Aziz Rana on the Supreme Court and Reactions to The Constitutional Bind
Lucas and I have had many interesting conversations since our first interview one year ago. This is an edited transcript from our discussion with Aziz Rana, recorded in July of last year. We discuss the then-recent decisions in Trump v. United States, reactions to The Constitutional Bind from the political center and left, the utility of holding a mock constituent assembly, the pitfalls of the Article V amending process, various responses (especially fear) to changing the Constitution, and why the left should care about political structures.
Luke: What do you make of the flurry of Supreme Court decisions that came out at the end of the term?
Aziz: Like many people, I was deeply concerned by the general drift of the decisions, both in terms of providing blanket immunity for Trump, undermining the foundational elements of the administrative state, and making it easier to criminalize being unhoused. You can go on and on with the implications of the decisions.
Something that has been understated is the extent to which the cases speak to how the modern Supreme Court is having an internal conversation within the political right. Because the amendment process is essentially broken, constitutional politics and decision-making are funneled into the Supreme Court. And this produces outcomes that are wildly out of step with what most of the public wants. Increasingly, it's produced outcomes that reaffirm the ideological positions of the right of the Republican Party.
The Supreme Court decides which cases it wants to hear. So it's not just that any cases end up before the Court. There's a reason why, when it comes to issues of race, the Court takes up cases around affirmative action. When it comes to questions of rights, the cases end up having to do with abortion or gun rights. The courts — the Supreme Court in particular, but large chunks of the federal judiciary as well — are in conversation with the conservative kind of legal establishment, where they're shaping which questions are being litigated. And then the courts are responding to those questions.
So it might be the case that Americans writ large have been having an intense conversation about the nature of race and racism, about the carceral state, about foundational issues of inequality. But what ends up before the Court are the specific matters that the right, and increasingly the far right, want litigated. The range of opinions that end up determining what judicial outcomes are — what they generate — are essentially disagreements within the conservative legal establishment. That's one of the reasons why framing somebody like Barrett as a moderate really misunderstands what’s happening. She — or in other cases, it might be Roberts — represents certain positions among conservatives. But the sum total of what's being debated, negotiated, and discussed is exclusively the range of issues of concern to the right.
The right wants to disestablish the regulatory infrastructure of the modern administrative state. What ends up being debated is how far they should go. The country is not just beholden to rule by judges, but also to the legal imagination of a set of conservative legal elites that are in conversation with each other.
Lucas: How is the Democratic Party interacting with the Constitution? Do you think the question of a democratic constitution can split the Democratic Party at some point?
Aziz: I think about Sotomayor's dissent in Trump v. United States, the case around presidential immunity. Sotomayor basically goes back to originalism and makes an argument that what the conservative justices were doing was abandoning the framers' vision of a constrained executive. This invocation of how the court or Trump are behaving in ways that are anti-constitutional or not consistent with appropriate veneration for the constitutional system can have certain types of symbolic or strategic value. They're using an originalist methodology to highlight how the conservative judges, while claiming to follow the law, are essentially abandoning principle in favor of the ideological outcomes that help their side.
The problem is that, more than just a strategic use, this kind of language reaffirms a type of faith in the founders. It reaffirms the idea that presidents haven't long enjoyed impunity. The U.S. has had a long history of state impunity and of an imperial presidency, especially when it comes to issues of national security. And so, invoking a kind of mythic faith in checks and balances cuts against an awareness of what the system is like.
On the one hand, I do think that there's a symbolic power to saying, “Hey, Supreme Court justices are behaving in ways that violate all of your presumptions about basic ethics.” We have a tool that exists within the constitutional system to hold people accountable if they're behaving in a corrupt way. We should use the tool even if it's not going anywhere. But it still has that double-edged quality because, depending on how you invoke impeachment, it can also reaffirm the sense that the system has these tools that we should double down on. I probably have a little bit more sympathy for the symbolic power of it in this context, just because it does seem like it's a way of highlighting the inappropriateness of the behavior of some of these judges and the extent to which they really are truly above the law. But I think it has that double-edged sword.
Pelosi's response to my own op-ed saying that the country needs pretty systematic forms of constitutional reform and change is basically taking on board the critique, but defanging it by saying, “Hey, we're trying to do this already,” without actually putting any kind of meaningful political resources or capital behind it.
The rhetoric of Democrats rightly emphasizes how Trump and those around Trump present profound threats to representative institutions. But at the same time, the entire behavior of Democratic Party politicians, and here I include Bernie Sanders and AOC, operates as if it's business as usual, that it's more important to figure out how best to get one's particular agenda or one's preferred candidate in office in a future election. People might say the right things, but none of the political energy and organizing that would be necessary to confront it is actually being marshaled.
Luke: Biden has criticized the Supreme Court, but then asks people to go out and vote. As if the Electoral College didn’t choose Trump the first time.
Aziz: When Biden was elected in 2020, there was a lot of energy around elements of the Democratic Party saying that we should think seriously about court reform. Biden responded by setting up a Supreme Court commission that was very much organized on apolitical and technocratic grounds. The truth of the matter is commissions like that are built to kick the can down the road, to more or less satiate folks who want change, but then ensure that change does not take place. That's basically what happened with this commission. Actually treating the moment seriously would require building political energy, a coalition, and a set of arguments for pretty dramatic forms of institutional change. Large swaths of the Democratic Party leadership just do not want to take the risk of what it means to push for change.
Lucas: Have there been changes in the last few years around how people approach the Constitution?
Aziz: I'd say that maybe what we're getting from the mainstream of the Democratic Party is indicative of a kind of response I've gotten from some liberal con-law professors and lawyers. They agree that all of these problems with the Constitution are real, but disagree about what to do. They think that the best way to get progressive change is to remain faithful to these institutions, invest in certain kinds of national narratives, and push forward for ameliorative change. It’s too risky to think about institutional change, they say.
Now, I totally understand that. I understand that the most significant and sustained efforts to have a constitutional convention right now are again coming from the far right, through organizations like the Convention of States. I understand all of these concerns, but that analysis misses how the successes of the mid-20th century that Constitution supports uphold were really contingent on that historical moment, on the particularities of a very strong labor movement that could bring supermajorities to the Democratic Party, the particularities of how World War II and the Cold War reshaped the political class and pushed center-left and center-right toward a willingness to engage in political agreement around reforms. There were all of these very contingent reasons that produced political reforms. Today, we live in a moment in which all of those contingent reasons no longer exist. Imagining that redoing what we did in the past is actually the most pragmatic way of approaching the present just doesn't hold.
Saying, “Well, it failed in the past, so therefore we shouldn't try doing it in the present,” misunderstands an assessment of risk. Yes, there's absolutely a risk involved in thinking seriously about large-scale structural change. But it doesn't feel any riskier than just hoping and doing nothing.
Lucas: What do you think about mock constitutional conventions?
Aziz: I've gotten interesting feedback from folks who have attended events or engaged with The Constitutional Bind. Some people ask why the left should care about the Constitution. The Constitution can feel like it's a sideshow, that it's not connected to what the left usually does.
The response is that all of the issues that you might care about in terms of actually affecting policy require dealing with the rules of the political process. Changes one might want to domestic policy, policies around race, the economy, foreign affairs, issues of war and peace — these are non-starters because of how the existing institutional infrastructure privileges a specific set of views.
The Constitution might not feel like it's a matter of everyday bread-and-butter politics. It feels like something separate. A challenge for anybody interested in constitutional reform is to organize the debates around American foreign policy or union organizing in a way that intersects deeply with the question of our own political system — to make those things feel like two sides of the same coin.
About a convention. My view is that this is not the right moment. Ultimately, to be able to hold a convention, especially a convention that doesn't abide by the undemocratic rules established through Article 5, you need to have a mobilized and transformative majority whose constituent power can then authorize the terms of the convention and shape its outcome. Pressing now for a convention in this context, without necessarily having the democratic power to pursue this, is to invite all sorts of potentially repressive outcomes.
The near successful examples of constitutional conventions and constitution writing elsewhere, even including Chile, came on the back of large-scale organizing in which union activists and students highlighted how the material demands that people had about everyday questions were tied to the type of constitutional system.
But that doesn't mean that you don't have a convention in mind as an ultimate goal, either within a platform agenda or in terms of thinking now about what a convention would look like. I think there's real value to it as an exercise. The left rightly critiques the political center for its focus on pragmatism, for the continued hope that the center will hold, or its nostalgic praying that we can go back in time to some better era.
Lucas: There’s a yearly socialism conference in Chicago. Maybe we could create a democratic constitution conference. A place where people could share ideas. I don’t think we should mirror our convention on the Article V rules.
Aziz: I agree. I would be wary of a mock convention that’s just replicating Article 5 and that is beholden to the existing constitutional imagination. And I would also be wary of imagining that the only way we can actually think of constitutional change is by replicating the terms of constitutional change established by the framers. If constitutional reform is seen as a technocratic adjustment around the margins that leaves intact that whole infrastructure, then it's part of the problem.
Also, we should think about internationalism and US imperialism. Constitutions are often for a particular nation-state. They can have embedded within them a normative nationalism that sees the boundaries of discussion as the national boundary. In the U.S., that is particularly a problem because of the extent to which American constitutionalism has been profoundly fused with a politics of empire. We should think about how the constitutional system fits within a larger structure of power that shapes both domestic and international relations.
Institution building is key. Strengthening the intermediate meeting-making institutions in the workplace and in neighborhoods. The stronger the unions are in the workplace, the more that you can build policies around even more transformative changes. But it also then reshapes the type of world in which people inhabit. It makes meaningful left ideas, including ideas about constitutional change. Institutional power outside of the existing forms of state and business can shape how people understand those existing forms of power and how to contest them.
In the U.S., you can make arguments about how much of American life is beholden to an isolated political class. Political outcomes are the product of our institutions, and these outcomes are wildly out of step with what the public wants because the institutions are a runaway train that either produce paralysis or enforce positions that have been widely repudiated.
We should be building up the critique, developing a clear account of how the institutions would be reformed, but then linking it to strengthen intermediate left institutions that have been systematically dismantled over the last half century.