other words the very folks that claim to abide by constitutionalism to be the embodiments of law are themselves operating in ways that are profoundly lawless. And that to constrain that will require basic changes to the Constitution. And so you're operating at these multiple levels. where you can hold on to principles that exist but say, well, actually, if you're committed to these principles, it's very likely you're going to have to have pretty fundamental changes.

You're going to have to have a very different type of constitutional horizon. At the same time, though, that doesn't mean, just because you have a different constitutional horizon, that you just abandon engagement with the institutions of the state because things like the courts are really powerful on the ground and have very profound material value impacts for people. And so you're kind of continuously operating at these, these different levels. The main thing that I think is a suggestion in the present is the idea that you might want a different constitutional system, which doesn't mean that everything, like all the language about equality or various kinds of rights provisions, needs to be rejected.

It's that if you actually are truly committed to that language, you have to pursue the kind of transformative change that you've got. That, that folks are calling for. These two things are not, in fact, oppositional commitments. 

Luke: Yeah, I think that's a very powerful point, and it seems to pop up in different places, this idea of, okay, if you are committed to these particular values or these particular ideas, you can't entrust them, if you will, to this particular political structure. You can't just rely on unelected people. the malapportioned Senate, and so on and so forth, and the Supreme Court to protect those or to make those real. That's something that has to be done through a democratic process and kind of only through democracy can those things be substantiated.

Aziz: Absolutely, and that, that, in point of fact, this is another argument that Eastman made, that the very folks that claim to be champions of the Constitution operating through the existing institutions are the ones that are the primary threats to these basic rights and safeguards. And so, just out of your commitment to those rights and safeguards requires having a very different type of constitutional vision and also re-inscribing who gets to claim the mantle of being lawful versus who gets to claim the mantle of who gets to impose arguments about others being lawless.

So this is an argument that folks in the IWW and the Socialist Party made repeatedly, which is that state and business actors would routinely present their peaceful protest as unlawful or as a threat to the constitutional state, when in point of fact, they were the ones that were arguing for basic rights and protections, and it was instead the champions of the constitutional state that were imposing various kinds of discretionary violence. 

Luke: Thanks to our guests, to the folks doing the work for the podcast Behind the Scenes, our editors and producer, and to everyone for tuning in. Please join DSA and learn more about the National Political Education Committee by checking us out online. Until next time, take care.