Courting Catastrophe

Every scholar — maybe every person — should have an intellectual opposite number: someone you agree with about the most basic facts but who nevertheless interprets those facts so radically differently that you end up disagreeing about almost everything. Within the field of U.S. constitutional history, my opposite number is Aziz Rana, who this past spring released his second tome, an 800-page history-cum-polemic entitled The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them. Covering roughly 1887 to 1980, the book’s target is a form of constitutional discourse that Rana calls “creedal constitutionalism” and associates with President Barack Obama’s oft-repeated suggestion that the Constitution “had at its very core the ideal of equal citizenship under the law” and “promised people liberty and justice and a union that could be and should be perfected over time.”

Rana makes no bones about his condemnation of Obama-style constitutional discourse, with its “belief in the national narrative of unfolding equality and liberty.” This belief rests, he says, on “three ideological pillars: an anti-totalitarian account of individual liberty in market capitalism; embrace of American checks and balances, with the Supreme Court at the forefront; and a commitment to U.S. global leadership and primacy.” This, Rana suggests, is what Obama “defends as the essence of American liberal nationalism.”

Rana treats Obama’s attractive version of liberal constitutional discourse as though it were a naïve account of our constitutional history, rather than a carefully calibrated, self-conscious effort to reclaim the Constitution as a basis for moderate, progressive liberal egalitarianism. “The call to remain true to [James] Madison,” Rana suggests, is a kind of benighted ancestor worship, one that ironically “amounts to an invitation to hold firm to the very arrangements that have facilitated [an] authoritarian brand of politics that someone like Obama condemns as un-American.” Even the musical Hamilton, so obviously a witting rewriting of history, comes in for criticism as “mythmaking and hagiography.”

Rana tells a different story. He sets out to show that the Constitution was perfectly capable of functioning as a tool for settler colonialism and imperialism, and that there were always alternative versions of constitutional critique, including socialist, antiracist, and anti-colonial visions. There was, he argues, never a genuine national consensus about any aspect of our constitutional document or practices. And the period in which the United States began to export a version of American constitutionalism and constitutional values abroad was simultaneously “filled with gross U.S. violations of those very values.”

It’s not an exaggeration to say that my professional and academic careers to date exemplify a version of the ideology Rana comes to debunk. I teach and write about constitutional law and constitutional history. I inherited the authorship of a widely used constitutional-law casebook whose origins can be traced back to 1937. I served as a constitutional adviser to the U.S. occupation forces in Iraq, helping to structure the preliminary document that would eventually evolve into the Iraqi constitution. I even wrote a long biography of Madison. In short, I represent everything for which Rana has an unaffected scorn.

That said, I agree with nearly all of Rana’s factual account of U.S. constitutional history. I agree that Madison and other framers sought to constrain democracy in favor of constitutional republicanism. I agree that, at least through the Civil War, the key geopolitical purpose of the Constitution was to facilitate U.S. expansion across the North American continent, a process that entailed the sometimes-genocidal displacement of American Indians and that also depended in important part on the labor of enslaved people of African descent. I agree that, in the late-19th and early-20th centuries, the Constitution took on a new geopolitical function, namely enabling American expansion into an empire encompassing both Atlantic (Puerto Rico, Cuba) and Pacific (Philippines, Guam) possessions. I agree that there were always dissenting voices criticizing the Constitution, although I would add to Rana’s account that those have come as often from the right as from the left. (Think of Confederate constitutionalism before and after the Civil War, or the very-old-and-still-going-strong movement to make the Constitution expressly Christian.)

Rana’s skeptical historicism is important. His book is readable and lively, a kind of scholarly “people’s” history of the Constitution since 1887. If more people understood the complexity and multivalence of our constitutional tradition, that would be terrific. There is value in acknowledging that the Constitution is flawed, both as a document and as a set of historically unfolding social practices, much as there is in acknowledging the historical reality of the original constitutional compromise on slavery.

And yet, for all the civic and scholarly value of seeing our Constitution clearly, there is something fundamental in the disagreement that Rana’s normative interpretive choices occasions in me. To put it simply, I think Rana slights the realities of what a constitution — any constitution — necessarily entails. Both as written and as institutionally expressed, a constitution must always have two aspects. One essential element of every constitution is its ordering of the institutions that exercise power. The other essential element is its expression of certain idealized values.

The part of our Constitution that orders governmental power is highly evolutionary. It would have to be, given that Madison’s Constitution was designed for a tiny republic clinging to the eastern seaboard and today the United States is an enormous country clinging to the position of global superpower. It is in the nature of states to seek their own self-defense and self-interest, however defined. Therefore a constitution must enable the state to pursue both its own defense and the policies that its controlling forces consider to be in their own self-interest. (This latter point was classically made by Philip Bobbitt in The Shield of Achilles: War, Peace, and the Course of History, which makes for edifying reading alongside The Constitutional Bind.) It follows that the Constitution could not have somehow prevented the settlement of North America by people of European origin nor America’s rise to imperial status and stature. Alternative aspirational versions of the Constitution were certainly articulated in various historical counterdiscourses. But they could have become actual expressions of the Constitution only if the forces supporting them had taken power.

As for the part of the Constitution that conveys idealized values of liberty and equality, it amounts to words (we call them law) that can become manifest in the world only when stable institutions give them effect by using particular interpretive practices. Sometimes in U.S. history the institutions giving effect to rights have been Congress or the president or state governments. Since the 1950s, the main institution has been the Supreme Court, a special target of ire for today’s progressives (unlike their immediate generational predecessors) because of the careless way the Democratic Party managed to lose control of it over the last couple of decades.

Law and courts are highly imperfect engines of social improvement. They are only ever as good as the people who make and apply the laws. The question to ask about them, as indeed about every institution, is not whether they are perfect, but whether they are better than the available alternatives. Would you rather have the Supreme Court interpret the Constitution — or President Donald Trump?

The constitutional values of liberty and equality are, of necessity, underspecified, because they are made of language. When Barack Obama invokes them, he is doing with words what any constitutional actor inside or outside the courts does with such words. He is trying to deploy those words to create real-world outcomes that correspond to his preferred values. That’s what the social practice of constitutional interpretation is — and all it ever can be.

So when Obama quotes the Preamble to call for a “more perfect union,” he knows perfectly well that he is using a meaning of the word “perfect” that post-dates the framing. He knows that he is offering a willful misprision, that the framers were calling for a union that was more “perfect” in the legal sense of being more unified than was the union under the Articles of Confederation. The man who was president of the Harvard Law Review before he was president of the United States knows that, in the modern sense of the term, unlike the 18th-century sense, you can’t grammatically modify “perfect” any more than you can modify “unique.”

Like an increasingly large number of Americans, Obama knows very well that our constitutional tradition was born in exclusion, oppression, and violence. He’s trying to make the United States better by taking our myths and updating them for his purposes — for our purposes.

There are always revolutionaries who would prefer that we not update and improve our inherited traditions and myths but cast them aside and start anew. Such revolutionaries, from left to right, will always be critics of constitutional tradition, precisely because it is tradition. It evolves over time, sometimes gradually and sometimes by fits and starts. It is noteworthy that almost all the major transformational moments in U.S. history have taken constitutional form in some way. In all our dissensus and dissatisfaction, we have tended to converge on the discourse of the Constitution as a way to make progress, however defined.

Within the legal academy, skepticism of the constitutional tradition’s worth tends to ebb and flow based on scholars’ assessment of the virtues of the institutional actors holding constitutional power at the time. Today, with the Supreme Court controlled by conservatives, many critics on the left are prepared to encourage legislative assaults on the institution, fueled by the argument that the Constitution is more a function of politics than law. Thus, for example, the law professors Samuel Moyn, of Yale Law School, and Nikolas Bowie, of Harvard Law School, both testified before President Joe Biden’s Commission on the Supreme Court that there should be more, not less, political control over the Supreme Court, an argument against judicial independence that was favored by hard-line conservatives from the era of the Warren Court through, at least, the Reagan years. (I testified on the old liberal side, emphasizing the evolutionary role of the court and the absence of realistic alternatives.)

Yet although today’s left legal academics gleefully criticize constitutionalism for hiding politics behind the veil of liberal law, few are prepared to reject the whole undertaking of having a constitution — or of trying to use the Constitution for progress. Before the commission, Moyn and Bowie both maintained that it was constitutionally permissible to constrain the court, paying lip service at least to the institutional curbs imposed by the Constitution as law. Rather than proposing the more radical solution of getting rid of the Constitution altogether, both favor a more democratic Constitution as a means to social change.

Even Rana, for all his efforts to overthrow the idol of the Constitution, finds himself, in his conclusion, unwilling to break free entirely from the inherently conservative notion that the progressive left should use the framework of a Constitution to achieve its ends. After flirting with strategies of “rupture” and “norm-breaking,” he calls for “careful judgment” of when to use them because of the risk of unleashing similar strategies on the right. Ultimately, Rana still wants a constitution of some kind: an anti-imperial one amended and legitimated by popular will.

Such a new Constitution would, of course, still be a legal document, and thus a manifestation of the liberal idea of law. It would still be a tool for effectuating power relations, albeit different ones than exist now. And it would still embody idealized, aspirational values, including equality and liberty. No doubt that is part of why I see Rana as my opposite number, not my Schmittian enemy. He wants a more perfect constitutional order every bit as much as Obama does, or I do.

There is, in the end, no reason to treat the Constitution with blind veneration. There is reason, however, to ask whether the idea that the Constitution has failed us is likely to make us better or worse off as a people. Preserving constitutional tradition through updating and improvement is rarely revolutionary. But constitutional tradition opens the possibility of holding together a fractious and fractured polity and finding enough common ground for the United States to continue to exist. That seems to me very much better than the alternative.