Escaping the Constitutional Bind

Luke Pickrell discusses "The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them"

This is an edited version of an article published on May 3, 2024.

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At a private gathering in 2023, 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.” At a later event dedicated to the memory of John McCain and “the work we must do together to strengthen our democracy,” 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. During 2024’s State of the Union, it took Biden all of two minutes to declare that “Not since President Lincoln and the Civil War have freedom and democracy been under assault at home as they are today.”

Americans tend to locate something called “democracy” in our ancient Constitution, as some combination of checks and balances, an impartial Supreme Court, and the phrase, “We the people.” The Constitution makes the U.S. special. Things go well when people respect and follow the Constitution’s rules, and they go badly when people don’t. Biden and the Democrats are relying on this narrative to win reelection in the November 2024 election. Only Biden and the Democrats will respect the Constitution, maintain the division of powers between the branches of government, and, as a result, ensure nothing less than the continued orbit of the earth around the sun. Only the Constitution can stop Trump.

However, this narrative is starting to fall apart. In 2020, Daniel Lazare wrote that the Constitution was “hiding in plain sight.” Four years later, the Constitution’s hiding spot is much less secure.

In The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them, Aziz Rana does his part to unravel our constitutional regime a little faster. The Constitutional Bind is like a leftist version of Michael Kammen’s A Machine That Would Go of Itself. Like Kammen, whose book is considered a classic in legal studies, Rana explores how non-experts have thought about and interacted with the Constitution. Like Kammen, Rana wants to take the Constitution off its imaginary pedestal and place it where it belongs: the messy world of social and political strife.

However, Kammen’s book gives the impression of being written by someone who thought the Constitution was fundamentally sound—save, perhaps, for a few elite-initiated adjustments. Rana is far more skeptical. He aims to expand the readers’ knowledge to influence the change of the Constitution. The Constitution Bind is written from the perspective of Marxists, Maoists, civil rights leaders, labor activists, and iconoclasts who struggled to understand and transform America’s uniquely convoluted political system.

Resistance

Contrary to the standard narrative, Americans haven’t always held the Constitution in high regard. The first centennial celebration in 1887 was a relatively subdued affair. The Founding Fathers, whose creation was intended to maintain the Union and stabilize society, seemed far less wise after the Civil War killed two percent of the entire population (over 6 million people today). The Gilded Age was in full bloom, industrialism was spreading, and inequality was rampant. The closing of the frontier was the cherry on top, and many wondered how the United States could survive.

Rana explains that criticism of the Constitution was loudest in the lead-up to World War I. The Socialist Party of America (SPA), still grounded in the democratic republicanism of Tom Paine, the Radical Republicans, and Marx, was among the most vociferous critics of the Constitution.

Eugene Debs—whose combination of free speech advocacy and constitutional critique represented the SPA’s “ideological center of gravity”—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.”

Later, Debs called Gustavus Myers’s History of the Supreme Court, “beyond a doubt the book of the year for Socialists.” 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 institution 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.”

In 1914, SPA member and soon-to-be presidential candidate Allan Benson wrote Our Dishonest Constitution, a comprehensive dissection of America’s undemocratic political system. The SPA’s newspaper, Appeal to Reason, regularly ran constitutional polemics, such as “Tricked in the Constitution,” published in the March 2, 1912 edition. “Democracy—government by the people or directly responsible to them—was not the object which the Framers had in view,” the article explained. The SPA’s national party platforms regularly 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.” As Benson explained, “‘The 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.’”

Acceptance

However, the demand for a democratic constitution struggled to survive the jingoism and hysteria of war. Exceptions included Chandler Owen and A. Philip Randolph, who used their newspaper, The Messenger (1917-1928), to criticize constitution worship as reactionary, pro-war, and anti-labor. The two men, explains Rana, 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.”

Still, by the early 1940s, many former critics of the Constitution had changed their tune. “Issues of fundamental reform” 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.” World War II dramatically shrank the parameters of political imagination. Americans, the dominant narrative said, had three choices: fascism, communism, or a form of constitutional republicanism that went by the name of democracy. Many previous constitutional skeptics, including Charles Beard and A. Philip Randolph, had a change of heart, and the ACLU and Communist Party “wrapped [themselves] in flag and text.”

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. Notable exceptions included W.E.B Du Bois (criticized by Owen and Randolph for his pro-war stance in 1916), who dissected the “rotten-borough system” created by the malapportioned Senate in his 1945 work, Color and Democracy.

America’s “constitutional creed” solidified during the Cold War within the general population. The Left remained committed to democracy but had only a tenuous connection to its predecessors’ democratic republican values. Tom Hayden made an ambiguous statement about the Constitution’s denial of democracy in the first draft of Students for a Democratic Society’s (SDS) Port Huron Statement. A decade earlier, Hayden’s political mentor, C. Wright Mills, described the ubiquity and domination of the “military event.” Mills observed that Americans “hear that the Congress has again abdicated to a handful of men 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.”

During the civil rights movement, Martin Luther King lamented the limits of the American legal system. In Where Do We Go From Here: Chaos Or Community?, he concluded that his struggle had “left the realm of constitutional rights” and entered “the area of human rights.” Rana’s is one of the few books that mentions King’s criticism of the Constitution.

King was murdered before he could expand on his statement. Two years later, the Black Panthers’ People’s Convention marked “the country’s last culturally resonant moment of mass constitutional rejectionism.” However, the convention made the shift from a structural critique to a rights-based critique apparent. 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, it lacked the pre-Cold War analysis of the bicameral legislature, the Senate, and the Electoral College.

Revival

Some 50 years 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. First, as an exception to the otherwise “limited nature of the current reform conversation.” While most discussions are “largely centered on particular, if valuable, procedural adjustments,” DSA calls for the abolition of the Senate and Electoral College and a second constitutional convention. Second, Rana calls the platform a “conscious effort to update the 1912 SPA legal-political agenda for the present day.”

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.”

Tom Paine wrote that “when it shall be said in any country in the world, my poor are happy; neither ignorance nor distress is to be found among them; my jails are empty of prisoners, my streets of beggars; the aged are not in want, the taxes are not oppressive; the rational world is my friend, because I am the friend of its happiness: when these things can be said, then may that country boast its constitution and its government.” William Lloyd Garrison burned copies of the Fugitive Slave Law and the Constitution. Thaddeus Stevens and his companions fought tooth and nail to place unimpeded lawmaking power in the legislative branch during the period of Radical Reconstruction. To build the necessary political constituency, socialists can tap into the history of past struggles for democracy in the United States. Rana knows the importance of these struggles. In writing that the Constitution’s flaws from a “‘one person, one vote’ perspective, can be almost too numerous to list,” he is intentionally harkening back to the language of universal and equal rights that dominated the civil rights period.

The Constitutional Bind is a comprehensive and accessible account of the Constitution as the central force in American society over the past two-and-a-half centuries. The undemocratic political system is a daunting obstacle, but it has a pockmarked history, just like everything else made by human hands. Previous generations of Americans struggled for democracy, and understanding the history of those struggles—the good and the bad—will only benefit those picking up where others left off.