The Bill of Rights: Or, How I Came to Defend the Constitution

Luke Pickrell provides a short history of America's attachment to the Bill of Rights.

Aziz Rana’s new book, The Constitutional Bind, contains a fascinating section on the Bill of Rights. Most of the references below come from Chapter Nine of the book, “The Good War and Constitution Worship,” and its footnotes. 

Before the 1940s, the Bill of Rights received little attention in American political life. Rana notes that the 1841 and 1891 anniversaries of its ratification “passed with little fanfare.” Woodrow Wilson, president from 1913 to 1921, never mentioned the Bill of Rights in public speeches, and between 1919 and 1937, the Supreme Court referred to it only once. It wasn’t until 1938 that the document was moved to the National Archives and put on public display.

World War II dramatically reshaped the public image of the Constitution. By the early 1940s, fundamental constitutional reform was no longer part of mainstream political discourse. Instead, Rana explains, a consolidating faith took hold: the Constitution came to symbolize the anti-totalitarian American way of life — a cultural and political safeguard against dictatorship. The war narrowed the political imagination. Americans were told they had three choices: fascism, communism, or constitutional republicanism.

It’s hard to overstate how much World War II tightened the constitutional shackles. As Europe destroyed itself, the U.S. political system — that is, the Constitution — looked increasingly attractive. Many previous skeptics, including Charles Beard and A. Philip Randolph, began to have a change of heart. The U.S. wasn’t flawless, but should the Constitution be changed now, when “the country could find itself marching toward Stalinist purges or fascist tyranny”?

That same argument echoes today: Should we change the Constitution? No, say many liberals — that’s what the Right wants. Better to defend what we have and wait for calmer days (which, conveniently, never arrive).

By the time the U.S. entered the war, the country had been “swept up in one of the most extensive mass celebrations in national history, far greater than any previous constitutional anniversary.” Roosevelt declared December 15 “Bill of Rights Day,” and almost everyone closed ranks. According to Rana, “fully one-quarter of the nation’s population…belonged to organizations that ‘actively supported’ the celebrations,” which included spectacles like “a simultaneous reading of the Bill of Rights in all 83 [Chicago] neighborhoods.”

Today, many Americans conflate the Constitution with the Bill of Rights. But that wasn’t always the case. For much of U.S. history, “the Constitution referred to a structure of governance and decision-making, as well as a set of rights protections, chief among them property rights.” The key phrase is “structure of governance and decision-making.” Political freedoms like those found in the Bill of Rights are necessary for a democratic political system, but a bundle of political freedoms doesn’t make a political system democratic. Universal and equal suffrage — one person, one equal vote — is the core democratic right. Denied the right to equal representation, said Tom Paine, people become slaves.

In a recent interview with Cosmopod, Rana makes a vital point: the Bill of Rights uses the language of universal rights, but the Constitution does not grant or ensure those rights. Instead, it often endangers them. Its minoritarian features — an unelected judiciary, an empowered executive, a malapportioned and gerrymandered legislature — place universal rights in the hands of undemocratic institutions.

The Constitution is not the protector of rights; it is their greatest threat, precisely because it denies the core democratic right to equal representation.

Americans were not always in love with the Constitution. But war, the rediscovery of the Bill of Rights, and a rapid and effective campaign of ideological transformation changed that. New myths took hold. What if the Constitution wasn’t about protecting property and restraining the majority through mechanisms like the Senate, but instead was about personal freedom? What if “individual autonomy” were the Constitution’s beating heart? What if the Constitution were the Bill of Rights? That, surely, would be a document worth defending. Cue the flags and the national anthem.

But times are changing. Liberals — to use a fraught but serviceable term — are beginning to feel the pressure of the constitutional bind. Trapped between a reverence for the Constitution and a growing awareness that it helped produce Trump, many are spiraling into cognitive dissonance, which manifests in awkward headlines, strained editorials, and muddled proposals like Ziblatt and Levitsky’s call to “democratize democracy.”

Meanwhile, on the Left, socialists are rediscovering the democratic-republican core of classical Marxism. As cracks in the system widen, more people will be forced to choose: defend the existing Constitution, or fight for a democratic alternative.