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, which inspired this post. Most of my references come from Chapter Nine of the book (The Good War and Constitution Worship) and his footnotes.
Before the 1940s, Americans had little to say about the Bill of Rights. Aziz Rana notes that the 1841 and 1891 anniversaries of their ratification “passed with little fanfare.” In his public statements, Woodrow Wilson (in office from 1913 to 1921) never referenced the Bill of Rights, and the Supreme Court “noted the existence of the Bill of Rights only once between 1919 and 1937.” It was only in 1938 that the text was moved to the National Archives and put on public display.
World War II provided a much-needed boost to the Constitution’s public image. Rana writes, “By the early 1940s, issues of fundamental reform no longer shaped the constitutional discussion. Instead, conversations reflected a consolidating faith that the document was central to an anti-totalitarian American way of life, which culturally and politically safeguarded citizens from dictatorship.” War shrank the parameters of political imagination. Americans were presented with 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”?
The same concern is raised today. Should we change the Constitution? No, that’s what the Right wants to do. It's far better to protect what exists than rock the boat. We can discuss changes once the storm blows over (funny how it never does).
By the time America entered the war, it 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. 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.”
These days, many people consider the Constitution to be the Bill of Rights. But that wasn’t always the case; Americans didn’t always equate the Constitution to a set of (minimal) political and social freedoms. In the past, “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.
Rana made an important point in a soon-to-be-released interview with Cosmopod: the Bill of Rights is based on universal rights that exist for all people and 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. In fact, 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 Consitution is the greatest threat to individual rights because it denies universal and equal suffrage.
Americans didn’t always have warm feelings toward the Consitution. But war, the subsequent rediscovery of the Bill of Rights, and a rapid and effective project of changing hearts and minds silenced most critics. New myths were created. What if the Constitution wasn’t about protecting property and constraining majority opinion through minoritarian checks like the Senate, but about giving each American the freedom to speak her mind? What if “personal autonomy” was at the heart of the Sacred Scroll? What if the Constitution was the Bill of Rights? Surely, that document would be worth defending. Thank you, Founding Fathers! Cue the flags and music, etc.
However, times are changing. Liberals (to use a fraught term) are starting to feel the constitutional bind. They are stuck between constitutional veneration and a growing understanding that the Constitution gave us Trump. The result is extreme cognitive dissonance, manifesting in New York Times articles and linguistic gibberish (case and point: Ziblatt and Levitsky’s proposal to “democratize democracy”). At the same time, socialists are rediscovering the democratic-republican roots of orthodox Marxism.
Those on the fence will be forced to defend the existing Constitution or fight for a democratic alternative.